Mr Anufe seeks leave to bring a second appeal against refusal to grant a discharge without conviction on one charge of making an intimate visual recording. His application rests on what he says is his near-inevitable deportation and resulting family separation should he be denied a discharge.

The offending

Mr Anufe worked in a retail warehouse in Onehunga. On 18 November 2019 the victim, a customer, entered a disabled bathroom. Mr Anufe used his cellphone to record her through a hole, about 70 mm in diameter and at shin height, as she prepared to use the toilet. We infer that he was apprehended because the victim noticed him squeeze through a gap to get into a back room beside the toilet before she entered it. He admitted the offence and stated that he had done it more than 10 times during his employment at the warehouse.

The sentencing

Judge Sinclair outlined the facts and summarised the test for a discharge without conviction.[1] It is not suggested that she misdirected herself. She accepted that the offending sat at the low to moderate end of the spectrum, but it was premeditated — she found that Mr Anufe had made the hole in the wall — and he had filmed people in this way more than 10 times.[2] The victim’s privacy was violated and the effect on her was “adverse and profound”.[3] The offending also involved an abuse of trust. In mitigation, Mr Anufe had no relevant previous convictions and was able to offer letters of support. He had undertaken 11 hours’ community work and made a donation to a charity. He had also pleaded guilty at an early opportunity and was prepared to offer emotional harm reparation.[4]
[1]Police v Anufe [2020] NZDC 14261 [Sentencing notes].
[2]At [9]–[10].
[3]At [11].
[4]At [13]–[16].
Turning to the consequences of conviction, the Judge noted that Mr Anufe was 33 and a Samoan national in New Zealand on a residence class visa. He has one child and his wife, a New Zealand citizen, was pregnant with a second. Her parents reside with the couple and are financially dependent on them. The Judge referred to an affidavit prepared by an immigration lawyer, Mr Garrett Wong, which stated that there was a high risk Mr Anufe would be liable for deportation and would be unable to establish the exceptional circumstances required for a humanitarian appeal. The Judge cited authorities which indicate that a court should be slow to intervene in deportation decisions, instead leaving them to the relevant authorities to decide.[5] There were…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Anufe v Police [2021] NZCA 253
Case: [2021] NZCA 253
Decision Date: 18 June 2021 at 11.00 am

CaseChat Overview and Summary

In Anufe v Police, the Court of Appeal of New Zealand was asked to decide whether to grant leave to Mr Anufe to bring a second appeal against the refusal to grant him a discharge without conviction on one charge of making an intimate visual recording. Mr Anufe sought leave on the basis of his near-inevitable deportation and the resulting family separation. The Court of Appeal was required to consider whether the court below had correctly assessed the proportionality of the consequences of conviction, particularly the risk of deportation and family separation, against the gravity of the offending. The court also had to determine if the risk of deportation was a consequence of conviction or the offending and whether the court below had overlooked the expert evidence on the risk of deportation.

The Court of Appeal found that the courts below were correct in their assessment. The Court emphasised that courts generally avoid usurping the functions of the immigration authorities, and that deportation is not an automatic consequence of conviction. The Court found that Mr Anufe’s visa status made him liable to deportation but did not trigger it automatically. The Court observed that there was a process to be followed before a deportation order could be made, and that the humanitarian consequences of deportation would be considered in that process. The Court of Appeal concluded that the courts below were correct in finding that the risk of deportation was a consequence of the offending, not the conviction, and that the immigration consequences were a matter for immigration authorities. Consequently, the application for leave to bring a second appeal was declined.

The Court of Appeal's decision reinforces the principle that courts should generally leave the decision on deportation to the immigration authorities, except in rare cases where the likelihood of deportation is very high. The Court found that the gravity of Mr Anufe’s offending, which involved a gross invasion of privacy and abuse of trust, was not outweighed by the humanitarian consequences of deportation. The Court found no process error in the High Court and held that the application for leave to appeal was not seriously arguable.

Orders