Chahal v Police
[2022] NZHC 3276
•7 December 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-404-378
[2022] NZHC 3276
BETWEEN HARMANDEEP SINGH CHAHAL
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 7 December 2022 Appearances:
P J Kaye for appellant
C F Anyon-Peters for respondent
Date of judgment:
7 December 2022
ORAL JUDGMENT OF JAGOSE J
Counsel/Solicitors:
P J Kaye, Barrister, Auckland Meredith Connell, Auckland
CHAHAL v POLICE [2022] NZHC 3276 [7 December 2022]
[1] Harmandeep Singh Chahal appeals against the 10 February 2022 and 20 September 2022 decisions respectively of Judges G A Fraser and C M Ryan in the District Court at Auckland.1 Judge Fraser declined to discharge Mr Chahal without conviction, and Judge Ryan sentenced him to six months’ supervision and 100 hours’ community work, on his guilty pleas to charges of burglary,2 injuring with intent,3 and trespass.4
Background
[2] The charges arose from Mr Chahal’s uninvited attendance at the victim’s home on 20 October 2020, from which he had been trespassed a week earlier. Together with another person, he entered the house and attacked the victim, punching and kicking her to and when on the ground, abusing her as they did so. The offending bore overtones of family violence as Mr Chahal briefly had been in a relationship with the victim.
Judgments under appeal
[3] Mr Chahal was entitled to be discharged without conviction only if the direct and indirect consequences of his conviction were out of all proportion to the gravity of the offences.5 The proportionality test is a question of fact requiring judicial assessment.6 A three-step analysis — the gravity of the offending; the direct and indirect consequences of a conviction; and if those consequences are out of all proportion to the gravity — is required.7 There must be a “real and appreciable” risk any given consequence will arise; this recognises the court is assessing future
1 Police v Chahal [2022] NZDC 2231 [“Section 106 decision”]; and Police v Chahal [2022] NZDC 18727 [“Sentencing decision”].
2 Crimes Act 1961, s 231(1)(a); maximum penalty, 10 years’ imprisonment.
3 Section 189(2); maximum penalty, five years’ imprisonment.
4 Trespass Act 1980, ss 4(4) and 11(2)(a); maximum penalty, $1000 fine or three months’ imprisonment.
5 Sentencing Act 2002, ss 106–107; and Scott v R [2019] NZCA 261 at [78]–[80], citing Prasad v R [2018] NZCA 537 at [11].
6 Dickins v R [2012] NZCA 265 at [14], citing H (CA680/11) v R [2012] NZCA 198 at [30] (citing R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11], citing R v Rajamani [2007] NZSC 68, [2008] 1 NZLR 723 at [5]).
7 Sentencing Act, s 107; Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [14] (cited in Bailey v R [2022] NZCA 335 at [30]); Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [8] (cited in Doyle v R [2022] NZCA 307 at [10]); R v Hughes, above n 6, at [16]–[17] (cited in McKenzie v R [2022] NZCA 172 at [47]); and Scott v R, above n 5, at [79].
likelihood.8 Only then may a sentencing judge decide if to exercise residual discretion.9
[4] Judge Fraser assessed Mr Chahal’s offending, “characterised by a home invasion and serious violence”, as “moderately serious offending”.10 He considered, while conviction or not has “an impact on Immigration’s view”,11 “these matters should ordinarily be left to Immigration authorities to determine”,12 and “Immigration have this in front of them regardless of where the matter ends”.13 Having regard for the effect of Mr Chahal’s conviction on his current and future employment and travel and immigration status, the Judge concluded “there is no significant disproportion of consequence in relation to the gravity of the offending”; “it is not even finely balanced”.14
[5] Similarly assessing Mr Chahal’s offending as “moderately serious” by reason of the victim’s vulnerability at home,15 and as a “prolonged assault” by two people including attacks to the victim’s head,16 Judge Ryan took a starting point of 16 months’ imprisonment.17 From that starting point, she deducted 25 per cent for Mr Chahal’s guilty plea, 10 per cent for his rehabilitation work, 15 per cent for his previous good character; and five per cent (rounded down to one month) and a further month for the delay in sentencing since Judge Fraser’s decision, to arrive at six months’ imprisonment,18 which the Judge converted to her final sentence.
