Flint v Police

[2021] NZHC 84

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000455

[2021] NZHC 84

BETWEEN

DARRELL LEE FLINT

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

2 February 2021

Counsel:

GJ Newell for Appellant

TCT Riley for Respondent

Judgment:

5 February 2021

JUDGMENT OF DOWNS J

This judgment was delivered by me on Friday, 5 February 2021 at 11 am.

Registrar/Deputy Registrar

Solicitors/Counsel:

Crown Solicitor, Manukau. GJ Newell, Auckland.

FLINT v POLICE [2021] NZHC 84 [5 February 2021]

The appeal

[1]    Darrell Flint injured his partner with intent to injure; and committed wilful damage. Mr Flint sought to be discharged without conviction. Judge GT Winter declined the application.1 Mr Flint appeals.2 He contends the consequences of conviction, especially his likely deportation, are out of all proportion to the gravity of his offending.

Background

[2]    Mr Flint and the victim were in a relationship for approximately 18 months and lived together. The offending occurred 14 December 2018. Mr Flint and the victim were in bed.  She was talking on the telephone to  the  brother  of  a friend.  Mr Flint accused the victim of cheating. Argument ensued. Mr Flint grabbed the victim’s telephone and threw it to the ground. It broke. Mr Flint then went upstairs and threw the victim’s belongings downstairs. He grabbed the victim’s throat—and applied pressure. Mr Flint then punched the victim twice to the face. She fell to the ground and momentarily lost consciousness.

[3]    Mr Flint took the victim to hospital. There, she approached a Police officer. Mr Flint acknowledged an assault to Police.

[4]    The victim suffered a broken nose and swelling to her face. It appears she continues to suffer “long term concussion” and other forms of trauma.3

[5]    Charges were laid immediately, including one of strangulation. Mr Flint pleaded guilty on 12 August 2019. The strangulation  charge  was  abandoned.  Judge Winter declined to discharge Mr Flint on 19 June 2020. Sentencing took place 31 August 2020.4

1      Police v Flint [2020] NZDC 11564.

2      The appeal is a little out of time. Police do not oppose an extension, which I grant.

3      Victim impact report, 12 August 2019.

4      Police v Flint [2020] NZDC 17597.

[6]    Mr Flint is a citizen of the United Kingdom. He was granted permanent residence here September 2017.

The District Court hearing

[7]    Mr Flint sought to be discharged on the basis conviction could result in his deportation. The Judge held the offending, including mitigating features, was “moderately serious”.5 He held risk of deportation was somewhat speculative, and in any event, a matter for others. Mr Flint also sought to be discharged on the basis of potentially adverse employment consequences. The Judge held this risk was somewhat speculative too, but this issue no longer assumes importance.6

Principle

[8]    A Court may discharge a defendant without conviction if satisfied the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending.7 The Court first assesses offence gravity, which includes both aggravating and mitigating factors. The Court next assesses direct and indirect consequences of conviction. It then asks whether these would be out of all proportion to the gravity of the offence. If so, the Court has a residual discretion to discharge without conviction. An appellate Court must be persuaded the Court below was wrong; but reach its decision on its own view of the case.8

Analysis

[9]    As observed, the Judge held the offending was “moderately serious”. Mr Flint contends the Judge erred in relation to this assessment. On his behalf, Mr Newell acknowledges “the offending on its own [is] moderately serious” but argues mitigating features substantially diminish offence seriousness. Mr Flint took the victim to hospital; admitted the offending to Police; and pleaded guilty.   Mr Flint also paid

$3,000  reparation  (when  later  sentenced  by  the  same  Judge);  and  voluntarily

5      Police v Flint, above n 1, at [15].

6      The point was not raised in either written or oral argument.

7      Sentencing Act 2002, s 107.

8      R v Taulapapa [2018] NZCA 414 at [18], citing H (CA680/2011) v R [2012] NZCA 198

at [35]-[36].

undertook counselling and a  20-week  “Living  Without  Violence”  programme.  Mr Newell says Mr Flint exhibits “considerable remorse”.9 He notes Mr Flint is otherwise of good character. Mr Flint is 35 years of age; a first offender; and a valued employee. Mr Flint is a project manager and site foreman for Cake Commercial Services Ltd. Mr Newell submits these features, in combination, mean “the appropriate gravity assessment is at a low to moderate level”.10

[10]    I begin with the obvious: a male who very forcefully punches a female to the head commits, self-evidently, a serious assault. The offending occurred within the home; involved a breach of trust; and physical injury that was far from trifling. Other harm appears ongoing.11 Mr Flint’s distinct application of force to the victim’s throat aggravates the seriousness of the offence (even though it no longer bears a corresponding charge). So, the injuring offence is a bad example of its kind.

[11]   The Judge considered the offending “at the top end of band 1” of guidelines identified by the Court of Appeal in Nuku v R,12 or at “the lower end of band 2” of the same case.13 Unlike the Judge, I consider the offending squarely within band 2. This because band 1 is reserved for cases with few aggravating features, where the level of violence is “relatively low”; see [38](a) of Nuku. This is not true of Mr Flint’s offending.

