Clarabal v Police
[2020] NZHC 1518
•1 July 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-404-148
[2020] NZHC 1518
BETWEEN VICTOR CLARABAL
Applicant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 29 June 2020 Appearances:
M J Mellin and R Sastry for Appellant D Muratbegovic for Respondent
Judgment:
1 July 2020
JUDGMENT OF LANG J
[on application for leave to bring second appeal]
This judgment was delivered by me on 1 July 2020 at 3.30 pm.
Registrar/Deputy Registrar Date……………
Solicitors:
Kayes Fletcher Walker, Manukau
CLARABAL v NEW ZEALAND POLICE [2020] NZHC 1518 [1 July 2020]
[1] Mr Clarabal pleaded guilty in the District Court to a charge of driving with excess breath alcohol.1 In an oral decision delivered on 16 August 2019, the Community Magistrate declined an application by Mr Clarabal to be discharged without conviction under s 106 of the Sentencing Act 2002. Mr Clarabal appealed against the Community Magistrate’s decision. In a decision issued on 31 March 2020,
Judge R J Earwaker dismissed the appeal.2
[2] Mr Clarabal seeks leave to bring a second appeal to this Court against the Judge’s decision. On 20 May 2020 Whata J directed that the application for leave to appeal should be heard at the same time as the substantive appeal. The application for leave ultimately occupied the whole of the allocated hearing time. I therefore propose to give my decision on that issue now.
The offending
[3] The summary of facts prepared for the hearing in the District Court records that at 11.33 pm on Saturday 8 June 2019 Mr Clarabal was driving a motor vehicle on Great South Road, Manukau. His vehicle was observed swerving within its lane and travelling at a fluctuating speed.
[4] Mr Clarabal was stopped by police officers who were concerned about the way he was driving. He exhibited signs of recent alcohol intake in that he smelt of, and admitted to having consumed, alcohol. Breath testing procedures were carried out and an evidential breath test recorded a reading of 787 micrograms of alcohol per litre of breath. When interviewed, Mr Clarabal admitted he had consumed two bottles of beer at a friend’s house before driving.
Principles relevant to the application for leave to bring a second appeal
[5] The application for leave to bring a second appeal is governed by ss 237(2) and 253(3) of the Criminal Procedure Act 2011. In short, this Court must not grant leave unless it is satisfied either that:
1 Land Transport Act 1998, s 56(1).
2 Clarabal v Police [2020] NZDC 4115.
(a)The appeal involves a matter of general or public importance; or
(b)A miscarriage of justice may have occurred, or may occur unless the appeal is heard.
[6] Mr Clarabal contends both limbs of the test are satisfied. The Crown contends neither is engaged. I propose to consider each of the tests in turn.
Does the appeal raise an issue of general or public importance?
[7] The test for a discharge without conviction is straightforward and well known. It requires the Court to determine whether the direct or indirect consequences of a conviction would be out of all proportion to the gravity of the offending.3
[8] The approach to be taken in determining an application for discharge without conviction is also well established. A court considering an application for discharge must consider three issues.4 It must first assess the gravity of the offending having regard to the facts of the particular case. This exercise is not restricted to the aggravating and mitigating factors of the offending itself. Factors personal to the offender may also be relevant.5 Next, it must identify the direct and indirect consequences of a conviction being entered. In this context there must be a “real and appreciable” risk that any posited consequence will occur.6 Thirdly, the court must determine whether the consequences of a conviction would be out of all proportion to the gravity of the offending. There is a residual discretion not to grant a discharge but that will rarely be exercised where the statutory criteria have been met.
[9] In the present case Mr Clarabal does not contend either the Judge or Community Magistrate applied the wrong test. Rather, he says they ought to have reached a different result on the facts of his case. That issue does not raise any question of general or public importance.
3 Sentencing Act 2002, s 107.
4 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16]–[17].
5 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27]; DC (CA47/2013) v R [2013]
NZCA 255 at [35].
