Boys v Police
[2024] NZHC 2132
•1 August 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2024-409-96
[2024] NZHC 2132
BETWEEN DANIEL SIMON STUART BOYS
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 11 July 2024 Appearances:
T J McGuigan and Z L Trapski for the Appellant B W D Alexander for the Respondent
Judgment:
1 August 2024
JUDGMENT OF HARLAND J
Introduction
[1] On 8 November 2023, Daniel Boys pleaded guilty to two charges of indecent assault.1 On 9 April 2024, at sentencing, he advanced an application to be discharged without conviction because he contended that the employment and immigration consequences of a conviction were out of all proportion with the gravity of his offending. The Judge entered convictions on both charges2 and ordered the appellant to pay $750 in emotional harm reparation to each victim.3 He now appeals. The appellant maintains that the Judge made various errors of law when assessing his application for a discharge without conviction on both charges.
[2]The Police oppose the appeal.
1 Crimes Act 1961, s 135; maximum penalty seven years’ imprisonment.
2 Police v Boys [2024] NZDC 7611.
3 Police v Boys [2024] NZDC 7642.
BOYS v POLICE [2024] NZHC 2132 [1 August 2024]
[3] I have decided to dismiss the appeal. This judgment sets out my reasons for doing so.
Factual background
[4] The appellant is a citizen of the United Kingdom. He first came to New Zealand in January 2013 while travelling and applied for work visas. In approximately July 2019, he met his partner, and they commenced a relationship. The appellant’s partner is a New Zealand citizen. In January 2022, the appellant applied for a resident visa under the partnership category, based on his relationship. He was granted a resident visa on 20 September 2022.
[5] On the evening of 23 December 2022, the appellant, then aged 37, was at a Christchurch bar with a group of friends.
The first indecent assault
[6] At about 10.30 pm, a 25-year-old female waitress, employed at the bar, was walking towards it when she was stopped by the appellant after he turned around on his seat to talk to her. He outstretched his hand to initiate a handshake and the victim shook his hand briefly. After a short conversation, the appellant reached out again towards the waitress and placed his hand on her breast momentarily with an open palm, without her consent.
The second indecent assault
[7] Between 6:55 pm and 11:55 pm, a 46-year-old woman, who was also a waitress at the bar, was approached by the appellant while she was seated at a table with a friend. The appellant placed an arm around her and attempted to feel her breast with his hand. The victim told him not to touch her, so he removed his arm but attempted to touch her breast again a short time later. The victim told the appellant that she was married and, again, told him not to touch her. The appellant did not attempt to touch her again but remained at her table for a short period before leaving.
Explanation
[8] When the appellant was spoken to by the Police, in explanation, he stated that he was just at the bar having some fun with his friends. He denied indecently assaulting either victim.
Progress through the District Court
[9] The two charges of indecent assault were filed in the Christchurch District Court on 24 December 2022, with a first appearance on 29 December 2022. On 24 January 2023, the appellant pleaded not guilty to the charges and was bailed to appear on various occasions. On 27 March 2023, the appellant pleaded guilty to the charge of indecent assault against the first victim and, on 8 November 2023, pleaded guilty to the charge of indecent assault against the second victim.
[10] The appellant indicated his wish to advance an application for discharge without conviction and this was heard before Judge Lynch on 9 April 2024. In advancing the application, the appellant submitted various affidavits in support, including one from him, one from his employer, another by the head coach of his football club and another by a lawyer with experience in immigration matters (Mr Lange).
[11] Both the appellant’s lawyer and the Police prepared written submissions. There was a Provision of Advice to Courts (PAC) report, a large number of character references supporting the appellant and a letter from the Christchurch City Mission Alcohol and other Drug (AOD) Services indicating that, as at 12 March 2023, the appellant had attended two counselling sessions, fully engaged in them and had a further session scheduled.
[12] As well, the Judge had before him the appellant’s criminal history, revealing a conviction on 13 May 2014 for driving with excess breath alcohol in respect of which he was fined and ordered to be disqualified for a period of six months.
District Court decision
[13] After referring to the facts, the Judge referred to the appellant’s affidavit where he outlined that he did not remember much about the incidents due to the level of his intoxication. The Judge noted the appellant’s deep regret for his actions, which the appellant had said were totally out of character. The Judge referred to the shame and embarrassment the appellant experienced about the way he had behaved and his hope that his actions had not had any lasting effect on the two women.
