Cabuyao v The Queen
[2021] NZHC 3395
•10 December 2021
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2021-412-000040
[2021] NZHC 3395
BETWEEN ADRIAN CASTILLO CABUYAO
Appellant
AND
THE QUEEN
Respondent
Hearing: 7 December 2021 Appearances:
A Pinnock for Appellant
C J Bernhardt for Respondent
Judgment:
10 December 2021
JUDGMENT OF EATON J
This judgment was delivered by me on at pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
CABUYAO v R [2021] NZHC 3395 [10 December 2021]
Introduction
[1] Adrian Cabuyao pleaded guilty to a charge of indecent assault and was sentenced by Judge Robinson to community work, supervision and ordered to pay reparation.1 The Judge declined to grant a discharge without conviction. Mr Cabuyao appeals against that decision principally because he says a consequence of conviction is that he will face the prospect of deportation to the Philippines.2
Background
[2] Mr Cabuyao is a 41-year-old male from the Philippines and is currently in New Zealand on a working visa. The victim, aged 32, is known to Mr Cabuyao as they are both part of a small Filipino community in the Cromwell area. Mr Cabuyao and the victim’s husband were close friends prior to the offending.
[3] The offending occurred on 13 June 2020 when Mr Cabuyao was at a birthday party held at the victim’s home. The victim, her husband and flatmates were also present. Large quantities of alcohol were consumed throughout the evening.
[4] At around 10.30 pm the victim was walked to her bedroom by her husband. He returned to the party. She lay on the bed on her stomach trying to sleep. Mr Cabuyao entered her bedroom. He touched her on the abdomen, causing her to awaken. He then pulled down her pyjama pants with his right hand, while using his left hand to reach under her and touch her vagina through her clothing for approximately five seconds. This caused the victim to fully awaken. She rolled over and kicked Mr Cabuyao in the stomach which propelled him backwards. He said “I’m sorry… I’m sorry”.
[5] The victim went to the kitchen where she stared angrily at Mr Cabuyao, causing others in the vicinity to ask her what was wrong. The victim saw Mr Cabuyao
1 R v Cabuyao [2021] NZDC 18960.
2 The appeal is properly characterised as an appeal against conviction and sentence however the appellant does not challenge the sentence imposed in the event the appeal against conviction is not upheld.
put his finger to his mouth and gesture for her to keep quiet.3 He then sat down, closed his eyes and pretended to be asleep.
[6] The victim proceeded to punch Mr Cabuyao twice. He was also struck in the head by a pot which was wielded by the victim’s husband. Mr Cabuyao again repeated “I’m so sorry… I didn’t mean to. Kill me now. Kill me now.” He continued to apologise.
[7] Mr Cabuyao suffered a wound to his head and burns to his shoulder. He told the attending medical staff and police he had caused the injuries himself. He told the police he was intoxicated and had no memory of touching the victim.
District Court decision
[8] In reaching a starting point the Judge gave consideration to a range of cases referred to by Ms Pinnock on behalf of Mr Cabuyao.4 The Judge considered it was problematic to apply a description such as “moderately serious” to this offending in a meaningful way. He preferred to assess the gravity of the offending by reference to the term of imprisonment that he could impose for the offending. He set the starting point at between four and six months’ imprisonment.
[9]The Judge referred to the serious impact of the offending on the victim.
[10] The Judge found the primary consequence of conviction was an impact on Mr Cabuyao’s immigration status. Mr Cabuyao’s concern was, if convicted, he would be deported and. as a result, not be able to support his first wife, partner, children and his father who was unwell. All those persons are overseas.
[11] The Judge articulated the second stage of the s 106 Sentencing Act 2002 test as being whether a conviction would cause a consequence that outweighs the seriousness of the offence. Referring to s 157(1) and 5(b) Immigration Act 2009, the
3 Mr Cabuyao denies this allegation.
4 Including Rahim v R [2018 NZCA 182; Dyer v R [2021] NZCA 332, R v Aylwin [2007] NZCA 458; Soloma v R [2018 NZHC 2000; R v Popeea [2015] NZHC 1882; Marshall v Police [2014] NZHC 2681 and Burton v Police [2015] NZHC 3251.
