Chand v Police

[2017] NZHC 2188

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA TE ROTORUA-NUI-Ā-KAHU ROHE

CRI-2017-470-8 [2017] NZHC 2188

BETWEEN

AMIT CHAND

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	31 August 2017
Appearances:	S Bhardwaj for the Appellant AZM Shore and A J Pollett for the Respondent
Judgment:	8 September 2017

JUDGMENT OF MUIR J

This judgment was delivered by me on Friday 8 September 2017 at 4 pm

Pursuant to Rule 11.5 of the High court Rules.

Registrar/Deputy Registrar

Date:…………………………

Counsel/Solicitors:

S Bhardwaj, Bridge Law, Hamilton
A J Pollett, Crown Solicitors, Tauranga

AZM Shore, Crown Solicitors, Tauranga

CHAND v NEW ZEALAND POLICE [2017] NZHC 2188 [8 September 2017]

Background

[1]      Amit Chand was convicted of a single charge of male assaults female by Judge Ingram in the District Court at Tauranga on 21 November 2016.1  That offence carries a maximum penalty of two years’ imprisonment.2

[2]      Mr Chand was sentenced to nine months’ supervision on the condition that he undertakes and completes such courses, counselling and training as may be required by the probation officer to deal with the causes of his offending (including alcohol counselling as required).  He was also fined $400 and ordered to pay Court costs of

$130.

[3]      Mr Chand now appeals against his conviction and sentence on the grounds that his trial counsel failed to inform him of the possibility of applying for a discharge without conviction.3    Underlying Mr Chand’s appeal is the fact that he is an Indian national who, absent intervention of the Minister, will be deported if the conviction stands.  That is because he has a previous (2015) conviction for driving with excess breath alcohol and a condition of not being deported at the time was that he not offend again within five years.

[4]      The position is further complicated because he has latterly become the sole caregiver for his daughter aged 11 months.

[5]      In light of that development the police do not oppose the appeal and the discharge of Mr Chand without conviction.

[6]      Mr Bhardwaj says that were the Court minded to grant the appeal, it would be appropriate that the penalties otherwise imposed remain.  Indeed he says his client

welcomes the opportunity to participate in counselling, treatment or training.

1      Police v Chand [2016] NZDC 26851.

2      Crimes Act 1961, s 194(b).

3      Brewer J granted Mr Chand leave to appeal out of time; see Chand v New Zealand Police [2017] NZHC 1119.

[7]      At the conclusion of the hearing I allowed the appeal with reasons to follow. I reserved the question of whether the existing penalties could stand for further consideration.

The offending

[8]      At the time of the offending, Mr Chand and the victim were in a relationship and the victim was 35 weeks pregnant with Mr Chand’s child.

[9]      On Thursday 28 July 2016, Mr Chand and the victim had an altercation on the staircase of a Tauranga bar.  Mr Chand had been on the second floor of the bar, and the victim on the first. Evidently there was a strip-tease act on the second floor which the victim was upset Mr Chand had been observing. She struck him to the head several times.  In response Mr Chand grabbed the victim by the hair and pulled downwards, causing the victim to fall down several stairs. The victim sustained grazes as a result.

Mr Chand’s personal circumstances

Immigration status

[10]     Mr Chand is 27 years old.  He has one previous conviction (for driving with excess breath alcohol).  As a result of this conviction, deportation proceedings were initiated.  However, after the receipt of submissions from him these were suspended for a period of five years subject to the condition that Mr Chand was not convicted of any offence committed during that period.

[11]     Following his conviction on the index offending on 25 November 2016, Mr Chand received a letter from the Ministry of Business, Innovation and Employment (MBIE) informing him that, due to the conviction, the Minister of Immigration needed to determine whether he had failed to meet the conditions of his suspended deportation proceedings.  If that was his conclusion the letter advised Mr Chand would be issued with a deportation liability reactivation notice which  would result in him being deported.   The letter stated that no appeal rights arise in relation to a deportation liability reactivation notice.

[12]     In the result Mr Chand currently holds a Resident Visa which is subject to revocation due to his conviction on the male assaults female charge.  It is common ground that, absent the intervention of the Minister under s 172(1) of the Immigration Act, or possibly a successful application for judicial review, Mr Chand will be deported unless his appeal is successful and he receives a discharge without conviction. The police concede that deportation is, in that context, “likely”.

