Bedi v Police
[2015] NZHC 1138
•26 May 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-404-000441 [2015] NZHC 1138
BETWEEN MARICHI BEDI
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 4 May 2015 Appearances:
B L Sellars for Appellant
K R Muirhead for RespondentJudgment:
26 May 2015
JUDGMENT OF COURTNEY J
This judgment was delivered by Justice Courtney on 26 May 2015 at 4.00 pm
pursuant to R 11.5 of the High Court Rules
Registrar / Deputy Registrar
Date………………………..
BEDI v NZ POLICE [2015] NZHC 1138 [26 May 2015]
Introduction
[1] On 15 May 2014 Marichi Bedi pleaded guilty to one charge of obtaining by deception.1 Judge C S Blackie refused his application for a discharge without conviction. Mr Bedi appeals on the grounds that the Judge erred in concluding that the consequences of a conviction were not out of all proportion to the offending as a result of:
(a) Assessing the offending as more serious than it was;
(b)Wrongly concluding that there was no real risk of Mr Bedi losing his job as a result of a conviction being entered;
(c) Wrongly treating the consequences of a conviction as being only possible rather than inevitable.
Application to adduce further evidence
[2] Mr Bedi applied for leave to adduce further evidence in the form of an affidavit from himself and one from his former fiancée, Ms Jasmeet Kaur Sarna. Whilst fresh evidence may be adduced on an appeal, it is generally necessary to show that the proposed evidence is fresh in the sense that it could not with reasonable diligence have been called at trial and is credible, both inherently and in the broader context of the case.2
[3] The application to adduce further evidence was opposed on the ground that, to the extent it is fresh in that it describes events that have occurred since the sentencing, it is not relevant because the appeal is to be determined on the basis of the evidence as it stood at the time of the decision to refuse the application. Otherwise, it is said that the evidence is not sufficiently fresh and, in any event, that
it would have made no difference to the assessment of the application.
1 Crimes Act 1961, s 240(1)(c).
2 R v Bain [2004] 1 NZLR 638 (CA) at [18]-[27], affirmed on appeal in Bain v R [2007] UKPC
33 (2007) 23 CRNZ 71 at [34]; Fairburn v R [2010] NZSC 159, [2011] 2 NZLR 63 at [24];
Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 AT [120].
[4] I do not accept Ms Muirhead’s submission that updating evidence of events that have occurred subsequent to the decision cannot be adduced for the purposes of an appeal. The fact that a consequence asserted as real by the appellant at sentencing but rejected by the Judge has come to pass is a matter that is properly taken into account on appeal. For this reason I allow Mr Bedi to adduce the evidence at paragraphs 1 – 5 and 12 – 17 in which he explains that, following his conviction, he lost his job, has been unable to obtain employment of the same kind and is now working part-time as a courier driver.
[5] However, I agree that some of the evidence is not fresh. I exclude paragraphs
7 and 18 – 23, which simply address the circumstances of the offending and contain material that could have been put before the Judge at sentencing.
[6] I also exclude paragraphs 24 – 33 and Ms Kaur’s affidavit in its entirety. They address the personal consequences to Mr Bedi and Ms Kaur of the conviction, namely that their engagement was called off as a result of his conviction and that so long as he has a conviction Ms Kaur’s family will not permit the marriage. In addition, they assert that the decision has consequences for Ms Kaur because of the stigma attached to a woman in the Sikh culture whose engagement has ended. The effect on Mr Bedi’s prospective marriage was apparently not raised in the District Court and no explanation was offered for raising it now. Apart from the fact of the marriage being cancelled the information is not new.
Discharge without conviction under s 106 Sentencing Act 2002
[7] Under s 106 of the Sentencing Act an offender may apply for an order that he or she be discharged without conviction. However, the discretion under s 106 is subject to s 107 which provides that:
The Court must not discharge an offender without conviction unless the Court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[8] Under s 107 a sentencing Judge must consider, first, the gravity of the offending; secondly, the direct and indirect consequences of a conviction; and thirdly, whether the consequences of a conviction would be out of all proportion to
the offending. It is only if the Court is satisfied as to these requirements that it can go on to exercise its residual discretion under s 106.