[14] The Judge then referred to the efforts the appellant had made to address his drinking by undertaking alcohol and drug counselling, including the appellant’s statement that he had not consumed any alcohol since the incidents. The Judge noted that the appellant had written apology letters to the victims. He also referred to the arrival of the appellant’s first child with his partner.
[15]The Judge also referred to the victim impact statements as follows:
[8] The first victim says the assault made her feel uncomfortable and unsafe as this occurred at her workplace, and she continued to be fearful of her safety as a result. She is wary around drunk people, especially males and now “emotionally disconnects” and “sometimes dissociates”. She says she left her job and one of the continuing factors was the assault and having to go back to the place where it happened.
[9] The second victim similarly describes feeling unsafe and awkward when being assaulted and she too continues to fear for her safety. She also experiences emotional disconnect and dissociation. The incident occurred on one of the rare times the victim went out socialising, because of previous bad experiences, which made her feel awful. She does not think Mr Boys is truly sorry and did not fine his apology letter to be sincere.
[16] The Judge next referred to the legal principles that apply to applications for discharge without conviction and then discussed each of the elements he was required to assess.
Gravity of offending
[17]In relation to the gravity of indecent assault offending, the Judge said:
[13] The Court of Appeal in Rahim v R identified that assessing the gravity of indecent assault offending “is an evaluative exercise that is heavily fact- dependent” and:4
the sentencing court is required to assess the seriousness of the criminal conduct involved by reference to factors such as the duration and nature of the contact; the precise details of what part of the complainant’s body was touched; and whether there was skin to skin contact.
[18] The Judge then identified the factors of the offending he considered were aggravating. I set these out verbatim because they attracted some attention on appeal:
[14]The following aggravating factors of the offending are present:
(a) Multiple victims. Separated in time, Mr Boys indecently assaulted two separate victims.
(b) Persistence and premeditation. I elect to treat these two factors together as in this case they are allied. Not only does the offending have a degree of premeditation, Mr Boys has targeted and pestered not one but two women aged 25 and 46 years old. On any view of it, there is a degree of persistence to his conduct, particularly with the second victim.
[19] The Judge did not consider there were any mitigating factors relating to the offending, a finding not challenged on appeal.
[20] The Judge then considered the aggravating and mitigating factors relevant to the appellant. He did not consider the appellant’s previous conviction of driving with excess breath alcohol was relevant and concluded that there were no personal aggravating factors to be brought into account.
[21] As to personal mitigating factors, the Judge referred to the appellant’s guilty pleas (noting that, for the second victim, the plea was entered late), the fact that, but for his previous excess breath alcohol conviction, the appellant was of previous good character, and the Judge acknowledged the appellant’s remorse and his proven commitment to rehabilitation. He referred to the various affidavits highlighting the appellant’s positive personal qualities. In relation to the reference provided by the appellant’s partner he said:
4 Rahim v R [2018] NZCA 182 at [16].
[20] … There is a heartfelt letter from Mr Boys’ partner who says she has accompanied him on many occasions while drinking and has never seen any “foul or disrespectful behaviour” towards women. She states:
He has shown deep remorse and although we truly believe this was out of character and will never happen again, he has still sought help to minimise behaviours that may have contributed to his actions.
[21] Mr Boys’ partner confirms that Mr Boys has acknowledged that alcohol is not conducive to a functional lifestyle and has not had a drink for over a year.
[22] The Judge then referred to the various cases that had been cited to him.5 He provided his view of the cases that had been submitted as follows:
(a)Rahim v R: the Judge noted that the offender, an employee at a hospital, briefly made contact with the back of a 16-year-old girl’s shorts in an elevator, followed by firm contact with her bottom in another elevator. The Judge noted that offending was characterised as “low on the scale of seriousness”.6
(b)Li v Police: the offender knew the victim by virtue of his wife being friends with her mother. He tried to enter a toilet on several occasions while the victim was using it, against her will. On the third occasion, as the victim pulled her pants up, the offender touched the victim’s face and placed an arm around her waist. He then reached around from behind and grabbed her left breast over the top of her clothing. The Judge noted an appeal against a refusal to grant a discharge without conviction was dismissed in that case.
