Chaves v Police

[2022] NZHC 1909

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2022-425-05

[2022] NZHC 1909

BETWEEN

MATHEUS PORTELA CHAVES

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

25 July 2022

Appearances:

B Shackell for Appellant

M Brownlie for Respondent

Judgment:

4 August 2022

JUDGMENT OF OSBORNE J

This judgment was delivered by me on 4 August 2022 at 11.00 am

Registrar/Deputy Registrar Date:

PORTELA CHAVES v NEW ZEALAND POLICE [2022] NZHC 1909 [4 August 2022]

Introduction

[1]    Matheus Portela Chaves was found guilty of injuring the victim (“Mr B” in this judgment) with reckless disregard,1 after a Judge alone trial before Judge Walker (Trial Judgment).2 Mr Portela Chaves applied to be discharged without conviction. The Judge declined that application and sentenced him to 150 hours’ community work and 12 months’ supervision (Sentencing Decision).3

[2]    Mr Portela Chaves appeals that decision. He says the immigration consequences of his conviction are out of all proportion to the gravity of his offending. He says the appropriate outcome was a discharge without conviction.

Facts and Sentencing Decision — the trial outcome

[3]    In his Sentencing Decision the Judge set out the evidence and facts as he determined them following the trial:

[1]        … at about 11.30 pm on Wednesday 2 June 2021 you were in the Queenstown central business district.

Facts

[2]        [Mr Portela Chaves was] initially on Camp Street where [he] met a group of people. Someone in that group was verbally harassing [Ms G] when she got out of the taxi and started walking down Searle Lane towards a bar with her friends. [Ms G] said [he] left that group and also walked down Searle Lane. She told the court … she was feeling anxious and nervous. As [Mr Portela Chaves] and [Ms G] continued down Searle Lane, a friend of hers, the victim [Mr B], got between [him] and [Ms G]. She anticipated trouble as [Mr Portela Chaves] and the victim faced each other. She attempted to pull the victim back but he deliberately pushed [Mr Portela Chaves] forcefully with both hands to [his] chest. [Mr Portela Chaves] responded by landing a heavy punch to the victim’s jaw.

[4]    The Judge viewed as aggravating circumstances that Mr Portela Chaves attacked Mr B’s head and that serious injury resulted. The Judge outlined the injuries suffered by Mr B —compound fractures to his jaw, with surgery required at Dunedin Hospital. Mr B needed three titanium plates inserted into his jaw and 13 screws, all

1      Crimes Act 1961, s 189(2); maximum penalty five years’ imprisonment.

2      Police v Portela Chaves [2021] NZDC 24968 (Trial Judgment).

3      Police v Portela Chaves [2022] NZDC 3378 (Sentencing Decision).

of which remained at the time of sentencing. He had 12 weeks of being unable to eat normally.

[5]    The Judge identified in relation to the gravity of the offending these other consequences:

(a)the costs of Dunedin/Queenstown travel for Mr B and his family in the subsequent period;

(b)Mr B missing two weeks of his education and his exams, and having to pay to re-sit the exams;

(c)Mr B having to give up rugby after being named in a country development team;

(d)Mr B feeling more vulnerable than previously and losing confidence in going out at night; and

(e)Mr B’s friends, including Ms G, (the witnesses on the night) also being affected.

[6]    The Judge heard evidence from Mr B and Ms G, both of whom were cross-examined. CCTV footage of the incident was produced. The Judge had briefs of evidence from two police officers, one of whom had conducted a video interview with Mr Portela Chaves (also produced).

[7]    The Judge outlined concessions made by Ms  G under cross-examination.   Ms G accepted Mr Portela Chaves was somewhat backed into a corner initially in the alleyway, that he had his hands in his pockets and that other people were touching him prior to the punch which was delivered to Mr B. She also accepted she had grabbed Mr B to restrain him. The Judge determined she gave reasonable and straightforward evidence though it was clear she did not want to get Mr B into any difficulty.