Parenting circumstances

[13]     On 9 August 2017, Mr Chand was granted an Interim Parenting Order giving him day-to-day care and custody of his daughter by Judge Lendrum in the Family Court.

[14]     The Order was granted on the basis that the child’s mother (the victim in these proceedings) had abandoned the child and Mr Chand’s evidence that she had drug and gambling addiction problems which were the catalyst for their separation. Mr Chand’s daughter has been in his sole care for more than six weeks.

[15]     The Order vests in Mr Chand the responsibility of providing day-to-day care for his daughter.  He also has “exclusive responsibility” for his daughter’s day-to-day living arrangements.

[16]     In an updating affidavit dated 31 August 2017, Mr Chand outlines these changed circumstances.  He says that since he has been granted the Order, his former partner has only visited once.  He says he is planning to enrol his daughter at a local day-care.  He is fully responsible for his daughter’s clothing, medicine, nutrition, and other day-to-day requirements, and receives support from his ex-partner’s grandmother and from the Ministry of Vulnerable Children Oranga Tamariki. He says if deported to India he could not take his daughter with him given that it would be contrary to her interests for her to be deprived of all contact with her mother and grandmother.

Appeal on the grounds of trial counsel error

Test

[17]     Mr Chand appeals against his conviction on the grounds of trial counsel error. He says that his trial counsel failed to advise him of the options available to him after the Court delivered its decision, in particular the possibility of applying for a discharge without conviction.

[18]     The Supreme Court summarised the overarching approach to alleged trial counsel error in R v Sungsuwan, stating that the ultimate question of whether justice has miscarried requires consideration of whether trial counsel made an error, and, if so, whether there is a real risk that this error affected the outcome of the trial.4

[19]     In R v Scurrah the Court of Appeal distinguished between counsel error and tactical or other decisions, stating that the focus of the analysis is whether the alleged error was reasonable in the context of the trial.5   In Hamdi v R the Court of Appeal further commented on the distinction between error and strategy, noting that the analysis should not involve the “minute dissection of strategy”.6

Counsel error?

[20]     In his affidavit dated 30 January 2017, Mr Chand deposes that he instructed trial counsel in July 2016, and told him that if he did not defend the charge of male assaults female he faced an appreciable risk of deportation. He says he also explained to counsel that he and the victim were in a relationship and that she was pregnant with his child at the time of the incident.  He says that he was not aware (or made aware) that the option of applying for a discharge without conviction was open to him.

[21]   Trial counsel accepts that he and Mr Chand discussed the downstream consequences of pleading (or being found) guilty in terms of Mr Chand’s immigration

status, although he says he was not aware (or made aware) of any previous warnings

4      R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [70].

5      R v Scurrah CA159/06, 12 September 2006 at [18].

6      Hamdi v R [2017] NZCA 242 at [48].

Mr Chand had received from MBIE about the effect of his previous conviction on his immigration status.

[22]     Whether or not counsel was aware of the prior specific warning, he was aware that Mr Chand’s immigration status was vulnerable and in those circumstances, in my view, he committed an error by failing to raise with Mr Chand the possibility of applying for a discharge without conviction.  It was the logical first line of defence against possible or (if counsel was aware of the earlier notice) certain deportation. The Crown concedes that Mr Chand’s trial counsel erred in this respect.

Risk that error affected outcome

[23]    As stated in R v Sungsuwan, having identified counsel error the second component in assessing whether justice has miscarried involves consideration of whether the error created a real risk that the outcome was affected.7   In substance that requires me to consider the likelihood of Mr Chand receiving a discharge without conviction had he applied for one. Inevitably I must also take into account his updated personal circumstances if potential injustice is to be avoided.

[24]     Section 106 of the Sentencing Act 2002 (the Act) provides that a person who is charged with an offence and found guilty may be discharged without conviction.8

Section 107 states that the court must not discharge an offender without conviction unless satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.9     In Z v R, the Court of Appeal established that s 107 requires an assessment first of all aggravating and mitigating factors (of both the offender and the offending), and secondly an assessment of whether the consequences (both direct and indirect) of conviction are “out of all proportion” to the gravity of the offence.10

[25]     As to the gravity of the offending, it had the aggravating feature that the victim was pregnant at the time but as the Crown concedes it was far from the most serious

7 At [70].

8      Sentencing Act 2002, s 106(1).

9      Sentencing Act 2002, s 107.

10     Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27].

in its category.  Moreover, without exonerating Mr Chand’s actions in any way, the assault occurred in the context of a prior physical assault on him for which the victim was herself convicted.

