Blakelock v Police
[2019] NZHC 2487
•1 October 2019
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2019-409-000100
[2019] NZHC 2487
BETWEEN ALFONSO LOUIS BLAKELOCK
Appellant
AND
NEW ZEALAND POLICE
Defendant
Hearing: 26 September 2019 Appearances:
B Shamy and K Gray for Appellant J H Whitcombe for Respondent
Judgment:
1 October 2019
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 1 October 2019 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date 1 October 2019
Introduction
[1] Alfonso Blakelock, the appellant, pleaded guilty to a charge of assault with intent to injure. Judge Couch refused to grant him a discharge without conviction,1 and instead sentenced him to 150 hours’ community work and 12 months’ supervision.2
1 Police v Blakelock [2019] NZDC 9978.
2 Police v Blakelock [2019] NZDC 13805.
BLAKELOCK v NEW ZEALAND POLICE [2019] NZHC 2487 [1 October 2019]
[2] The appellant appeals the refusal to grant a discharge without conviction on the grounds that the Judge erred in his interpretation of the Immigration Act 2009 when determining the consequences of conviction, and that the circumstances warranted a decision to discharge him without conviction.
Facts
[3] In the early morning of 16 November 2018, the appellant was working as a security guard at the strip club, Calendar Girls. He asked the victim and an associate of the victim to leave the premises, and escorted them to the top of the flight of stairs. The victim was moving slowly and grabbed onto the stair handrail. The appellant punched the victim once in the face then pushed him down the stairs. He followed the victim to a small landing, kneed him in the chest, punched him in the face, and then pushed him into a wall. He punched the victim twice more in the body then was briefly restrained by the victim’s associate. The victim grabbed the appellant around the waist, and the appellant threw him halfway down the second set of stairs. He walked down and pushed the victim to the bottom of the stairs with his foot. The appellant punched the victim once more and picked him up before being restrained by another staff member.
[4] The victim suffered cuts and bruising to his face and chest from the assault as well as headaches and dizziness. In explanation, the appellant stated he had been having a bad day and that the victim and his associate just kept going.
District Court decision
[5] Judge Couch assessed the gravity of the offending as moderately serious. The assault was prolonged, it involved repeated blows including to the victim’s head, and it appeared the appellant would have continued to assault the victim had he not been eventually restrained. The Judge did not consider provocation was a mitigating factor. He took into account the appellant’s circumstances, namely that shortly before the incident the appellant’s grandfather had been diagnosed with cancer and the appellant had gone through a relationship break up, but did not accept that worry about these issues constituted a significant mitigating factor either. Judge Couch did accept as
mitigating factors the appellant’s otherwise good character, prompt guilty pleas and voluntary security work following the 15 March attacks.
[6] The Judge then turned to the consequences of conviction. The appellant submitted that he could lose his statutory certificate of approval as a security guard and subsequently his employment, and also that he may be deported. Judge Couch found that the appellant did not fall within s 161(1) of the Immigration Act, so there was no risk of him being deported if convicted. He did consider there was a very real prospect that the appellant’s certificate of approval would be cancelled, but that it was not inevitable, and, in any event, the appellant had other skills as a tiler and steelworker.
[7] In these circumstances, even assuming the appellant would have his security guard certificate revoked, the Judge was not satisfied that that would be a consequence out of all proportion to the gravity of the offending. The application was therefore declined.
The legal test for a discharge without conviction
[8] Section 106 of the Sentencing Act 2002 permits a Court to discharge an offender without conviction. Section 107 provides that a Court must not do so unless satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[9] The Court of Appeal has outlined the approach for determining such applications:3
(a)first, consider all the aggravating and mitigating factors relevant to the offending and the offender to assess the gravity of the offending;
(b)second, identify the direct and indirect consequence of the conviction for the offender; and
3 Z v R [2012] NZCA 599, [2013] NZAR 142 at [27].
(c)third, consider whether those consequences are out of all proportion to the gravity of the offence.