[8]    Mr B gave evidence in which he said he had been drinking approximately six beers before heading into town. The Judge noted his concession in cross examination

that he had told hospital staff he had had 12 plus beers. He gave evidence he was not drunk but not sober either, accepting he was tipsy. The Judge determined Mr B’s evidence was plausible, reasonable and measured and, even accounting for the possible underestimate on his part of the alcohol he consumed, he made responsible concessions.

[9]    The  Judge  also   summarised   Mr   Portela   Chaves’   video   interview.   Mr Portela Chaves had acknowledged being involved in the altercation and punching Mr B. He said he did so in response to being pushed forcefully in the chest and that he was concerned about the presence of other people. The Judge determined his account of events was reasonably consistent with the CCTV footage. The Judge found Mr Portela Chaves had not minimised or embellished the facts and it was clear he was perturbed by the outcome for Mr B.  In response to questions from the constable,   Mr Portela Chaves confirmed he did not view the punch as his normal reaction nor the right one.

[10]   The Judge did not accept Mr Portela Chaves’ defence of self-defence. His Honour found the “heavy blow” Mr Portela Chaves delivered a significantly disproportionate response to the physical force applied to him. It was not in all the circumstances reasonable force. The Judge found Mr Portela Chaves had at least two clear escape routes, one of which he took after delivering the punch. One escape route was up the lane, the other back down the lane. The Judge accepted Mr Portela Chaves was alone at the time while Mr B was part of a group, that Mr B was the first person to initiate physical contact and that Ms G took steps to restrain Mr B because she was worried he would get involved in a fight.

The Sentencing Decision— aggravating and mitigating aspects of the offending

[11] The Judge identified the aggravating features of the offending as summarised at [4]–[5] above.

[12]   At the sentencing hearing, the Judge noted defence arguments that a mitigating factor of Mr Portela Chaves’ offending was that it was a case of “excessive self-defence”. The Judge found that was something of a misnomer because it is not

self-defence if the force is excessive. He did, however, accept that the first physical act came from the victim and treated that as a mitigating factor of the offending.

[13]The Judge assessed the overall gravity of the offending as moderately serious.

The Sentencing Decision — personal mitigating aspects

[14]   The Judge noted Mr Portela Chaves had no criminal record in New Zealand or Brazil, that he was 24 years of age at the time of the offending, that he cooperated fully with police and at no point minimised his actions. The Judge also noted he was a Brazilian citizen in New Zealand with no family support, his remorse and the time he spent on bail with a zero alcohol condition and curfew. The Judge also had regard to the fact Mr Portela Chaves sought restorative justice and offered to pay reparation.

The Sentencing Decision — consequences of conviction

[15]   The Judge considered an affidavit from Antoinette Alexander, an experienced immigration advisor, who advised Immigration New Zealand would most likely issue a deportation notice against Mr Portela Chaves and a consequence of that would be that he is effectively unable to work or study in this country.

[16]   The Judge accepted a consequence of conviction for Mr Portela Chaves was he would be served with a deportation liability notice, his entitlement to remain in New Zealand would come to an end and he would be unable to return to work. The Judge noted a testimonial from Mr Portela Chaves’ employer, the fact he had a partner who had two young children, his affidavit in which he set out a previous incident that occurred in Brazil and that the conviction would have significant consequences for the rest of his life.

[17]   The Judge referred to cases where the likelihood of deportation was found to be a consequence of conviction out of all proportion to the gravity of the offending4 but also cases where the courts have been reluctant to usurp the function of specialist authorities whose job it is to assess immigration issues.5 The Judge accepted there

4      Rahim v R [2018] NZCA 182.

5      Yuan v Police [2020] NZHC 933; and Singh v Police [2019] NZHC 417.

was a real and appreciable risk of him being deported and that the consequences of deportation would be significant. The Judge determined, however, the gravity of the offending here was higher than that in Rahim v R, a case relied on by the defence.6

[18]   The Judge expressed sympathy for Mr Portela Chaves but ultimately found the consequences of conviction were not out of all proportion to the gravity of the offence.