(c)Lopati v Police: the offender approached the victim at a bar. When she turned to buy drinks, he grabbed her right breast over her clothing “lifting it away from her body”.7 Citing Waine v R, Jagose J noted that indecent assault is treated seriously by the courts,8 and he observed that the victim had every right to enjoy her evening without being accosted
5 Rahim v R, above n 4; Edwards v R [2015] NZCA 583; Lopati v Police [2019] NZHC 198; Li v Police [2023] NZHC 3729; Parker v Police [2016] NZHC 2524; Bolea v R [2023] NZCA 39.
6 Police v Boys, above n 2, at [26].
7 Lopati v Police, above n 5, at [5].
8 Waine v R [2017] NZCA 287 at [16].
by Mr Lopati.9 Nonetheless, the lack of premeditation, fleeting nature of the offence, character references and remorse in combination led the Judge to characterise the gravity of the offending as low.10 The Judge noted that in contrast, the appellant in this case offended against two victims and we considered there was “some level of premeditation and persistence”.11
(d)Edwards v Police: the offender entered the victim’s room to talk. He told the victim he found her attractive, but she made it clear she was not interested. He then got on to the bed and lay beside her, before placing his hand on her breast and telling her he wanted to have sex with her. The Court of Appeal considered the sentencing Judge was correct to view the offence as “falling towards the bottom end of the scale but nonetheless moderately serious”.12
[23] In relation to the gravity of the offending, the Judge concluded that without the appellant’s mitigating personal factors, the offending was towards “the middle of the moderate band for this type of offending”. However, in this case, taking into account the personal mitigating matters he had referred to, the Judge found the overall gravity of the offending to be “to the lower end of the scale of seriousness”.13
Direct and indirect consequences
[24] As to the direct and indirect consequences of a conviction, counsel for the appellant identified these as stigma, employment consequences, consequences in relation to the appellant’s immigration status, and the impact on his desire to coach football at some point in the future. In relation to these identified potential consequences, the Judge did not place any weight on social stigma consequences, relying on Lopati v Police, where Jagose J held that a conviction for indecent assault offending “rightly” attracts social stigma.14
9 Lopati v Police, above n 5, at [9].
10 Lopati v Police, above n 5, at [9].
11 Police v Boys, above n 2, at [28].
12 Edwards v R, above n 5, at [10]–[16].
13 Police v Boys, above n 2, at [33]-[34].
14 Lopati v Police, above n 5, at [16].
[25] As to the employment consequences for the appellant, the Judge identified them as being the risk of termination and adverse effects on the appellant’s employer, a specialist fencing company. The appellant is one of two full-time employees, but the most experienced, and undertakes a foreman-type role for the company. The Judge noted that the appellant had referred to these consequences in his affidavit, as had the sales and operation manager of the appellant’s employer who had also filed an affidavit.
[26] The Judge accepted that the appellant’s employer engaged in specialist work but did not consider that all its work would inevitably identify a discharge without conviction. The Judge noted that, of the appellant’s employer’s specialist clients, the Department of Corrections does not undertake a Police vetting process and that a discharge without conviction would not be disclosed, but that the New Zealand Defence Force did undertake a Police vetting process which would reveal all contact the Police had had with an applicant, citing Parker v Police.15
[27]The Judge said:
[47] It is plain the company’s specialist work (but not all its work) will inevitably identify a discharge without conviction. As Williams J observed in Parker, if prospective employers are made aware of an incident regardless of if there was a discharge without conviction, then the argument in favour of discharge is undermined. That is the position here. Limited weight can be put on this consequence.
[28] Further, given that the appellant’s employer’s affidavit made it clear the company did not intend to terminate his employment if convicted, the Judge concluded that termination was not a real and appreciable risk, albeit noting that, if its project work shrunk, it might be forced to replace the applicant with a foreperson who could undertake that role.
[29] As to immigration consequences, the Judge relied on the affidavit of Mr Lange and the process he outlined that would apply if the appellant was convicted. The Judge accepted that a conviction would result in the appellant automatically becoming liable
15 Parker v Police, above n 5, at [22], where Williams J noted that Police vetting “digs a little deeper” with all contact with Police disclosed.
for deportation, and he accepted the process Mr Lange said would apply thereafter. The Judge noted the process as follows:
[49] …
(a)The Minister of Immigration may decide to serve a deportation liability notice on Mr Boys. Conversely, the Minister may decide to serve and suspend that notice for a period of up to five years. Mr Lange’s conclusion was that there is approximately equal chance of that occurring, however earlier in the affidavit he said there is a reasonable likelihood that the Minister would suspend Mr Boys’ liability for deportation on conditions for up to five years. That is based on the impacts of his deportation on his child and partner and other factors.