Judge noted Mr Cabuyao could be liable for deportation irrespective of whether he was convicted because an offence was committed.
[12] The Judge referred to the recent decisions of the Court of Appeal, Sok v R5 and Zhu v R6 and the observation that where an immigration process will occur and the person will be given the chance to provide an explanation, the Court may prefer to leave the immigration outcome to the Immigration Department. The Judge recorded the importance that the courts do not take over the function of the Department.
[13] Ms Pinnock on behalf of Mr Cabuyao’s adduced evidence from an immigration lawyer which suggested Mr Cabuyao would not get a character waiver from the Department if he sought one. The Judge considered the Court of Appeal in Sok had expressed a reluctance to receive evidence that speculated or second guessed what the Department may do.
[14] The Judge considered there was a real and appreciable risk Mr Cabuyao would be liable for deportation, but that the risk arose not from the entry of conviction but as a result of his offending.
[15] Even if the conviction was the cause of the risk of deportation, the Judge was not satisfied that the consequences of the offending were out of all proportion to the seriousness of the offence. In light of the authorities discussed, the Judge found there needed to be something more than the ordinary consequences of deportation that were advanced by Mr Cabuyao.
Principles on appeal
[16] The Court may grant a discharge without conviction under s 106 of the Sentencing Act 2002 only if it is satisfied, under s 107, that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending.7
5 Sok v R [2021] NZCA 252.
6 Zhu v R [2021] NZCA 254.
7 Sentencing Act 2002, s 107.
[17] 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.8 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.9
Submissions
Appellant’s submissions
[18] Ms Pinnock, in very thorough submissions, advances four grounds of appeal; namely, that the District Court Judge:
(a)failed to take into account the injury inflicted upon Mr Cabuyao;
(b)failed to distinguish Sok v R and wrongly applied its principles;
(c)overstated the gravity of the offence; and
(d)failed to correctly assess the consequences of conviction.
[19] Mr Cabuyao deposes that he suffers daily headaches as a result of the wound to his head, inflicted by the victim’s husband. Ms Pinnock submits this injury was a mitigating factor that warranted a reduction at sentencing. It is submitted the injury is relevant to the assessment of the gravity of the offence and calls for a merciful and compassionate response.
[20] Ms Pinnock submits the Judge was wrong to interpret the recent Court of Appeal decisions as narrowing the ability to seek a discharge on the grounds of immigration status. It is submitted that discharges have been granted on those grounds in a number of cases.10
8 H v R [2012] NZCA 198 at [35]-[36].
9 Criminal Procedure Act 2011, s 232(2)(b) or (c); and Jackson v R [2016] NZCA 627 at [12].
10 Referring to Tsyan v Police [2021] NZHC 1264; Bong v R [2020] NZCA 94; Vohra v Police [2018] NZHC 3192; and Marshall v Police [2014] NZHC 2681.
[21] Ms Pinnock distinguishes Sok v R, as the offending in that case involved serious injury to a five month old child and a discharge would make no difference to the appellant’s immigration status as the Department had already made a decision on the appellant’s ability to stay in New Zealand.11
[22] Similarly, she distinguishes Zhu v R in which the appellant was convicted of operating a vehicle in a race causing death and of failing to stop to ascertain injury.12 In addition to the seriousness of the offending, the appellant showed no demonstrable remorse. There, unlike Mr Cabuyao, the appellant held a residency class visa which resulted in his deportation as a matter of law under s 161 Immigration Act. Here, Mr Cabuyao would be liable for a deportation notice under s 157(1), which entails a different process. Ms Pinnock argues this is a material difference.
[23] Ms Pinnock submitted that the Judge wrongly interpreted Sok v R as having shut the door on a s 106 discharge unless the consequences of conviction went beyond deportation liability.