[6] On appeal, Mr Chahal contends the sentence is excessive and he should have been discharged without conviction. Peter Kaye argues for him the gravity of his offending is reduced by his contrition subsequently and the Judge misapprehended the virtually certain risk to Mr Chahal’s deportation. With that realisation, Mr Kaye
8 DC (CA47/13) v R [2013] NZCA 255 at [43].
9 An appeal against a refusal to grant a discharge is an appeal against conviction and sentence; see
Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144.
10 Section 106 decision, above n 1, at [26].
11 Section 106 decision, above n 1, at [25].
12 At [26].
13 At [28].
14 At [28].
15 Sentencing decision, above n 1, at [30].
16 At [31].
17 At [34].
18 At [35]–[39].
argues, the consequences of conviction are out of all proportion to the gravity of the offending. No particular submissions are directed at the sentence itself.
Approach on appeal
[7] An appeal against a refusal to grant a discharge without conviction is an appeal against conviction and sentence.19
[8] There is divergence in binding authority on how I am to address the appeal against conviction: on the one hand, I am directed to reach my own view as to whether the direct and indirect consequences are out of all proportion to the gravity of the offending, and only then to determine if the first instance court erred in principle;20 on the other, only if Mr Chahal establishes Judge Fraser was wrong am I to consider his application for discharge without conviction afresh.21
[9] I must allow an appeal against conviction if I am satisfied the Judge “erred in his … assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or if I am satisfied “a miscarriage of justice has occurred for any reason”. Otherwise I must dismiss the appeal.22 By ‘miscarriage of justice’ is meant something has occurred in relation to trial to create a real risk against a more favourable outcome for Mr Chahal or has resulted in an unfair trial or a nullity.23 The threshold is high; not every error will amount to a miscarriage of justice.24
[10] If the conviction appeal fails, I then may determine if the correct sentence was imposed.25 I must allow the appeal only if I am satisfied both there is error in the sentence, and a different sentence should be imposed.26 In any other case, I must dismiss the appeal.27 The approach previously taken by courts on sentencing appeals
19 At [9].
20 McKenzie v R, above n 7, at [48].
21 Maraj v Police [2016] NZCA 279 at [11]; and Austin, Nichols & Co Inc v Stichting Lodestar
[2007] NZSC 103, [2008] 2 NZLR 141 at [13].
22 Sentencing Act, ss 232 and 240.
23 Section 232(4); and R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].
24 Otis v Police [2019] NZCA 231 at [4]; and McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [38].
25 Jackson v R, above n 9, at [13].
26 Criminal Procedure Act 2011, s 250(2).
27 Section 250(3).
continues to apply: the measure of error is the sentence be “manifestly excessive”;28 the principle is “well-engrained” in this Court’s approach to sentencing appeals.29 I will not intervene where the sentence is within a range properly justified by accepted sentencing principle. Whether ‘manifestly excessive’ is to be assessed in terms of the sentence given, rather than the process by which it is reached.30
Further evidence on appeal
[11] Mr Chahal also seeks leave to submit expert legal opinion his deportation on conviction almost is certain. Leave will be granted if the interests of justice favour admission of new evidence on appeal.31 If the evidence is both credible and fresh, it generally should be admitted.32 There is no opposition to its admission.
[12] The proposed evidence is far from fresh. Ranbir Singh Sandhu, an Auckland immigration law specialist, opines Mr Chahal — presently unlawfully in New Zealand, but qualifying for residence under “settled” criteria, pending determination of his work visa application — is most likely to be issued a deportation liability notice. Although Mr Chahal has appeal rights, Mr Sandhu’s experience is Immigration New Zealand is “unlikely to accept any explanation as to why deportation should not proceed”.
