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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chaves v Police

Details

AGLC: Chaves v Police [2022] NZHC 1909
Case: [2022] NZHC 1909
Decision Date: 4 August 2022

CaseChat Overview and Summary

Matheus Portela Chaves appeals against his conviction and sentence for injuring another person with reckless disregard. Chaves was sentenced to 150 hours of community work and 12 months’ supervision. Chaves argues that the immigration consequences of his conviction are disproportionate to the gravity of his offending and that a discharge without conviction should have been granted instead. The court considered Chaves's arguments and evidence, including his childhood experiences in Brazil, his remorse, and his compliance with bail conditions. However, the court found that Chaves's offending was of a moderately serious nature and that the consequences of conviction were not out of proportion to the gravity of the offending. The appeal was dismissed.

The court found that Chaves's offending was appropriately characterised as moderately serious, taking into account the victim's initiation of the physical confrontation, the disproportionate force used by Chaves, and the serious injury suffered by the victim. The court also found that the consequences of conviction, including the risk of deportation and the loss of employment and family relationships, were not out of proportion to the gravity of the offending. The court acknowledged the difficulties faced by Chaves as a foreign national in New Zealand but found that there was no evidence to suggest that these difficulties impacted on Chaves's culpability for the offending. The court concluded that the Judge appropriately weighed the factors that needed to be weighed and that the sentence imposed was appropriate.

Orders