Chand v Police

[2017] NZHC 1119

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2017-470-8 [2017] NZHC 1119

BETWEEN

AMIT CHAND

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	26 May 2017
Counsel:	S Bhardwaj for Appellant A J Pollett for Respondent
Judgment:	26 May 2017

JUDGMENT OF BREWER J

Solicitors:

Bridge Law (Hamilton) for Appellant

Hollister-Jones Lellman (Tauranga) for Respondent

CHAND v POLICE [2017] NZHC 1119 [26 May 2017]

Introduction

[1]      Mr Chand seeks leave to appeal out of time against a conviction and sentence imposed  on  him  by  Judge  TR  Ingram  in  the  District  Court  at  Tauranga  on

21 November 2016.1   On that date, Mr Chand had a charge of male assaults female

proven against him.   The sentence was nine months’ supervision, with a special condition that he undertake and complete such courses as may be required by his probation officer.  He was also fined $400 and ordered to pay Court costs of $130.

[2]      Mr Bhardwaj, who is appearing for Mr Chand, advises that to the best of his belief and knowledge that sentence has been completed.

[3]      The reason why leave to appeal is sought after so much time is that Mr Chand has been served with a deportation order.  In an affidavit affirmed by Mr Chand on

30 January 2017, he deposes to the effect that at the time of his conviction and sentencing he did not know about the possibility of seeking a discharge without conviction.  Had he known that this was a possibility, then he would have pursued it because of his precarious immigration status.

[4]      The state of the file as at today is too incomplete for me to be able to decide both the application for leave to appeal and the underlying appeal against conviction and sentence.  That is because, although privilege has been waived, there has been no time for the Crown to seek a report from counsel representing Mr Chand during his trial on the charge of male assaults female and on the subsequent sentencing.

[5]      The course I have taken is to assume the best possible position for Mr Chand and to then look to see whether there are prima facie merits in the submission that a discharge without conviction is a real possibility.

[6]      Mr Bhardwaj is quite clear that the only consequence out of the ordinary for Mr Chand  of  his  conviction  was  the  jeopardy  it  placed  him  in  for  deportation. Apparently  Mr  Chand  had  been  earlier  convicted  of  a  drink  driving  offence.

Deportation proceedings were then initiated.  However, Mr Chand put his case and

1      Police v Chand [2016] NZDC 26851.

the Minister suspended  deportation  action.    In  a letter  from  the Ministry dated

4 December 2015, Mr Chand was advised of this but was also warned that any further conviction for criminal offending would result in the deportation notice being reactivated.

[7]      Therefore, at the time of his conviction for male assaults female, a known consequence  to  Mr  Chand  of  a  conviction  would  be  the  reactivation  of  the deportation notice.  This has in fact occurred and Mr Bhardwaj tells me that in the event of the conviction standing, Mr Chand will be deported subject only to his ability to request mercy from the Minister.

Analysis

[8]      The starting point for my analysis of the prima facie merits, assuming, as Mr Chand  deposes,  that  he  was  not  aware  of  the  possibility  of  applying  for  a discharge without conviction, is the criteria against which such a discharge might be granted.  Section 107 of the Sentencing Act 2002 provides that 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.

[9]      My  first  inquiry  is,  therefore,  what  is  the  gravity  of  this  offence?    As Ms Pollett submits, it must be at the low end of seriousness for male assaults female. The sentencing notes of Judge Ingram reveal a double act of domestic violence.  The violence  occurred  on  a  stairway  which  was  under  the  observation  of  a  CCTV camera.   Judge Ingram based his finding of guilt on the CCTV footage which he looked at.

[10]     According to Judge Ingram, there was an argument between Mr Chand and his partner, who was then 35 weeks pregnant with their child.  The partner was seen to throw a couple of punches at Mr Chand which he was able to bat away.  Mr Chand then started down the stairs and grabbed his partner by the hair and pulled her after him.  They descended three or four stairs, after which the partner came to rest on the landing.  She suffered some abrasions.

[11]     Ms Pollett informs me that the partner was also charged and convicted with assault as a result of this incident.  She pleaded guilty and received a sentence which appears to have been to come up for sentence in the event of further offending within a six months period.

[12]     At the time of the sentencing before Judge Ingram, the couple was reconciled and living together.  Mr Chand has a fulltime job.  The child has been born and the three people constitute a family.

[13]     As to the direct and indirect consequences of the conviction, Mr Bhardwaj points to the known consequence at the time of the sentencing of the reactivation of the deportation notice.   In addition, Mr Bhardwaj points out that because of the criminal conviction context, the law (subject to the exercise of the Minister’s prerogative of mercy) would be that the deportation would occur and Mr Chand would never again be permitted to return to New Zealand.  Thus the breakup of the family unit would be final.

[14]     The problem for Mr Chand is that 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.   The observations of Asher J in Zhang v Ministry of Economic Development illustrate this point:2

[14]      In relation to a conviction affecting an offender’s immigration status, or  indeed  ability to  travel overseas,  the  courts  often  conclude  that  it  is appropriate for the consequences of conviction to be resolved by the appropriate authorities, rather than the Court attempting to pre-empt that decision-making process by a decision to discharge without conviction... There is nothing that requires the courts to intervene to try and impose their perception of what the right immigration consequences should be. That is best left to the immigration authorities. But a Court’s assessment of culpability in the sentencing exercise may assist those authorities. And there will always be occasions where in a finely balanced case a discharge may be warranted on these types of grounds…

[15]     There will be cases where the s 106 discretion should be exercised and the matter, therefore, not left for determination by the Minister of Immigration.   One

2      Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011.

case is Jeon v Police.3    Ultimately, as with Jeon v Police and similarly in Kumar v

Police,4 it depends upon the gravity of the particular offence.

[16]     I make no assessment of whether the immigration consequences foreseeable at the time of Mr Chand’s sentencing are out of all proportion to the gravity of his offending.  It does, however, seem to me that it is at least arguable that the discretion of this Court, as enunciated by the Judges in Zhang, Jeon and Kumar, might possibly exist here. Therefore, I grant leave to appeal.

[17]     Procedures need to be put in place to have the substantive appeal heard.  The Crown will need to obtain a report from Mr Tuck who was counsel for Mr Chand at the time of his trial and sentencing.  I direct the following timetable:

(a)       The Crown is to obtain and serve such report by 16 June 2017.

(b)      Any affidavit in response from Mr Chand is to be filed and served by

30 June 2017.

(c)      The Registrar is to liaise with counsel forthwith to identify a date for the appeal.  Obviously that will need to be a date either in late July or early August if possible.

(d)When the appeal date has been identified, the appellant will file and serve his submissions no later than 10 working days before the appeal date.

(e)      The  Crown  will  file  and  serve  its  submissions  no  later  than  five working days before the appeal date.

Brewer J

3      Jeon v Police [2014] NZHC 66 at [20].

4      Kumar v Police [2015] NZHC 3293.