Sentencing in the District Court
[9] The offence to which Mr Bedi pleaded guilty arose from an insurance fraud. On 18 February 2012 he purchased a motor vehicle (though ownership was not transferred until 28 February 2012). Two days after the purchase, on 20 February
2012, the same vehicle was delivered to a scrap yard on Mr Bedi’s instructions. Later that same day Mr Bedi insured the vehicle for a sum of $10,000. Sometime between 20 February and 11 March 2012 the vehicle was crushed. On 11 March
2012 Mr Bedi reported the vehicle stolen and made an insurance claim.
[10] Judge Blackie considered that the offending was a serious instance of its kind, noting particularly that it had been a deliberate scam with the vehicle acquired and delivered to the scrap metal merchant with the intention that it be crushed, insured after the vehicle had been disposed of to the scrap metal merchant and a false declaration of theft made to the Police followed by a false insurance claim.
[11] The application for an order discharging Mr Bedi without conviction was advanced primarily on the basis of the effect on Mr Bedi’s immigration status and his employment. On the issue of employment Mr Bedi had deposed that his employment as a chef would only be continued if he was not convicted and that assessment was supported by an affidavit from Mr Bedi’s employer, Mr Sandhu, who deposed as to Mr Bedi’s many positive attributes but concluded by saying that, in accordance with his company’s policy, if Mr Bedi were convicted he would not be able to keep him as an employee.
[12] The Judge did not accept Mr Bedi’s claim that his employment would be in
jeopardy if convicted:3
I am not persuaded on the strength of Mr Sandhu’s affidavit that there is a risk of a defendant losing his employment. Mr Sandhu is the owner and director of the companies for which the defendant works as a chef. He speaks extremely highly of him. Mr Sandhu would be responsible for the
3 At [7].
company policy. I was not referred to any specific conditions of employment where the company’s policy as to persons who have been convicted is referred to. The offending in question is nothing to do with the defendant’s work or his work environment. In reality I regard it as most unlikely that the defendant’s employment would be put at risk by such a supportive employer as Mr Sandhu. This is not a case where a conviction would significantly count against the defendant in relation to his current employment or for that matter when seeking to gain employment in the hospitality industry in respect of which he has such a high reputation.
[13] Nor did the Judge accept that there were serious consequences in relation to Mr Bedi’s immigration status. He reviewed the evidence that Mr Bedi had adduced on this issue, including evidence from an immigration lawyer that in the event of a conviction Mr Bedi would automatically become liable for deportation, that an appeal would probably not succeed and that he would lose his potential eligibility to apply for a permanent resident visa. However, after considering recent decisions with similar features and the submission made by the Police that immigration
matters were best left to the Minister of Immigration, he concluded that:4
In this case on behalf of the Police it was contended that immigration matters are best left to the Minister of Immigration. A prosecutor, relying on documentation obtained from Immigration points out that all cases are decided by a case by case basis on the information provided. If any applicant, such as the defendant, has been charged with an offence he is required to provide full details of the circumstances. A conviction is not necessary to trigger this, merely a charge laid regardless of the outcome. A conviction is not an automatic barrier to an application being granted for a permanent residence visa and there are a number of possible outcomes. These include granting the application, returning for further information, declining an application outright or ordering a stand down period after which the applicant can’t re-apply.
The consequences of a conviction may, but is by no means certain, have some bearing on the defendant’s immigration status, a matter that may need to be considered by immigration authorities, but having regard to the cases I have referred to and the general approach to immigration matters I am not persuaded that this is a case where the consequences of a conviction would be out of all proportion to the offending.
Appeal
The seriousness of the offending
[14] Ms Sellars, for Mr Bedi, submitted that the Judge mischaracterised the offending as serious and submitted that it was properly viewed as moderate; it was
4 At [13] and [20].
committed by a young man in a desperate financial situation and was unsophisticated and foolhardy rather than carefully planned. I consider that the Judge was right to view it as serious. This may not have been the most sophisticated insurance fraud but it was well planned, involved several distinct acts and involved more than a modest amount of money.
The Judge’s assessment of the consequences
[15] Although there is no apparent error in the Judge’s approach to his assessment of the risk to Mr Bedi’s employment, it is evident that his assessment has proved to be incorrect. Mr Bedi’s employment has been terminated and it must be the case that Mr Bedi’s apprehension as to the consequences was correct. Further, not only did Mr Bedi anticipate, correctly, that he would lose the job that he had, he now finds that he has been unable to secure fresh employment as a chef. His explanation is that New Zealand Indian restaurants are generally small businesses in which the chef orders and handles cash. Employers place considerable significance on trust and Mr Bedi is invariably asked if he has any convictions. I accept that the consequences for Mr Bedi of this conviction have been serious even if they may not have appeared to have been so at the time of sentencing.