[26]     As to the consequences of conviction, Mr Chand faces the direct consequence of deportation (absent ministerial intervention), and the flow-on consequence that his

11 month old daughter will be left without a parent responsible for her care.

[27]     As Brewer J noted in his leave decision: 11

…generally the Courts, when considering whether the consequences of a conviction would be out of all proportion to the gravity of the offence, leave deportation matters to the Immigration Service.

[28]     However, both the decisions in Jeon v New Zealand Police12 and Kumar v New Zealand Police13 recognise that the Court may discharge a person without conviction due, in part, to the effect that conviction would have on that person’s immigration status, without such action usurping the role of the Minister.

[29]     In Jeon v New Zealand Police, the appellant pleaded guilty to, and was charged with, dangerous driving. He appealed on the basis that he should have been discharged without conviction.   The effect of a conviction was that Mr Jeon would have “the…consequence of the risk of deportation hanging over” him and his family for up to 10 years.14  The appeal was successful as the Court considered that this consequence was out of all proportion to the gravity of the offence.

[30]     In Kumar v New Zealand Police, the appellant pleaded guilty to, and was convicted of, assault with a weapon.   He appealed on the basis that he should be discharged without conviction, due to the resulting risk of deportation.  Mr Kumar’s offending was the result of him “snapping” after prolonged racial abuse at the hands

of the victim, a co-worker.15    He had previously tried to deal with this abuse non-

11 At [14].

12     Jeon v New Zealand Police [2014] NZHC 66.

13     Kumar v New Zealand Police [2015] NZHC 3293.

14 At [21].

15 At [27].

violently, but eventually resorted to grabbing the victim and threatening him with a knife.

[31]     The Court recognised that the conviction would again mean that Mr Kumar and his family would, at a minimum, have the threat of deportation hanging over them for a number of years, but the Court also accepted that he might be deported immediately.16    It accepted that deportation would pose the threat of Mr Kumar’s family unit being broken up, especially if Mr Kumar’s wife and son remained in New Zealand and that the consequences of conviction on third parties could be taken into account.17

[32]     Given those consequences, and in light of the repeated racial slurs Mr Kumar had endured from the victim and his prior attempts to deal with these peaceably the Court discharged Mr Kumar without conviction.

[33]     There are in my view analogies between the provocations to which Mr Kumar was subject and the background to the instant offending. More significantly, however, the present case is one in which the consequences of conviction are even more immediate and direct – whereas Mr Kumar was liable for deportation, Mr Chand will be deported,  absent  ministerial  intervention,  because of his  prior breath  alcohol conviction.

[34]     Given the circumstances of his daughter that is not an outcome the Court can countenance.  The police do not contend otherwise.  I have no hesitation in finding that, in the particular circumstances outlined the consequences of conviction would be out of all proportion to the gravity of the offence.

Can the penalties nevertheless remain?

[35]     In terms of whether the penalties imposed on Mr Chand should nevertheless remain Mr Bhardwaj refers me to s 106(3)(c) of the Act in terms:

(3)      A court discharging an offender under this section may –

16 At [41].

17     At [41], citing JMT v R [2015] NZHC 1936 at [30].

…

(c)      make  any  order  that  the  court  is  required  to  make  on conviction.

[36]    He also refers me to Jeon where Woodhouse J maintained the relevant disqualification although granting the appeal and discharging the defendant.18

[37]     However, Jeon was a case involving a mandatory penalty on conviction.  By contrast, none of the penalties imposed by the District Court in this case involved orders the Court was “required to make”.  I do not therefore consider that the other penalties imposed by the Court can stand even though Mr Chand is content that they do so.   I encourage him, however, voluntarily to seek counselling for anger management.

Result

[38]     I allow the appeal  and  pursuant  to  s 106(1) of the Sentencing Act  2002 discharge Mr Chand without conviction on the charge of male assaults female.

Muir J

18 At [24].