[24] It is further submitted the Judge erred in his assessment of the gravity of the offence. The salient facts, she submits, are Mr Cabuyao’s intoxication at the time of the offending, his otherwise good character, supportive references, good employment record, remorse, isolation from social circles and the injuries that he sustained. She submits the offending was low level.
[25] Ms Pinnock submits the consequences of conviction are the refusal of a new visa or deportation and the consequent loss of employment on which Mr Cabuyao and his family members are dependant. In her submission, these consequences are out of proportion with the gravity of the offending.
[26] Ms Pinnock confirmed the victim’s husband was charged with assaulting Mr Cabuyao with a weapon. On 11 November 2020 he was discharged without conviction in the Alexandra District Court. Mr Cabuyao, as the victim, supported that outcome.
11 Sok v R, above n 3.
12 Zhu v R, above n 4.
Respondent’s submissions
[27] The respondent opposes the appeal. Mr Bernhardt submits the Judge took into account Mr Cabuyao’s injury when assessing the gravity of the offending. While it is accepted that his Honour’s consideration of the issue could have been more explicitly articulated, it was not an identifiable error.
[28] Mr Bernhardt submits Sok v R clarifies the distinction between the consequences of a conviction and the consequences of offending, a distinction that has existed for some time.13 In his submission, the Judge correctly distilled the salient aspects of that decision.
[29] Mr Bernhardt notes the appellate Courts have held “gravity of the offence” means the gravity of the offence committed, not the gravity of the type of offence.14 He accepts the Judge adopted an unorthodox approach to determining the gravity by departing from the oft-used descriptors of “low”, “moderate” or “high”. However, in his submission, this resulted in a more accurate analysis of the actual offending. Mr Bernhardt submits the offending was moderate to high in seriousness.
[30] Mr Bernhardt submits that Mr Cabuyao’s intoxication at the time of the offending can have no bearing on the Court’s assessment of gravity.15
[31] Mr Bernhardt submits the District Court Judge did not disregard the consequences of conviction on Mr Cabuyao. Rather, the Judge found that a s 106 discharge would not avoid those consequences because they related to the offending and not the conviction.
Analysis
[32] Where a person is found guilty or pleads guilty, s 11(1)(a) of the Sentencing Act 2002 requires the Court to consider whether they might be more appropriately dealt with by way of discharge without conviction.
13 Sok v R, above n 3.
14 Taylor v R [2018] NZHC 688 at [46]; Babich v R [2018] NZHC 2324 at [7].
15 Sentencing Act, s 9(3).
[33] Section 106 of the Act provides that 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.
[34]Section 107 governs the exercise of that discretion:
107 Guidance for discharge without conviction
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.
[35] This requires a three-step analysis.16 Firstly, to determine the gravity of the offence, this includes assessing aggravating and mitigating factors of the offending and the offender.17 Secondly, the direct and indirect consequences of a conviction. There must be a “real and appreciable risk” that the consequence will occur.18 Finally, whether those consequences are out of all proportion to the gravity of the offence.
Gravity of the offence
[36] It is settled law that the gravity of the offence, in this context, takes into account the aggravating and mitigating circumstances of the offending and the offender.19
[37] An aggravating factor of this offending was that the victim was vulnerable having consumed alcohol. She had retired to her bedroom, a space in which she was entitled to feel safe. Mr Cabuyao made a conscious and deliberate decision to enter the victim’s bedroom. There was an element of premeditation in the offending. He pulled down her pants and touched her on her genitals. Touching on the genitals, whether over or under clothing, is inherently more serious. The touching was not merely fleeting.
16 R v Hughes [2008] NZCA 546; [2009] 3 NZLR 222 at [16]. See Sok v R, above n 3, at [40].
17 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27]; DC (CA47/2013) v R [2013]
NZCA 255 at [35].