[13] Mr Sandhu does not explain why Mr Chahal’s work visa application would be declined on conviction, rendering him liable to deportation. The Immigration instructions he exhibits refer only to ‘character’ requirements for the resident visa as giving rise to police checks. If deported, Mr Chahal would be ineligible for a further temporary or residency visa for five years except with a special direction; if discharged without conviction, Mr Sandhu believes from his professional experience special direction “would possibly” be given to cancel Mr Chahal’s deportation liability.
28 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
29 At [33] and [35].
30 Ripia v R [2011] NZCA 101 at [15].
31 Criminal Procedure Rules 2012, r 8.8; Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [119]; and Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34].
32 Lundy v R, above n 31, at [120].
[14] All that is information Mr Chahal should and could have put before Judge Fraser, to provide a factual basis for a decision if the test was satisfied. But there was no legal onus on him to do so.33
[15] Given the threshold for consequences to be ‘out of all proportion’ to the gravity of the offending, the interests of justice do not require the evidence’s admission to establish deportation ‘would possibly’ not follow any discharge without conviction. The evidence does not offer a basis for any more, much less ‘real and appreciable’, favourable outcome for Mr Chahal. But, given the divergence to which I referred at
[8] above, the interests of justice are met by ensuring I have all the information I require to form my own view. Mr Chahal has leave to file the further evidence.
Discussion
[16] The evidenced difference between the consequences of each conviction or discharge is, in the latter circumstance, decision-makers ‘would possibly’ exercise any discretion in Mr Chahal’s favour. But there is no evidence conviction is effective to exclude the exercise of any discretion. Even if so, it only then is a marginal distinction from ‘would possibly’, rather than being qualifyingly disproportionate.
[17] Assessing the gravity of the offending requires consideration of aggravating and mitigating factors relating to both the offending and the offender.34 This is an evaluative, highly fact-dependent exercise.35 Mr Kaye accepts Judge Fraser’s assessment of the offending as moderately serious, as do I. This was a serious assault of an outnumbered victim in the presumed safety of her own home, to which Mr Chahal’s prior consensual access formally was withdrawn. Neither did the Judge err in identifying the potential consequences of conviction as based in restrictions around Mr Chahal’s employment, immigration and travel. Convictions carry consequences for material assessments of character.
33 R v Hughes, above n 6, at [49] and [53]; and DC (CA47/13) v R, above n 8, at [43].
34 Rahim v R [2018] NZCA 182 at [15]; Z (CA447/12) v R, above n 7, at [27]; DC (CA47/13) v R,
above n 8, at [35]; and Waine v R [2017] NZCA 287 at [21].
35 Rahim v R, above n 34, at [16].
[18] Where actual consequences turn on a third party’s assessment of the relevant facts, be that immigration authorities or employer, and there is no reason to think the assessment would be made otherwise than in good faith, the better approach is to leave the assessment for that party than for this Court to avoid those decisions by discharge.36 That very much is the case here, if Mr Chahal’s convictions additionally are, or are required, to be disclosed to decision-makers. This is not one of those “rare cases” where decision-makers’ scrutiny itself is of qualifying disproportionality.37 The judge did not err. Justice has not miscarried.
[19] On sentence, Mr Chahal’s six months’ supervision and 100 hours’ community work is unobjectionable in itself. It is a generous resolution of six months’ imprisonment in Mr Chahal’s particularly contrite circumstances, that term of imprisonment also being a generous response to moderately serious offending.
Result
[20]The appeal is dismissed.
—Jagose J
36 R v Taulapapa [2018] NZCA 414; and Ho v R [2016] NZCA 229.
37 Zhang v Police [2018] NZHC 285 at [32]. See also George v Police [2014] NZHC 1725 at [46].
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