6 DC (CA47/2013) v R, above n 5, at [43].
[10] Mr Clarabal primarily seeks leave to bring a second appeal because he believes a discharge without conviction may assist him to remain in New Zealand. He has been living and working here for the last seven months under the authority of a temporary entry class visa. His wife and family continue to reside in the Philippines. He has been supporting them from the wages he has been earning in New Zealand.
[11] Following his conviction by the Community Magistrate, Mr Clarabal was served with a deportation liability notice under s 157 of the Immigration Act 2009 (the Act). The Immigration and Protection Tribunal subsequently dismissed Mr Clarabal’s appeal based on humanitarian grounds under s 207 of the Act.7
[12] On Mr Clarabal’s behalf Mr Mellin contends the proposed appeal raises two issues of general or public importance. First, he says there is now a developing trend of cases demonstrating that the courts have been prepared to grant discharges without conviction where the existence of a conviction is likely to have consequences for a person who is liable to be deported. He cites Rahim v R and Bong v R as two recent cases in which the Court of Appeal has entered a discharge without conviction for this reason.8 Another example is this Court’s decision in Vohra v R.9 Mr Mellin says the present case provides the Court with an opportunity to analyse the reasons why the courts now appear to be more prepared to grant discharges against conviction where deportation of the defendant may be one of the consequences of a conviction. He says none of the recent cases have articulated these in any detail.
[13] Mr Mellin also submits that, in cases like the present where a defendant is liable for deportation under s 157, the courts have concentrated on the fact that deportation may still occur even if a discharge without conviction is entered. They have failed to recognise that the existence of a conviction may also influence decisions about the offender’s deportation that may be made subsequently under sections other than s 157. He contends a decision of this Court pointing this out will be of general or public importance.
7 Clarabal [2020] NZIPT 504789.
8 Rahim v R [2018] NZCA 182; Bong v R [2020] NZCA 94.
9 Vohra v Police [2018] NZHC 3192.
A developing trend?
[14] The most recent case in this area of the law is Singh v Police.10 In that case Katz J noted11 that in Zhang v Ministry of Economic Development Asher J had cautioned against the courts usurping the role of immigration officials:12
… 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 … And there will always be occasions where in a finely balanced case a discharge may be warranted on these types of grounds. The case for discharge may not be so strong where the details of the offending will be known and closely examined by the relevant authority in any event, than where the query will be only as to prior convictions, for instance in an application for professional certification.
[15]Justice Katz then went on to observe:
[37]Zhang was subsequently confirmed by the Court of Appeal in Ho v
R.13 The general approach advocated in Zhang and clarified in subsequent cases is justified on grounds of institutional competence and comity. The immigration authorities are those with the institutional background and competence required to deal with immigration questions and have been empowered by Parliament to make that assessment. If the immigration authorities assess that a defendant’s offending is serious enough to warrant deportation, then that is generally their assessment to make, and there are appeal/review rights available.
[38] However, in 2018, the Court of Appeal moderated the position somewhat in Rahim and granted a discharge without conviction where deportation would break up a family unit.14 There have been a number of High Court decisions since then that have recognised that where deportation of an offender will cause serious harm to a defendant’s family (usually in the form of a family unit being broken up) that may be sufficient to justify a discharge without conviction.15 For example, in R v Tang, deportation of the defendant would have resulted in her losing all contact with her four year old son.16
[39] It is relatively rare, however, for deportation risk to be taken into account as a relevant consequence of offending in cases where deportation
10 Singh v Police [2020] NZHC 368.
11 At [36].
12 Zhang v Ministry of Economic Development HC Auckland CRI 2010-404-453, 17 March 2011 at [14].
13 Ho v R [2016] NZCA 229.
14 Rahim v R [2018] NZCA 182.
15 For example, Singh v Police [2019] NZHC 417; Kovalic v Police [2019] NZHC 1214; R v Tang
[2019] NZHC 2056; Sunda v Police [2019] NZHC 756; Chand v Police [2017] NZHC 1119.