(b)If Mr Boys is served with a deportation liability notice, Mr Lange considers he would have reasonable prospects of successfully appealing that to the Immigration and Protection Tribunal.
(c)Mr Boys would be precluded from applying for a permanent resident visa while he is liable for deportation, or subject to a term of suspended deportation liability.
(d)If Immigration New Zealand does consider Mr Boys’ application, he will require a character waiver for his application to be granted. Mr Lange considered he has reasonable prospects of successfully being granted a character waiver.
[30] The Judge then referred to the Court of Appeal’s decision in Bolea v R,16 and said:
[50] The Court of Appeal’s observation in Bolea that the mere existence of the risk of exposure to deportation and the associated process, is in itself an insufficiently disproportionate consequence given the gravity of the offence (in that case) can equally apply here. Further, as the Court said in Bolea, there is no reason to believe that the authorities would not look beyond the conviction itself and not consider the mitigating factors and the personal factors which here include the fact that Mr Boys is obviously a committed father, partner and a man with a very good work ethic and a positive contributor to society.
[31] While acknowledging there was an “immigration risk”, the Judge concluded there was no sound reason not to have confidence that the processes outlined by Mr Lange would be fairly applied and that, even if the Minister refused to intervene and cancel any deportation liability notice issued against the appellant, the appellant would
16 Bolea v R, above n 5, at [42]-[43].
have reasonable prospects of success on an appeal. The Judge determined therefore that the immigration consequences for the appellant were limited.
[32] As to football coaching, the Judge concluded this consequence was also limited, identifying it as the weakest potential consequence.
[33] In conclusion, the Judge formed the view that the consequences, which he described as limited when viewed in the round, should be assessed as “on the lower end of moderate”.17
Proportionality assessment
[34] The Judge then undertook the balancing exercise required and determined that the appellant had not satisfied him that the consequences of convictions would be out of all proportion to the gravity of his offending. The Judge said:
[63] … He has a hard road in front of him but not one that is unable to be navigated.
[64] … at the end of the day, this type of offending should not be kept from prospective employers, Immigration New Zealand or footballers who may wish to be trained by Mr Boys.
[35] Having the reached the view that the test for a discharge without conviction had not been met, the Judge convicted and ordered the appellant to pay the emotional harm reparation I have identified above.
Relevant law and approach on appeal
[36]Section 106 of the Sentencing Act 2002 provides:
106 Discharge without conviction
(1) If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
(2) A discharge under this section is deemed to be an acquittal.
…
17 Police v Boys, above n 2, at [61].
[37] Section 107 of the Sentencing Act entitled “Guidance for discharge without conviction” states that a court must not discharge an offender without conviction unless it is satisfied that the direct and indirect consequences would be out of all proportion to the gravity of the offence.
[38] The relevant test is well established.18 First, the Court must assess the gravity of the offence by reference to the aggravating and mitigating factors both in relation to the offence and to the offender. Then the Court must assess the direct and indirect consequences of a conviction. In determining whether something is a consequence, all that is required is for it to be established that there is a “real and appreciable risk” of the consequence occurring.19 The third step requires the Court to consider whether the consequences of a conviction would be out of all proportion to the gravity of the offence. If they are, the Court still has a discretion whether or not to discharge the offender without entering a conviction.
[39] Discharge without conviction appeals have been characterised as “composite appeal[s] against conviction and sentence”.20 The appeal is by way of rehearing, meaning this Court must make its own assessment as to whether the criteria for a discharge without conviction has been met,21 but the appellant bears the onus of satisfying this Court that interfering with the District Court’s decision is justified.22
Discussion
[40]On appeal, the appellant submits that the Judge:
(a) was wrong in his assessment of the offending before personal mitigating matters were taken into account;
(b) placed insufficient weight on the consequences of a conviction that would result; and
(c) erred when undertaking the proportionality assessment.
18 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142.
19 DC (CA47/2013) v R [2013] NZCA 255 at [43]; R v Taulapapa [2018] NZCA 414 at [46].
20 Jackson v R [2016] NZCA 627, (2016) 28 FRNZ 144 at [16].
21 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8].