18 DC (CA47/2013) v R, above n 15, at [43].
19 Sok v R, above n 3, citing Z (CA447/2012) v R, above n 15, at [27]—[28], citing A (CA747/2010) v R [2011] NZCA 328 at [25] and affirmed in DC (CA47/2013) v R, above n 15, at [34]—[35].
[38] The victim has been severely impacted by the offending, as reflected in her victim impact statement. She requires ongoing counselling and has suffered, amongst other things, depression, the inability to sleep and has required time off work.
[39] Mr Cabuyao sustained a significant injury from being hit in the head by a pot by the victim’s husband. This caused burns down one shoulder and a deep cut which required 13 sutures. He was unable to work for two weeks and continues to suffer daily headaches which require medication.
[40] None of the cases on which Ms Pinnock relies consider the relevance of an offender injury in determining the gravity of the offending in the s 106 analysis.20 Those cases confirm that a sentence may be adjusted to reflect that an offender has suffered a serious injury in the context of his or her offending.21 Notwithstanding, I accept that the courts take a broad approach to the s 106 gravity assessment and I am willing to take into account the injury to Mr Cabuyao and its lasting effects.
[41] As regards personal mitigation, Mr Cabuyao expressed remorse immediately after the offending and has continued to express that remorse. He has no prior convictions in New Zealand or any other country and has impressive character references from friends and his employer. I have no doubt that this offending was very much out of character and that Mr Cabuyao is deeply remorseful. His response at the time the offending was disclosed evidence his immediate distress, regret and remorse.22
[42] Section 9(3) Sentencing Act is clear that the Court must not take into account by way of mitigation the fact that the offender was, at the time of committing the offence, affected by the voluntary consumption or use of alcohol. While Mr Cabuyao’s intoxication provides an explanation as to why he offended, it cannot and does not mitigate the offending.
20 Ms Pinnock has referred to a number of cases where injuries to the offender are treated as a mitigating factor warranting a reduction in sentence. None of those cases are comparable as they involve significantly more serious offending and/or more serious injuries. There, the discounts were between 6-12 months’ imprisonment.
21 R v Holdem [2018] NZHC 1739 at [40]; R v Afakasi [2014] NZHC 2907 at [53] – [55]; R v Samuels [2009] NZCA 153 at [9] and [18]; Paikea v Police [2014] NZHC 2609 at [36]; and R v Lomas CA113/03, 24 July 2003 at [5] and [6].
22 “Kill me, kill me.”
[43] The District Court Judge preferred to assess the gravity of the offending by reference to what would be a starting point in terms of a sentence of imprisonment. He considered that would best reflect the seriousness of the offending. While that approach departs from the conventional descriptors of the offending, it did not in my view result in an inaccurate assessment of the gravity of the offending.
[44] Mr Cabuyao entered the bedroom of an intoxicated and sleeping woman and put his hand under her outer clothing and on her vagina. He stopped when she kicked out at him and came to his senses. On any view, this was a serious offence involving a gross invasion of privacy. It was a serious offence with significant consequences for the victim. I acknowledge the personal mitigating factors are strong and I do not discount the serious injury inflicted on Mr Cabuyao,
[45] In my assessment, weighing all the aggravating and mitigating factors of the offence and those personal to Mr Cabuyao, the offending is moderate to high in seriousness. I cannot accept the submission the offending is categorised as low level.
The direct and indirect consequences of a conviction for Mr Cabuyao
[46] The District Court Judge correctly identified the primary consequence of a conviction was the impact on Mr Cabuyao’s immigration status. The Judge understood Mr Cabuyao’s concerns were twofold; that he would be deported, or that he would not be able to obtain a visa for another country. A corollary was that he would not be able to maintain employment and financially support his family who remain in the Philippines.
[47] Ms Diane Hubbard, a lawyer practising in the field of immigration law has provided affidavit evidence. That evidence is helpful in understanding the complexities of the Immigration Act 2009 and the immigration status and associated risks faced by Mr Cabuyao.