16 R v Tang [2019] NZHC 2056.
will not result in serious harm to the offender’s family unit in New Zealand. Ultimately, however, each case must be assessed on its own merits.
[16] It is clear from this passage that Katz J considered the willingness of the courts to intervene in this area has largely been restricted to cases in which deportation of the offender would result in the breakup of the family unit.
[17] I would add another observation. I consider it significant that the appellants in Rahim, Bong and Vohra had all pleaded guilty to, or been found guilty of, charges where the seriousness of the offending could not be determined solely by reference to the nature of the charge. The appellant in Rahim pleaded guilty to a charge of indecent assault, the appellant in Bong had been found guilty on a charge of assaulting a female but acquitted of much more serious charges and the appellant in Vohra had pleaded guilty to a charge of assaulting a female. Culpability for these types of offence can fall within a very wide spectrum, and can only be assessed properly through careful analysis of the facts of the case. In all three cases the analysis of the facts led the courts to conclude the overall culpability of the offending was either low or very low.17 In addition, the courts in each of those cases knew the existence of the conviction was highly likely to result in the appellant being deported. It is therefore not surprising that they were prepared to apply their assessment of gravity of the offending against the probability of deportation if a conviction was entered.
[18] I therefore consider it is already possible to discern the basis on which these cases were decided. Even if they reflect a trend I do not consider it necessary for this Court to carry out any further analysis of the reasons why first courts of appeal have granted discharges without conviction.
[19] Furthermore, this case raises no issues of the type raised in the cases on which Mr Mellin relies. The culpability of Mr Clarabal’s offending is readily ascertainable from the charge. Any deeper analysis of the underlying facts would only reveal that his offending is more culpable then the charge suggests because of the manner in which it came to the attention of the police. No issue of family breakup arises. The present case is therefore not a worthy candidate for a second appeal.
17 Rahim v R, above n 8, at [22], Bong v R, above n 8, at [30], Vohra v R, above n 9, at [32].
Influence of a conviction on other avenues available to avoid deportation
[20] Mr Clarabal’s status as the holder of a temporary entry class visa means he is subject to liability for deportation under s 157 of the Act. Section 157 provides as follows:
157 Deportation liability of temporary entry class visa holder for cause
(1)A temporary entry class visa holder is liable for deportation if the Minister determines that there is sufficient reason to deport the temporary entry class visa holder.
(2)The person has 14 days from the date of service of the deportation liability notice to give good reason why deportation should not proceed.
(3)Subsection (2) does not apply if—
(a)the person is the holder of a limited visa; or
(b)the Minister determines that the person is an excluded person.
(4)A temporary visa holder or interim visa holder who is liable for deportation under this section may, not later than 28 days after the date of service of a deportation liability notice, appeal to the Tribunal on humanitarian grounds against his or her liability for deportation.
(5)For the purposes of subsection (1), sufficient reason includes, but is not limited to,—
(a)breach of conditions of the person’s visa:
(b)criminal offending:
(c)other matters relating to character:
(d)concealing relevant information in relation to the person’s application for a visa:
(e)a situation where the person’s circumstances no longer meet the rules or criteria under which the visa was granted.
[21] As is evident from the wording used in the s 157(1), the Minister may determine there is sufficient reason to deport a person holding a temporary entry class visa. Sufficient reason in this context includes criminal offending and matters relating to the person’s character. Both grounds may exist even where no conviction has been entered for the actions that constitute the offending or affect the character of the visa holder.
[22] Section 157 is to be contrasted with s 158, which relates to the liability for deportation of persons who hold a residence class visa. Such persons will only be liable for deportation when they are convicted of certain types of offence.18 As the Judge observed, this reflects the fact that a residence class visa is a higher and more secure category of visa than a temporary class visa and therefore has a higher threshold for deportation.19
[23] The Immigration and Protection Tribunal has observed in several cases that a person holding a temporary entry class visa may be deported under s 157 for criminal offending even where discharges without conviction have been entered.20 It follows that a discharge without conviction of itself will not prevent Mr Clarabal from being deported from New Zealand. The immigration authorities have in fact already advised him that deportation will continue even if that occurs.