Discharge without conviction — the law

[19]    The Court may grant a discharge without conviction under s 106 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

Principles on appeal

[20]   Appeals in relation to 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

[21]   Ms Shackell, for Mr Portela Chaves, sought leave to file an updating affidavit of Mr Portela Chaves as fresh evidence relevant to the appeal.

[22]Ms Shackell submitted the Judge:

(a)overestimated the gravity of his offending; and

6      Rahim v R, above n 3.

7      Sentencing Act 2002, s 107.

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].

(b)erred in finding the consequences of conviction were not out of all proportion to that gravity.

[23]   Ms Shackell made submissions on three particular aspects of the Judge’s reasoning:

(a)she submitted the Judge, in dismissing the submission that “excessive self-defence”  was  a  mitigating  factor,  failed  to  recognise  that   Mr Portela Chaves, in terms of s 62 Crimes Act 1961, was criminally responsible only for that portion of the force used that was excessive;

(b)she submitted that the Judge placed undue weight on matters other than the extent of the injury in quantifying the effect on Mr B, in particular taking issue with the Judge’s reference to transport costs and the impact on the victim’s friends. She submitted there was a failure to take into account Mr B’s own contribution to the incident; and

(c)finally, she submitted the Judge overestimated Mr Portela Chaves’ means of escape, submitting it was only once Mr B was knocked to the ground that the escape route Mr Portela Chaves took (back down the lane) was available to him.

[24]   Ms Shackell submitted, were it not for those errors, and taking account of mitigating factors, the gravity of the offending would have been properly characterised as low to moderate. Ms Shackell referred to the following six mitigating factors:

(a)Mr Portela Chaves’ childhood experience of threats in Brazil;

(b)his relative cultural disadvantages as a foreigner in New Zealand;

(c)his remorse, cooperation with Police, willingness to attend restorative justice and (conditional) offer of emotional harm reparation;

(d)his previous good character;

(e)his young age (24 years), committed family relationship in New Zealand and disconnect from family support in Brazil; and

(f)his compliance while on restrictive bail.

[25]   Ms Shackell submitted that four consequences  of  a  conviction  rendered  Mr Portela Chaves’ conviction out of all proportion to his offending:

(a)the real and appreciable risk of deportation;

(b)the probable suspension of his essential skills visa resulting in a loss of employment;

(c)the loss of his New Zealand family; and

(d)social, psychological and financial losses through having to start afresh in post-pandemic Brazil.

Respondent’s submissions

[26]   Mr Brownlie, for the Crown, did not oppose the admission of the fresh evidence on appeal.

[27]   Mr Brownlie submitted Judge Walker appreciated that Mr B’s was the first physical act (“pushing Mr Portela Chaves forcefully”) and that Mr Portela Chaves was not the aggressor. He maintained the Judge appropriately took account of the impact on Mr B and his family and did not overemphasise financial or medical costs of the offending. Mr Brownlie submitted the Judge had already taken into account the victim’s conduct by this point. Mr Brownlie submitted the Judge, when assessing the gravity of the offending, gave little weight to the factor Mr Portela Chaves had a means of escape.

[28]   Mr Brownlie submitted Mr Portela Chaves’ evidence given in his affidavit about his experiences in Brazil should be largely discounted because Mr Portela Chaves did not give evidence at the Judge alone trial and this statement is untested.

He conceded this information may have been relevant to the trial itself. Mr Brownlie also submitted there was no evidence before the court showing how Mr Portela Chaves is disadvantaged by being a foreign national residing in New Zealand. Mr Brownlie submitted all relevant mitigating factors were properly considered by the Judge.