[16] The second consequence that Mr Bedi relied on related to his immigration status. Mr Bedi came to New Zealand in 2009 and at the time of sentencing held a resident visa. In the District Court Mr Bedi had provided an affidavit from Alistair McClymont, an immigration lawyer of many years’ experience. Having identified Mr Bedi’s immigration status (a resident visa which allowed indefinite stay) Mr McClymont expressed the view that Immigration New Zealand would be aware of the charge and would also be aware of any conviction entered. In Mr McClymont’s opinion Mr Bedi would, if convicted, automatically become liable for deportation pursuant to s 161 of the Immigration Act 2009 and would be unlikely to succeed in an appeal against deportation.
[17] Under s 161 a person becomes liable for deportation if convicted of an offence committed within the first two years of holding a resident visa for which the Court has the power to impose a term of imprisonment of three months or more.
Although there is a right of appeal against deportation in the event of being served with a deportation liability notice, Mr McClymont’s evidence was that the threshold for a successful appeal was very high, with an appellant having to demonstrate that the surrounding circumstances were well outside the normal run of circumstances, “truly an exception rather than the rule”.
[18] In addition to his exposure to deportation under s 161 a conviction would also mean that Mr Bedi would lose his potential eligibility to apply for a permanent resident visa because a person who holds a resident visa but is liable for deportation may not apply for a permanent resident visa.
[19] Ms Sellars submitted that, notwithstanding that the Judge had accurately summarised Mr McClymont’s evidence, his conclusion that the effect of a conviction on Mr Bedi’s immigration status was not certain was contrary to that evidence. The effect of s 161 was that Mr Bedi automatically became liable for deportation with the result that he could no longer apply for a permanent resident visa. As a result, even though he has not yet been served with a deportation liability notice his immigration status was immediately and irrevocably affected and he has the prospect of deportation hanging over him. Ms Muirhead did not dispute this analysis, though drew attention to the fact that people liable for deportation may nevertheless be granted a permanent resident visa “at the absolute discretion of the Minister or an immigration officer”.
[20] I accept that, having regard to the automatic effect of s 161, there were inevitable consequences for Mr Bedi of a conviction being entered. So the Judge was not correct to say, as he did, that it was not certain that a conviction would have a bearing on Mr Bedi’s immigration status. The effect of conviction did result, automatically, in Mr Bedi’s status being less certain and less favourable than it was previously. It is apparent from Mr McClymont’s evidence that he cannot apply for a permanent resident visa and is liable to deportation.
[21] The fact that, as Ms Muirhead points out, the holder of a resident visa who is liable for deportation may still be granted a permanent resident visa at the absolute discretion of the Minister or an immigration officer, is plainly a less favourable
position to be in than a person holding a resident visa who is not liable for deportation. That being the case, I accept that an error was made on this aspect of the application and I therefore turn next to consider whether the actual consequences identified during the course of this appeal are out of all proportion to the gravity of the offence.
Are the consequences of conviction out of all proportion to the gravity of the offence?
[22] I do not accept that Mr Bedi’s loss of his employment and the difficulties he is facing finding fresh employment are out of proportion to the seriousness of the offending. The fact of a conviction creates difficulties for most offenders in terms of future employment. This is particularly true of dishonesty convictions. Mr Bedi’s offending was not minor and did not involve a modest amount of money. As a result, there is nothing unexpected or disproportionate in the consequences he now faces.
[23] Nor do I consider that the change to Mr Bedi’s immigration status is out of all proportion to the offending. I accept that there has been a distinct consequence as a result of the conviction and Mr Bedi’s immigration is less favourable than previously. On the other hand deportation is not inevitable and some prospects exist for Mr Bedi to remain here and to obtain a permanent resident visa. That is properly a matter for the immigration authorities and the Minister. Balancing the nature and seriousness of the offending against the change to Mr Bedi’s immigration status I cannot say that the consequences are out of all proportion.
Result
[24] The appeal is dismissed.
P Courtney J
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