[24] Mr Mellin points out that the Judge in the present case only considered the position from the perspective of Mr Clarabal’s liability for deportation under s 157(1). He submits the Judge ought to have gone further and recognised that, even though the existence of a conviction is not a pre-requisite for Mr Clarabal to be deported under s 157(1), it may nevertheless influence decisions to be made in other avenues that may be open to him to avoid deportation. He submits the approach taken by the Judge in the present case is routinely adopted in the District Court and it raises an issue of general or public importance sufficient to justify a second appeal.
[25] Section 157(2) permits a person who is served with a deportation liability notice to provide the immigration authorities with good reason why deportation should not proceed within 14 days of being served with the notice. If this is unsuccessful the person may then appeal against liability for deportation to the Immigration and Protection Tribunal (IPT) under s 207 of the Act. The IPT may only allow such an appeal where there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported and it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in
18 Section 158(1).
19 Clarabal v Police, above n 2, at [67].
20 Examples are Chauhan [2018] NZIPT 503901 at [22], Almoka [2017] NZIPT 502990 at [18],
Jangra [2018] NZIPT 503766 at [21] and Yang [2016] NZIPT 502927 at [22].
New Zealand. Mr Clarabal has already availed himself of these two procedures without success so a second appeal will not assist him in these areas.
[26] Mr Clarabal still has three possible avenues to pursue to avoid deportation. Once a deportation order is served on him under s 175 of the Act he may apply to an Immigration Officer under s 177 of the Act for cancellation of the order. The immigration officer has absolute discretion to cancel the order but must consider doing so where the person provides information about his or her personal circumstances that is relevant to New Zealand’s international obligations.21 Other than this, however, the officer may make a decision as he or she thinks fit and is not obliged to apply any particular test or to make further inquiries into the circumstances of the person liable for deportation.22
[27] Mr Clarabal can also request the Minister of Immigration to issue a written notice cancelling his liability for deportation under s 172 of the Act. The Minister may issue such a notice whether or not the person liable for deportation has shown good reasons under s 157(2) why deportation should not occur. The decision to cancel a person’s liability for deportation is at the absolute discretion of the Minister.23
[28] Finally, Mr Clarabal may ask the Minister to grant him a special visa under s 61 of the Act. Section 61(1) permits the Minister, of his or her own volition, to grant a visa of any type to any person who is unlawfully in New Zealand and is not a person in respect of whom a deportation order or removal order is in force. A decision to grant a visa under s 61(1) is in the Minister’s absolute discretion.24
[29] As will be obvious, the decisions that will be made if Mr Clarabal pursues any or all these avenues are highly discretionary in nature. I accept that the existence of a conviction may sometimes be relevant to their exercise. The breadth of the discretion in each case is such, however, that courts of first instance cannot realistically include them within the likely consequences to be taken into account when considering an
21 Immigration Act 2009, s 177(2).
22 Section 177(3)(a) and (b).
23 Section 172(5).
24 Section 61(2).
application for discharge. I am therefore not be prepared to grant leave under this ground.
Miscarriage of justice
[30] There is no risk in the present case that a miscarriage of justice may occur because of a wrongful conviction. Mr Clarabal pleaded guilty to the charge in the face of overwhelming evidence. Furthermore, any person who drives with excess breath alcohol must usually expect to be convicted of that offence. The only argument Mr Clarabal can mount under this ground is that a miscarriage of justice is likely to occur because the existence of a conviction may influence or affect the likelihood of deportation, and this would be out of all proportion to the gravity of the offending.
[31] As will already be evident, this proposition faces an initial hurdle in that it is the offending rather than the conviction that has triggered Mr Clarabal’s liability for deportation under s 157(1).