22 Austin Nichols & Co Inc v Stitching Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [4].
[41]I assess each of these points in turn.
Did the Judge err in his assessment of the offending before personal mitigating matters were taken into account?
[42] For the appellant, Mr McGuigan submitted that the Judge’s assessment of the gravity of the indecent assault offending was flawed. He referred to the factors the Judge included at [14] of his decision and his assessment that, without the mitigating personal factors, the offending would fall towards the middle of the moderate band for this type of offending.23 Mr McGuigan submitted the offending should have been assessed as low and that, when this was considered taking into account the personal mitigating factors identified, the gravity of the offending overall should have been assessed at the lowest end of the scale. He submitted that, because the Judge erred in this regard, this error fed into the proportionality assessment and the overall exercise of the Judge’s discretion to refuse the application.
[43] Mr Alexander, for the respondent, submitted that the Judge did not make any error about his assessment of the gravity of the indecent assault offending.
[44] Mr McGuigan first referred to the weight placed by the Judge on the fact that there were “multiple victims”. He submitted that, although the Judge referred to the fact there were two victims, he double-counted this aspect because he also referred to persistence, which spoke to this as a separate factor arising from the same issue. But further, Mr McGuigan submitted that the Judge had overstated this aspect in his assessment of the facts.
[45] Mr McGuigan also submitted that the Judge was wrong to characterise the offending as premeditated. He highlighted that the offending against the second victim was an attempt only, the touching that occurred in relation to the first victim was momentary and, when properly considered, the offending in relation to the second victim was more opportunistic than anything else. Mr McGuigan submitted this was not a case where there were multiple attempts to touch the first victim, there were no
23 Police v Boys, above n 2, at [33].
significantly aggravating features and the level of persistence displayed, if the appellant showed any persistence at all, was extremely low.
[46] A proper approach, Mr McGuigan submitted, would have resulted in the Judge assessing the offending in relation to the first victim to be at the lowest end of the scale. In relation to the second victim, because there was no actual touching to her body (rather, it was the attempt to apply force and the circumstances of the approach to this victim that made the appellant’s actions towards her indecent), Mr McGuigan submitted this meant that the compass had not shifted from the culpability assessment the Judge had made in relation to the first victim. Mr McGuigan submitted that the offending should be described overall as indecent assault offending at the lowest end of the scale. In this regard, Mr McGuigan relied on Lopati v Police, but submitted that the facts of this case were less serious than the offending in that case.
[47] The Judge described Lopati v Police as a “similar case”.24 He agreed with Jagose J’s assessment that the gravity of the offending was rightly characterised as low. He distinguished the offending in Lopati from the offending in the appellant’s case because there were two victims and, in his view, some level of premeditation and persistence. The Judge also observed that the appeal against the refusal to grant a discharge without conviction in Lopati was dismissed.
[48] Although Mr McGuigan characterised premeditation as requiring some sort of planning or preparatory conduct, the Judge did not characterise premeditation in this way. He considered that persistence and premeditation were two factors which he treated together because, as he said, they were allied. In relation to what he described as “a degree of premeditation”,25 the Judge said that the appellant had targeted and pestered not one but two women, and he determined that there was a degree of persistence, particularly in relation to the second victim.
[49] But, as well, before concluding that the offending was towards the middle end of the moderate band, the Judge noted the context in which it had occurred. He said:
24 Police v Boys, above n 2, at [29].
25 At [14](b).
[31] Mr McGuigan submits that taking into account the personal mitigating factors, the gravity of the offending is low. I disagree. The defence emphasise that the contact was not skin to skin, but that is the absence of a further aggravating factor and realistically that wasn’t going to be the case in a bar. Mr Boys, touched the first victim and tried to touch the second, thinking he would get away with it. However, the victims complained. We all know that many in their shoes just would not complain and sadly would accept conduct like this as part of going out – that someone full of drink or nerve will do this sort of stuff.
[32] No woman in a bar as wait staff or as a patron, or for that matter, in any place, should be preyed upon sexually. To pin a tail on it, that is what this was, notwithstanding that Mr Boys and his referees would say that with a skinful he has acted out of character.
[50]In short, the public nature of the offending adds important context to it.