The Court then must consider whether to exercise its discretion to grant a discharge without conviction, although it would be rare for a discharge not to be granted under s 106 where s 107 is satisfied.4
Principles on appeal
[10] Appeals against the proportionality test under s 107 are by way of rehearing, with the appellate Court making its own assessment of whether the criteria are established.5 If a discharge without conviction should have been granted, then there will have been a material error by the sentencing Judge, or a miscarriage of justice will have occurred for any other reason, and so the appeal against conviction must be allowed.6
Submissions
Appellant’s submissions
[11] Mr Shamy, for the appellant, submits that the Judge misdirected himself as to the application of s 161 Immigration Act, which provides, relevantly:
(1) A residence class visa holder is liable for deportation if he or she is convicted, in New Zealand or elsewhere,—
…
(b) of an offence for which the court has the power to impose imprisonment for a term of 2 years or more, if the offence was committed not later than 5 years after the person first held a residence class visa;
[12] The appellant obtained residency in New Zealand on 9 April 2014, and the offending occurred on 16 November 2018, bringing it within the five year period envisaged by s 161(1)(b). Mr Shamy submits that the Judge erroneously considered
4 Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [13].
5 H v R [2012] NZCA 198 at [35]-[36].
6 Criminal Procedure Act 2011, s 232(2)(b) or (c); and Jackson v R [2016] NZCA 627 at [12].
whether the appellant’s sentencing occurred within the five year period, when subs (b) in fact relates to the date of the offending.
[13] Mr Shamy accepts that the appellant’s offending was properly assessed as of moderate gravity, but maintains that the fact he will be liable for deportation for the next 10 years and could, in fact, be deported, is a very serious consequence.7 Added to this is the potential loss of his employment as a security guard, which was the basis for a discharge without conviction in Phipps v Police.8
[14] Mr Shamy submits that these consequences of conviction are out of all proportion to the gravity of the offending, and a discharge without conviction should be ordered.
Respondent’s submissions
[15] Mr Whitcombe, for the respondent, accepts that the Judge erred in his application of the Immigration Act, and that the appellant will be liable for deportation if convicted. He submits, however, that this consequence is still not out of all proportion to the gravity of the offending. Mr Whitcombe refers to Zhao v Police, in which Andrews J considered the Court should not “intervene to try and impose their perception of what the right immigration consequences should be”, especially given there is an opportunity to appeal against deportation and to apply to the Ministry to cancel and suspend a deportation notice.9 The Court made similar comments in George v Police.10 Mr Whitcombe submits that it is far from certain that the appellant will be deported, and that it is not out of all proportion for him to be subject to the scrutiny of Immigration New Zealand.
[16] In regard to the appellant’s potential loss of his security licence, Mr Whitcombe submits that as the offending occurred during the course of his employment as a security guard, it is appropriate for the Private Security Personnel Licensing Authority to make a determination as to his suitability to continue to work in that field.
7 Immigration Act 2009, s 167.
8 Phipps v Police [2015] NZHC 614.
9 Zhao v Police [2014] NZHC 3121 at [23], citing Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011 at [14].
10 George v Police [2014] NZHC 1725 at [46].
[17] He contends the appellant has not shown that consequences of a conviction are out of all proportion to the gravity of the offence, and so the appeal should be dismissed.
Analysis
[18] No issue is taken with the Judge’s assessment of the gravity of the offending, and I agree that the offending can be classed as moderately serious. Even taking into account all the circumstances canvassed by Mr Shamy, including the particularly trying circumstances for Mr Blakelock when he was called in to work that night, the degree of provocation from the two patrons involved, and Mr Blakelock’s remorse and efforts to address his offending, the gravity of the offending cannot be reduced to low.
[19] I accept that the risk of the appellant having his security guard certificate revoked is not a sufficiently severe consequence, particularly given his other employment options, to reach the statutory threshold. What is in issue is whether the risk of being deported, which is an additional factor not taken into account by the District Court Judge, elevates the consequences of the offending to the point where they can be seen as out of all proportion to the gravity of the offending.
[20] Under the Immigration Act, Mr Blakelock is automatically liable for deportation on the commission of this offence. This liability for deportation lasts for a period of 10 years.11 If it is intended to execute the deportation of the person, a deportation liability notice must be served on that person pursuant to s 170.