[32] Even on a conventional analysis, however, it is difficult to see how it can be said there has been any error by the courts below. I consider the Community Magistrate and Judge were correct to conclude the offending was of moderate seriousness given the high breath alcohol reading and the fact that the offending was detected because of the manner in which Mr Clarabal was driving.25 He could easily have been involved in a collision with another vehicle and thereby caused death or injury to other persons or himself. The guilty plea was also inevitable given the strength of the case against him. Any credit for good character and rehabilitative efforts would be minimal given the short period of time he had been living in New Zealand when the offending occurred. I do not consider these mitigating factors are sufficient to reduce the gravity of the offence to any material degree.
[33] When considering the consequence of likely deportation several factors are relevant. These include the fact that Mr Clarabal had been living in New Zealand for just seven months at the time of the offending. He was here under the authority of a
25 Clarabal v Police, above n 2, at [31].
temporary visa and had no legitimate expectation of remaining here permanently or indefinitely.
[34] In the affidavit filed in support of the application for discharge Mr Clarabal deposes:
15.I am 35 years old migrant worker from Filipinos. I have a child left to the care of my Mother. My partner works as a Domestic help. They are all living in Visayan Province. I have been remitting money to my family on regular basis for the upkeep of my family and to clear my debt, which I have incurred while coming to New Zealand.
16.I have genuine desire to continue my employment career for my family and for myself. Any conviction will directly impact upon my employment and there is a real and appreciable risk of loss of my job. I can not apply for renewal of my job contract in NZ due to any conviction. I am doing voluntary community work at […].
[35] As these paragraphs demonstrate, Mr Clarabal has little or no connection with this country. He came to New Zealand for purely financial reasons, namely to work here and remit funds to his family in the Philippines. He does not suggest he will be unable to find future employment in the Philippines or elsewhere. Deportation will also reunite him with his family, albeit he will need to find new employment.
[36] I therefore consider there is no risk of a miscarriage of justice occurring if Mr Clarabal is not granted leave to advance a second appeal. It is now for the immigration authorities and the Minister of Immigration to determine whether he should be permitted to remain in New Zealand or be deported. He is in the same position as any other person who commits a criminal offence whilst holding a temporary entry class visa.
The abuse of process argument
[37] Mr Clarabal considers an abuse of process has occurred because the immigration authorities only became aware of his offending after the police alerted them to the fact that he had been convicted of driving with excess breath alcohol. This occurred when a police officer made an enquiry of Immigration New Zealand regarding Mr Clarabal’s immigration status prior to the hearing before the Community Magistrate.
[38] Mr Mellin endeavoured to persuade me that the actions of the police undermined Mr Clarabal’a application for discharge without conviction but I fail to see how this is the case. The Community Magistrate had no knowledge of this issue when he declined Mr Clarabal’s application for discharge and Mr Clarabal was not aware of it either. For that reason the issue could not have influenced the Community Magistrate’s decision.
[39] The prospect that Mr Clarabal would be deported was known by the time Judge Earwaker heard Mr Clarabal’s appeal because by that stage he had been served with the deportation liability notice. The Judge observed that counsel had made “extensive submissions” about the issue but he did not consider it to be particularly relevant to the decision he was required to make.26
[40] I agree with the Judge on this point. Nor do I consider it adversely affected Mr Clarabal’s prospects of obtaining a discharge without conviction on the appeal to Judge Earwaker. When the Community Magistrate heard Mr Clarabal’s application for discharge without conviction Mr Clarabal was only at risk of deportation because the immigration authorities had not commenced formal deportation procedures. By the time the Judge heard Mr Clarabal’s appeal the risk had crystallised, because Mr Clarabal had been served with the deportation liability notice. It therefore assisted him in his argument that the consequences of conviction, namely the probability of deportation, were out of all proportion to the overall gravity of the offending.
Result
[41]The application for leave to advance a second appeal is declined.
Lang J
26 Clarabal v Police, above n 2, at [31].
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