[29]   Mr Brownlie submitted, while there may  be  a  real  and  appreciable  risk Mr Portela Chaves will be served with a deportation liability notice and thus lose his job and relationship, those consequences are not out of all proportion to the gravity of the offending.

Analysis

[30]   Mr Portela Chaves’ new affidavit will be admitted as it is relevant, updating evidence.

[31]On the appeal itself, I first consider the gravity of the offending.

Extent of excessive force

[32]   The Judge appropriately had regard to the fact the victim initiated the physical confrontation by forcefully pushing Mr Portela Chaves in the chest. The Judge found that Mr Portela Chaves had first endeavoured to walk away from the altercation and at one point had his hands in his pockets. I do not consider this analysis and the Judge’s ultimate consideration inconsistent with authorities such as R v Taueki which identify excessive “self-defence” as potentially a mitigating factor of offending.10 His Honour had regard to the matters which would have justified Mr Portela Chaves taking self-protective steps.

[33]   The Judge was also required, in assessing the gravity of Mr Portela Chaves’ assault on Mr B, to assess the nature and quality of the excess of force used.11 The Judge’s finding in this regard was straight forward — Mr Portela Chaves’ action in delivering a heavy blow to Mr B’s head was significantly disproportionate and excessive having regard to the physical force Mr B applied to Mr Portela Chaves. The

10     R v Taueki [2005] 3 NZLR 372 at [32].

11     Crimes Act 1961, s 62.

Judge also weighed the fact Mr B initiated the confrontation as a factor mitigating the culpability of the offending.

Extent of injuries and other consequences

[34]   Likewise, there was no error in the Judge’s consideration of the impact on the victim and matters referred to in their victim impact statement. The purpose of a victim impact statement is to enable victims to provide information to the court about the effects of the offending, assist the court in understanding the victim’s views on the offending and inform the offender about the impact of the offending from the victim’s perspective.12 The victim’s statement here did not stray beyond those purposes.

[35]   When sentencing an offender, the court is required to take into account the extent of any loss, damage or harm resulting from the offence and any information provided to the court concerning the effect on the victim.13 The Judge’s identification and consideration of financial costs of the offending, including those incurred by the victim’s parents, and the victim’s view that the offending also impacted his friends as witnesses, was orthodox and appropriate.

[36]   Also relevant to the gravity of the offending here was the serious injury suffered by the victim, the consequences of that injury and that he has lost confidence in being out at night.

Assessment of escape options

[37]   The Judge, in the Trial Judgment, found Mr Portela Chaves had had two routes by which to escape the incident.14 That finding was made by the judge of fact with the benefit of hearing the witnesses and considering the CCTV footage in light of that oral evidence. For the purpose of the appeal, I too have reviewed the CCTV footage. The Judge applied his finding at trial in the Sentencing Decision. Having recognised Mr B had unwisely pushed Mr Portela Chaves in the chest, the Judge continued:15

12     Victims’ Rights Act 2002, s 17AB.

13     Sentencing Act, ss 8(f) and 9(1)(d).

14 Trial Judgment, above n 2, at [29].

15 Sentencing Decision, above n 3, at [32].

… You had a means of escape, one of which you took, but not before landing the heavy blow which caused the serious injuries suffered by [Mr B].

[38]   Ms Shackell submits the escape route taken by Mr Portela Chaves after he struck Mr B was not available before he struck Mr B. That submission invites this Court to ignore the Judge’s factual findings as trial Judge. It also ignores what the CCTV  shows  as   a  clearly  open  route  (up  the  lane)  that  was  available  to     Mr Portela Chaves had he continued on in the direction he was initially heading. There is no basis upon which to depart from the Judge’s approach at sentencing that Mr Portela Chaves had means of escape.