[21] Because Mr Blakelock’s liability arises under s 161, his only right of appeal if a deportation liability notice is served would be on humanitarian grounds under s 206. The statutory threshold for allowing such an appeal is very high. It can only be allowed where the Tribunal is satisfied that there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand, and that it would not, in all the circumstances, be contrary to the public interest to allow the appellant to remain in New Zealand. Thus, an appeal against deportation will only succeed in limited circumstances.
11 Section 167(1).
[22] However, it is clear that becoming liable for deportation does not automatically mean a deportation liable notice will be issued and, even if it is, the Minister has a discretion to, by written notice, suspend a residence class visa holder’s liability for deportation for a period not exceeding five years, subject to the visa holder complying with any conditions stated in the notice.
[23] Both counsel have cited authority regarding the courts’ approach to discharge without conviction where deportation is a possible consequence of conviction. Mr Whitcombe points out that the courts have been unwilling, in a number of cases, to usurp the function of the appropriate immigration authorities.12 However, Mr Shamy responds by citing Carroll v Police, a recent decision where Gendall J distinguished those cases because they related to people seeking visas or permits, not people at risk of losing an established residency status.13 In that case, Gendall J agreed with the decision in Jeon v Police which found that there will be some cases where the s 106 discretion should be exercised by the Court without leaving the determination to the Minister of Immigration.14
[24] In Carroll v Police, Mr Carroll sought a discharge without conviction after punching a security guard at a bar in the face with a closed fist. On appeal he relied not just on the offending being a temporary lapse of judgment from a person with an otherwise unblemished record, and who paid significant reparation to the victim, but on the fact that he was subsequently notified that he was liable to be deported under s 161(1)(i)(a)(iii) of the Immigration Act 2009. The deportation notice was suspended for five years on the condition that it would only be pursued if he were to commit another offence in the meantime. However, in that case, there was an acknowledged risk that Mr Carroll’s business, in which he employed 19 people, put him at risk of prosecution under the Land Transport Act 1998 for acts or omissions of his company’s employees.
12 See Zhao v Police, above n 10; Zhang v Ministry of Economic Development, above n 10; George v Police, above n 11; R v Foox [2000] 1 NZLR 641, (1999) 17 CRNZ 216 (CA); Liang v Police HC Wellington AP38/02, 16 April 2003; Steventon v Police HC Auckland A108/01, 2 November 2001; and Yalomatua v Police [2013] NZHC 530 at [28].
13 Carroll v Police [2018] NZHC 2930.
14 Jeon v Police [2014] NZHC 66 at [20].
[25] The Court held that the risk of deportation was not just a possibility as he had received a deportation liability notice, albeit suspended for five years, whereas the offending was a single punch. The Court found that the “present threat of deportation in this case is out of all proportion to Mr Carroll’s offending”.
[26] Mr Blakelock’s position is more speculative. He has crossed the threshold for liability for deportation, but he has not been served with a deportation liability notice. If he is, there seems no reason for him to be treated differently from Mr Carroll where deportation would only follow on a further conviction. There is nothing to suggest he is at an enhanced risk of conviction, as was the case in Carroll, that warrants the Court intervening to grant a discharge without conviction.
[27] Thus, while I accept the Court may intervene to pre-empt immigration decisions by granting a discharge without conviction, I do not consider this is a case where that is appropriate. The appellant’s offending was violent and not low level in terms of its overall gravity. While I accept that the impact of having the risk of deportation hanging over the appellant for up to 10 years is a substantial consequence, I do not consider it is out of all proportion to the gravity of the offence. I also do not consider the addition of his potential loss of his security guard’s licence adds enough to bring the consequences out of all proportion to the gravity of the offending.
Conclusion
[28] The Judge erred in his application of the Immigration Act. A consequence of conviction is that the appellant will become liable for deportation. However, I do not consider that immediate deportation is an obvious consequence. I see his situation as similar to that in Carroll, where he is likely to be deported only if there is further offending. That is a proper and reasonable approach. I am unable to see that the consequences of conviction are out of all proportion to the gravity of the offence.
[29]The appeal is therefore dismissed.
Solicitors:
Public Defence Service, Christchurch
Raymond Donnelly & Co., Christchurch
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