Hearing:	31 October 2023
Court:	Glazebrook, O’Regan, Ellen France, Williams and Kós JJ
Counsel:	A J Bailey, E Huda, R J T George and A G F Lange for Appellant R M A McCoubrey and M C M Nash for Respondent
Judgment:	3 May 2024

JUDGMENT OF THE COURT

A The appeal is allowed.

B The conviction for participating in an organised criminal group is quashed.

CThe application for a discharge without conviction is remitted to the High Court for reconsideration.

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REASONS

(Given by Ellen France J)

Table of Contents

Para No
Introduction	[1]
Context	[6]
The High Court sentencing	[10]
The Court of Appeal decision	[17]
The case for each of the parties	[23]
Discussion	[29]
The process applicable to Ms Bolea	[31]
Relationship between these processes and the discharge decision Assessment	[39] [43]
Conclusions	[56]
Result	[59]

Introduction

This appeal concerns how a sentencing court is to treat the risk the defendant will be deported when considering an application for a discharge without conviction under s 106 of the Sentencing Act 2002.
Elizabeth Bolea, an Australian national, pleaded guilty to a charge of participation in an organised criminal group.[1] At sentencing, Ms Bolea sought a discharge without conviction.[2] Under s 107 of the Sentencing Act, before discharging an offender without conviction the court must be “satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence”. Ms Bolea said that the likely prospect she would be deported to Australia, resulting in the separation of her family, was a consequence of her conviction that would be out of all proportion to the gravity of her offence.
[1]Crimes Act 1961, s 98A.
[2]Sentencing Act 2002, s 106.
In the High Court, the sentencing Judge declined to grant Ms Bolea a discharge without conviction and imposed a sentence of four months’ home detention.[3] In doing so, the Judge accepted that Ms Bolea’s liability to deportation would be a consequence of her conviction. However, the Judge drew a distinction between liability for deportation and the risk of actual deportation in considering the availability of a discharge without conviction. In particular, the Judge said that if she was ultimately deported, this would be a consequence of her offending, not of her conviction, with the result that the risk of actual deportation was not taken into account in the s 107 analysis.
[3]R v Bolea [2022] NZHC 2998 (Campbell J) [HC judgment] at [31] and [49].
The Court of Appeal dismissed Ms Bolea’s appeal against sentence. It concluded that “in a very real sense” deportation resulting from a process in which the immigration decision maker can consider the gravity of the offending and the appellant’s personal circumstances “can validly be regarded as a consequence of the offending and not the conviction”.[4]
[4]Bolea…

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.

Continue reading Bolea v R

Details

AGLC: Bolea v R [2024] NZSC 46
Case: [2024] NZSC 46
Decision Date: 3 May 2024

CaseChat Overview and Summary

In Bolea v R, Elizabeth Bolea, an Australian national, appealed against her conviction for participating in an organised criminal group, arguing that the risk of deportation as a consequence of her conviction should have been considered in the sentencing process. The appeal centred on whether the risk of actual deportation should be treated as a consequence of her conviction or her offending. The Court of Appeal had dismissed Ms Bolea's appeal, holding that the risk of deportation was a consequence of her offending. The Supreme Court of New Zealand allowed the appeal, holding that the risk of actual deportation should have been treated as a consequence of conviction. The Court noted that under s 107 of the Sentencing Act, the court must consider whether the offender would be more appropriately dealt with by a discharge, necessitating an individual assessment of the defendant's circumstances. The Court also found that, in the absence of other evidence, both the liability for deportation and the risk of actual deportation should be treated as consequences of conviction. The Court concluded that the Court of Appeal had erred in not treating the risk of deportation as a consequence of Ms Bolea's conviction. The appeal was allowed, the conviction was quashed, and the application for a discharge without conviction was remitted to the High Court for reconsideration.

Orders