[39]   Even were there a demonstrable error in the Judge’s findings as to the escape route (which there is not), I accept Mr Chapman’s submission that it could not have affected the Judge’s assessment that the gravity of the offending was “moderately high”. That assessment fits squarely with the nature of the assault on Mr B and the other aggravating factors identified by the Judge. The primary mitigating factor — Mr B’s aggressive involvement and the fact Mr Portela Chaves was responding to that

— could not reduce the gravity of the offending to “low to moderate” as suggested by Ms Shackell.

[40]   Ms Shackell identified six mitigating factors personal to Mr Portela Chaves which, if taken into account, would have placed Mr Portela Chaves’ offending in the “low to moderate” category (summarised at [24]) above. I observe that each of those matters were factors personal to the offender rather than factors mitigating the offending itself. As it is, the Judge expressly took five of them into account in the following points of the Sentencing Decision:

(a)childhood threats — at [20], [22];

(b)remorse and other offers — at [15], [37];

(c)previous good character and employment history — at [15], [18];

(d)youth, New Zealand family relationship and disconnect from Brazil — at [15], [19]; and

(e)compliance while on restrictive bail — at [15].

[41]   One of the factors raised by Ms Shackell – disadvantage as a foreigner in New Zealand – does not appear to have been identified expressly by the Judge in the Sentencing Decision.

[42]   This remaining factor — the relative disadvantage Mr Portela Chaves faced as a foreigner in New Zealand — requires some more consideration. As Mr Brownlie noted, there was no evidence before the District Court as to how Mr Portela Chaves may have been disadvantaged by being a foreign national (whether Brazilian or otherwise) residing in New Zealand. While it is conceivable that particular cultural differences might impact on a defendant’s culpability, there was nothing before the District Court (or indeed this Court) to justify any inference of a general let alone specific cultural disadvantage. As Mr Brownlie submitted, the proposition that there was disadvantage is itself conjecture.

[43]   In the circumstances, I conclude that the Judge weighed the factors that needed to be weighed.

[44]   Of those factors, one merits further discussion, namely Mr Portela Chaves’ evidence in relation to childhood threats. In his affidavit in support of his application for a discharge without conviction, Mr Portela Chaves recorded:

[10] In Brazil, where I am from, street fight is extremely dangerous and violent. The first time I remember fearing for my life, I was just 8 years old when a man pulled a knife on me. My sister said “run Matheus”, and I did. I thought I was going to die.

[45]   This evidence was not adduced in relation to Mr Portela Chaves’ defence of self-defence at trial. The Judge observed in the Sentencing Decision that the information is being put forward on the basis that those childhood experiences had impacted on the way Mr Portela Chaves reacted on the night of the offence.16 The Judge took it into account amongst the factors to be weighed in the assessment required for a discharge without conviction.17

16 Sentencing Decision, above n 3, at [22].

17 Sentencing Decision, above n 3, at [23].

[46]   What remained was an offence that was appropriately placed in the “moderately serious” category.

[47]   The Judge then appropriately identified the consequences of conviction relied upon by Mr Portela Chaves, particularly through the affidavit of Ms Alexander (the immigration advisor). The Judge correctly referred to authorities which recognised that there is a reluctance (albeit no general rule) on the part of the Courts to intervene in the decision-making of specialist bodies such as Immigration New Zealand.18 As illustrated by the decision in Yuan v Police, even in relation to the offences involving drink driving, it will be relatively rare for the risk of deportation by itself to be considered a disproportionate consequence of such a conviction.19

Conclusion

[48]   The offending of Mr Portela Chaves was, as found by the Judge, offending of a moderately serious nature.

[49]   The consequences of conviction relied upon by Mr Portela Chaves (both direct and indirect) are not out of all proportion to the gravity of the offending.

Order

[50]I order:

(a)the appellant has leave to file his affidavit; and

(b)the appeal is dismissed.

Osborne J

Solicitors:

Crown Solicitor, Invercargill Mactodd Lawyers, Queenstown

18     Singh v Police, above n 4, at [39]; Yuan v Police, above n 4, at [27].

19     Yuan v Police, above n 4, at [25].