[51] But as well, the Judge did identify that the offending in relation to the second victim was an attempt, albeit an attempt on two occasions,26 and while he referred to “multiple victims”, I do not agree that there was any element of double counting. While these factors were separated in the Judge’s decision, all of these factors were assessed by the Judge in the round.27
[52] As to whether the appellant targeted not one but two women, this inference was open to the Judge on the facts. The Judge was correct to characterise the behaviour as persistent and, while he referred to premeditation, the subsequent analysis by the Judge did not place the kind of weight upon that concept as Mr McGuigan suggests. Rather, this aspect was assessed as part of the context of the offending. Although the use of the word “premeditation” might not have been entirely accurate, as was noted by Mr McGuigan, the offending had an opportunistic aspect to it and the Judge’s conclusion and analysis certainly placed weight upon this.
[53] But overall, the Judge’s conclusion as to the overall gravity of the offending was that it fell at the lower end of the scale of seriousness and, despite Mr McGuigan’s submissions to the contrary, I do not agree the appellant’s behaviour should have been characterised as being at the very lowest end of the scale. This connotes the idea that the offending was de minimis, which it was not, given that there were two victims and
26 Police v Boys, above n 2, at [3].
27 At [14].
three attempts to touch unknown women’s breasts in a public setting over an evening with one attempt succeeding, albeit briefly. I do not agree that this offending can be characterised as less serious than the offending in Lopati or Edwards.
[54] In my view, there was no error in the Judge’s assessment of the overall gravity of the offending.
Did the Judge place insufficient weight on the consequences of a conviction on the appellant?
[55] Mr McGuigan submitted that the Judge construed the employment evidence incorrectly when he found there was no risk to the appellant of his employment being terminated. Mr McGuigan referred to paras [23]-[26] of Ms Stewart’s affidavit filed on behalf of the appellant’s employer. At [24], Ms Stewart outlined that about 30 to
50 per cent of the company’s overall work involves projects requiring security clearance or a criminal history check. Ms Stewart opined that, if the appellant was convicted, the company’s workstreams “will naturally shrink because it is his experience which we put forward in terms of our capacity to win a specific tender”. She then posited that, if the company did not have enough projects that did not require security clearance or a criminal history check to be undertaken, it is likely it would need to terminate the appellant’s employment.
[56] The Judge addressed these matters at [39]-[47] of his judgment. As the Judge recognised, regardless of whether a conviction was entered or not, if the appellant’s employer’s work projects were subject to Police vetting, a discharge without conviction would need to be disclosed in any event. It was accepted that the Department of Corrections would be the only potential work provider affected by this particular argument because it requires a conviction history check, that would not reveal a discharge without conviction.
[57] In my view, the Department of Corrections is extremely well placed to assess the risks associated with the fact of any conviction and, if proper material was provided to it concerning these convictions, the nature of the offending would be revealed not only by the sentencing outcome but, if the appellant authorised it, by being provided with a copy of the summary of facts. In any event, the work being undertaken by the
company (fencing) does not seem likely to require the appellant or anyone from the company to be placed in a situation where there would be any risk to a third party given that the appellant’s offending occurred in an entirely different context when under the influence of alcohol and, I accept, is unlikely to be repeated.
[58] Further, Ms Stewart’s affidavit assesses the prospect of tenders likely to be affected to amount to 30 to 50 per cent of the company’s work. However, on the Judge’s assessment, which was not challenged at the hearing before me, two of those organisations would require Police vetting which would reveal a discharge without conviction in any event. That leaves tendering for Department of Corrections’ projects which I have referred to above. Straight away, the percentage nominated by Ms Stewart is reduced.
[59] Overall, I see no error in the Judge’s assessment of these potential consequences but, in any event, I too, quite independently, consider they have been overstated by the appellant for the two additional reasons outlined above.
[60] Then there are the consequences for the appellant’s immigration status. Regarding these consequences, Mr McGuigan cites Bolea v R, where the Supreme Court found that while liability to deportation and the actual risk of deportation should be treated as consequences arising from a conviction under s 107 of the Sentencing Act, there “may be situations where mere exposure to the procedures relating to deportation may be a disproportionate consequence.”28
[61] Mr McGuigan noted that Mr Lange’s evidence stressed the “real risk” that a deportation liability notice could be issued to the appellant, with the Supreme Court noting in Bolea v R that deportation notices are served on those liable for deportation “when it is intended to actually deport that individual”.29 Mr McGuigan submitted this is a case where mere exposure to the deportation process is a disproportionate consequence in relation to the offending, noting the appellant was otherwise entitled to apply for permanent residency on 20 September 2024.