[48] Mr Cabuyao holds a temporary entry class visa (temporary visa), having entered the country under the essential skills category. Unlike in Zhu v R, Mr Cabuyao
is not liable for deportation as a matter of law.23 Rather, under s 157 Immigration Act, he is liable for deportation if the Department decides there is sufficient reason to deport him. Sufficient reason includes “criminal offending”.24
[49] It is the offending that triggers deportation liability, not the conviction. However, it was clarified in Sok v R, that a conviction may indirectly cause “a consequence that will happen only in the event that a third party, such as an immigration officer, makes a decision in which the conviction is relevant.”25 The question of causation is a matter of “substance and degree, requiring judicial judgment.”26
[50] Ms Hubbard deposes that the Department “have internal guidelines to prioritise their workloads which do not mention persons discharged without convictions” and she would “be surprised if he was identified for deportation following a discharge without conviction”.
[51] In Ms Hubbard’s experience it is not uncommon for a temporary visa holder convicted of criminal offending to be served with deportation notices. A person served with a deportation notice can challenge the notice and if unsuccessful, have a right of appeal to the Immigration and Protection Tribunal (IPT).
[52] Ms Hubbard says it is less likely a deportation liability notice would issue if Mr Cabuyao was discharged without conviction.
[53] The issue, at this stage of the s 106 inquiry, is whether there is a real and substantial risk that the immigration process will result in Mr Cabuyao’s deportation as a direct or indirect consequence of conviction. I accept Mr Cabuyao faces a real risk of deportation. I find that risk is an indirect consequence, as it depends not on whether he is convicted but on the Department’s assessment. The triggering event is the offending and not a conviction.
23 Zhu v R, above n 4, at [23]. There, Mr Zhu was liable for deportation under s 161 of the Act.
24 Immigration Act 2009, s 157(5)(b).
25 Zhu v R, above n, at [25], citing Sok v R, above n 3, at [42].
26 Sok v R, above n 3, at [44].
[54] There is no evidence before this Court that permits me to find that the Department will decide, in these circumstances, that Mr Cabuyao will be deported. As noted by the District Court Judge, if Mr Cabuyao is liable for deportation, he will have the opportunity to engage in a process where he can explain his side of things. I agree it is important that the courts are not seen to take over the function of the Department.27
[55] It follows that a discharge will not eliminate the risk of Mr Cabuyao being deported. Ms Hubbard expresses an opinion as to the likelihood of that scenario. But as the Court of Appeal said in Zhu it is not necessary or helpful to estimate how likely it is that a deportation liability notice will issue.
The balancing exercise
[56] I agree with Ms Pinnock the Court of Appeal was not intending to shut the door on discharges without conviction in cases relying on future immigration status consequences. Each case will ultimately be determined on its own facts. However, the cases where discharges have been allowed do tend to involve low level offending. This case did not.
[57] I accept that deportation would have very real consequences for Mr Cabuyao and those who depend on his employment for financial support. However, I have found that risk arises as a consequence of the offending and not a conviction. I do not consider this to be a case where it could be said that liability to deportation is a wholly disproportionate consequence of conviction.
[58] Finally, Ms Pinnock placed weight on the discharge without conviction allowed to the victim’s husband following his guilty plea to a charge of assaulting Mr Cabuyao with a weapon. I am told the same immigration status consequences were raised as a consequence of conviction as are advanced in this appeal. The sentencing notes record that Mr Cabuyao, the victim of that offending supported the s 106 application. The offending in that case was a spontaneous reaction to the shock of learning the defendant’s wife had been sexually assaulted. I regard that case as
27 Police v Cabuyao, above n 1, at [45]-[46].
confirming the door is not closed to discharges in immigration cases. In the round that case engaged less serious offending.
Conclusion
[59]The appeal is dismissed.
...................................................
Eaton J
Solicitors:
Adriana Pinnock, Barrister, Dunedin RPB Law, Dunedin
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