Kumar v Police (reasons)

[2012] NZHC 89

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2011-419-000099 [2012] NZHC 89

JANENDRA VITIYLEA KUMAR

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         2 February 2012

Counsel:         S Bhardwaj for the Appellant

S N Cameron for the Respondent

Judgment:      2 February 2012

Reasons:        9 February 2012

JUDGMENT OF DUFFY J [Re Reasons]

This judgment was delivered by Justice Duffy on 9 February 2012 at 4.30 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:   Bridge  Law  P  O  Box  9114  Waikato  Mail  Centre  Hamilton  3240  for  the

Appellant

Almao  Douch  P  O  Box  19173  (DX  GP20023)  Hamilton  3244  for  the

Respondent

KUMAR v POLICE HC HAM CRI-2011-419-000099 2 February 2012

[1]      On 2 February 2012,  I delivered an oral judgment (Kumar v Police HC Hamilton CRI-2011-419-000099, 2 February 2012) allowing Mr Kumar’s appeal against sentence.  In [7] of the judgment, I stated that I would provide reasons at a later date as to why I had decided to impose a substitute sentence, rather than refer the matter to the District Court.  I am now providing the reasons for that action.  This judgment should be read together with the earlier judgment.

[2]      This is a case where there was a material procedural error in the sentencing process in the District Court.  Mr Kumar had received a sentencing indication from one District Court judge and, on the strength of that indication, he had pleaded guilty to the charge that was laid against him.

[3]      The pre-sentence report supported him receiving the type of sentence that was indicated at the status hearing.   However, when he appeared before another District Court Judge for sentence, a markedly different sentence was imposed on him.

[4]      The Court of Appeal decisions in R v Gemmell [2000] 1 NZLR 695 (CA), R v

Edwards (2000) 17 CRNZ 604 (CA) and Zaheed v R [2010] NZCA 573, (2011) 25

NZTC  20-018  make it  clear that  if  there is  to  be a departure  from  a  sentence indication in circumstances where there has been a change of plea on the strength of the indication, then before sentence is passed on the defendant, he should be given the opportunity to change his plea to one of not guilty and to proceed to a defended hearing.  In that way, a defendant is placed in the position he or she was in prior to the entry of the guilty plea.

[5]      It follows, therefore, that one way of dealing with Mr Kumar’s appeal would have been to allow his appeal against conviction and to remit the matter back to the District Court where his right to defend the charge he faced would have been open to him.  However, by the time the matter was before me, Mr Kumar had served two months of a six month sentence of imprisonment.  Given early release conditions, it was likely that he would have been released after completing three months of his sentence.  If I had sent the matter back to the District Court, and if Mr Kumar had

proceeded with a defended hearing in the District Court and then been convicted of the charge, he would have faced the prospect of being re-sentenced for the offence.

[6]      It was the common view of counsel before me that Mr Kumar was unlikely to be sentenced to imprisonment on the charge a second time, given the change of circumstance brought about by him having already served two months in prison.

[7]      This  was  a  case  where  the  Crown  responsibly  supported  me  taking  a pragmatic approach to dealing with this matter.  The Crown helpfully referred me to Zaheed  v  R  where  the  Court  of Appeal  was  faced  with  similar  circumstances involving a miscarriage of the sentencing process.  The Court of Appeal decided that it would allow the appeal and, with counsel’s concurrence, quash the sentence of imprisonment, and sentence afresh.  In the present case, counsel invited me to adopt that approach.

[8]      In Zaheed, the Court of Appeal recorded at [11] that it was satisfied that the sentence of imprisonment was appropriate and that they were not interfering with the original sentence on the ground that it was manifestly excessive. The same applies here. Given Mr Kumar’s criminal history, I consider that the sentence of imprisonment he received was not manifestly excessive. The problem was that having earlier received an indication that he would receive a non-custodial sentence (most likely home detention), the change to a custodial sentence first required him to be given an opportunity to reconsider the entry of his guilty plea.

[9]      As  in  Zaheed,  the  respondent  in  this  case  did  not  seek  a  term  of imprisonment.  Indeed, as was recognised in Gemmell at [20], once an appellant has served a substantial part of a sentence of imprisonment, the question will arise as to whether the matter should proceed for a second time in the first instance court. Both counsel were agreed that given all that has occurred, the appropriate sentence should be one of home detention, with the imposition of the special conditions set out in the report prepared for home detention, dated 18 November 2010.

[10]     I was satisfied that here, if the matter were to be dealt with again in the

District Court, any sentence that would then be imposed on Mr Kumar would not be

a custodial sentence.  I considered, therefore, that it was appropriate for me to quash the sentence of imprisonment and to impose one of home detention.  It was for that reason that I allowed the appeal against sentence and substituted the sentence of imprisonment with one of three months’ home detention.

Duffy J