28 Bolea v R [2024] NZSC 46 at [54].
29 At [45].
[62] Mr McGuigan submitted that the appellant’s liability for deportation will persist for ten years, that he would be unable to apply for permanent residency for five years, even if the Minister was to intervene and suspend the liability notice for up to five years, and he would be required to obtain a character reference for any application for permanent residence. Accordingly, he submitted that the District Court Judge erred in finding the immigration consequences for the appellant to be of limited weight in its consideration of matters.
[63] Mr Alexander accepted that mere exposure to deportation can be viewed as a disproportionate consequence of conviction. However, he submitted this is not such a case, and there must still be a “real and appreciable risk” that the consequences identified could occur. Mr Alexander highlighted that Mr Lange’s affidavit serves as evidence to support the view that the risk of deportation is sufficiently tempered by the immigration process that would be employed in the appellant’s case. Mr Alexander submitted the Court can have confidence that immigration authorities will look beyond the bare fact of the appellant’s convictions and consider all factors fairly.
[64] Bolea v R was released following the District Court Judge’s decision. Because that decision is to the appellant’s benefit and alters the law on these matters, the immigration ground of the appellant’s appeal must be closely examined.
[65] Mr Lange’s affidavit states that, if convicted, the appellant will become liable for deportation under s 161(1)(iii) of the Immigration Act 2009. Mr Lange advises that there is a “real risk” that the appellant would be served with a deportation liability notice, based on the seriousness of the maximum penalty of his offending, its sexual nature, and the fact that there are two convictions. That evidence has not been disputed.
[66] In Bolea v R, as is the case here, the statutory scheme suggested the risk of deportation was a consequence of conviction.30 The Supreme Court was clear on the approach to be taken in such cases—the risk of actual deportation is to be treated as part of the proportionality exercise as opposed to a consequence of the offending.31
30 Bolea v R, above n 28, at [45].
31 At [44].
The evidence suggests there is a real risk of a deportation liability notice being served and deportation occurring. The Crown has accepted there is a real risk or deportation, as did the District Court Judge. I accept that is the case.
[67] The facts in this case are somewhat similar to those in Li v Police, where the risk of deportation will likely be present for some time, but, depending on the appellant’s behaviour following, the actual risk of deportation occurring is speculative. The Judge accepted that the liability for deportation and associated procedures was a consequence of conviction but, in noting that the outcome “appears as if it would favour Mr Boys”, found it to be a limited consequence.32 Having reviewed Mr Lange’s evidence, I see no error in that conclusion. It follows that I am not persuaded that the Judge placed insufficient weight on the consequences of a conviction for the appellant. Rather, in my view, he correctly assessed them.
Did the Judge err when undertaking the proportionality assessment?
[68] Mr McGuigan also submitted the Judge erred in his proportionality assessment despite finding the offending to be at the lower end of the gravity scale and the consequences to be at the “lower end of moderate”.33 While counsel acknowledges it is not enough for the consequences of a conviction to simply outweigh the gravity of the offending, nonetheless, Mr McGuigan maintained that the real and appreciable consequences of conviction are out of all proportion to the gravity of the offending in this case.
[69] Regarding the proportionality assessment, Mr Alexander referred to R v Smyth, submitting that “significantly more” than the consequences of conviction outweighing the gravity of the offending is required.34 He submitted the gravity of the offending is toward the lower end of the range and the consequences, while real and appreciable, are unlikely to occur and should be accorded limited weight.
[70] As will be clear by now, I agree with the Judge’s conclusion that these consequences, given Mr Lange’s assessment of the immigration consequences, mean
32 Police v Boys, above n 2, at [52].
33 At [62].
34 R v Smyth [2017] NZCA 530 at [12].
that the test of proportionality has not been met. Neither are the alleged employment consequences as serious as the appellant submits. It cannot be said that the consequences of a conviction for the appellant are out of all proportion to the gravity of the offending. As the Judge noted, the appellant has a hard road in front of him, but it is not one that is unable to be navigated. And, certainly, it cannot be described as one which is out of all proportion to the gravity of his offending.
Result
[71]The appeal is dismissed.
Harland J
Solicitors:
Wynn Williams, Christchurch
Crown Soliciotor’s Office, Christchurch.
0
10
0