[12]   The features Mr Newell identifies are clearly mitigatory. However, these features do not reduce offence seriousness to low, even in combination. Mr Flint did not plead guilty until the morning of trial.14 He told the pre-sentence report writer he punched the victim once, not twice; and that he did not grab the victim by the throat. Mr Flint has made two affidavits in relation to the offending: one in the District Court, and one in this Court. In the first, Mr Flint said he delivered a single (albeit

9      Pre-sentence report, p 4.

10     Mr Newell also observes Mr Flint completed community detention without incident; and paid for a replacement mobile telephone.

11     Victim impact report, 12 August 2019.

12     Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

13 Police v Flint, above n 1, at [15].

14 The record suggests not guilty pleas were “maintained” 8 April 2019. On 2 May 2019, a trial was fixed for 12 August. Objection to the strangulation charge did not preclude prompt guilty pleas to the other charges.

“substantial”) punch; and implied he did not apply pressure to the throat.15 In the second, Mr Flint affirmed the first as “true and correct”.16 Mr Flint’s apparently ongoing stance in relation to each factual aspect sits awkwardly with the summary of facts, which Mr Flint agreed as correct when he pleaded guilty August 2019. The sequence dims the glow of an otherwise significant constellation of mitigating features.

[13]   Like Judge Winter, I consider the offending moderately serious once mitigating features are added to the mix. But for them, I would consider the offending serious. This introduces the central issue: whether likely deportation is out of all proportion to the gravity of his offending?

[14]   Section 161 of the Immigration Act 2009 provides a residence visa holder is liable for deportation if convicted of an offence for which the Court has the power to imprison for a term of two years or more, if the offence was committed within five years after the person first held a residence visa. The offence of injuring with intent to injure has  a maximum penalty of five years’ imprisonment, and as  observed,    Mr Flint obtained residence September 2017. He committed the offence 14 December 2018. It follows Mr Flint is liable to be deported.

[15]   Mr Flint appended a short letter from Natasha Rae, an immigration expert, to his first affidavit. The letter explained [14] and added, “the chance of deportation action … is high” if a conviction were entered. The letter said nothing else on this topic. It follows the Judge was given little information, which explains his conclusion risk of deportation was not more “than slightly above speculative”.17

[16]    Mr Flint seeks to adduce an affidavit from Ms Rae, in turn producing a substantial report from her dated 20 July 2020. Ms Rae says:

(a)Mr Flint is liable to be deported because of s  161  of  the  Immigration Act.

15     Sworn 11 October 2019.

16     Sworn 20 January 2021.

17     Police v Flint, above n 1, at [22].

(b)The Minister of Immigration (and a delegated decision-maker) may suspend or cancel deportation liability. This decision is at the absolute discretion of the decision-maker; there is no requirement to provide reasons.18

(c)Mr Flint is “unlikely” to be the beneficiary of such a decision for various reasons, including that he has “no strong family link” to this country; has spent most of his life in the United Kingdom; his occupation is not one on Immigration New Zealand’s skill shortage lists; and “few individuals with offences involving violence have their deportation liability suspended or cancelled”.

(d)An appeal to the Immigration and Protection Tribunal (after service of a deportation notice) is “unlikely to be successful” because “Mr Flint does not have exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh to deport him”.

[17]   In short, Ms Rae says Mr Flint is liable to be deported—and likely to be so— if he remains convicted of the offence of injuring with intent to injure.

[18]   Mr Newell acknowledges Ms Rae’s evidence could have been put before the Judge (he did not act for Mr Flint in the District Court). However, Mr Newell contends the evidence should be received given its obvious cogency. On behalf of the Police,

Mr Riley offers no opposition. I admit the evidence as late but cogent.19

[19]   Mr Newell contends deportation would be “a severe consequence”, and one wholly  disproportionate  to  the  offending.20  Mr  Flint  has  a  new  partner  in   New Zealand. He continues to enjoy the support of his employer; and has made this country “home”. Mr Newell stresses the offence was out of character; Mr Flint is an

18 Immigration Act 2009, s 11.

19 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].

20 Mr Newell also argues the Judge erred by not revisiting his decision once Ms Rae’s report became available. As observed, the Judge did not sentence Mr Flint until 31 August 2020. Ms Rae’s report was then known. It is unnecessary to address the point because the overarching issue remains that at [13].

otherwise law-abiding, productive member of the community, whose risk of further offending is low.21

[20]   Some cases appear to support the contention Mr Flint should be discharged. I give a handful of recent examples only.

[21]   Fergus Cleaver put one hand over the mouth of the victim, his other on her neck, and then punched her to the face. Like Mr Flint’s victim, she suffered a broken nose and bruising (although previous surgery to her nose “may have left it somewhat weakened”).22 Judge C J Field discharged Mr Cleaver without conviction on one charge of injuring with reckless disregard. The Court of Appeal upheld the Judge, albeit noting “many Judges may have weighed the various factors differently”.23

[22]   Warren Mathieson twice grabbed his victim by the jaw and threatened to kill her. As with this case, the offending occurred in the context of an argument over alleged infidelity. The victim suffered a sore head and neck and bruising. The District Court declined  to  discharge  Mr  Mathieson  without  conviction.  The  High Court upheld the District Court. The Court of Appeal reversed.24 That Court concluded mitigating factors reduced the seriousness of the offence to low, and employment related consequences would be out of all proportion to the gravity of the offending. Like Mr Flint, Mr Mathieson was a first offender.

[23]   Nikhail Prasad threatened to kill the victim (via Facebook); punched her to the stomach and broke her mobile phone. Four days later, he grabbed her by the neck and said, “tell me the truth”. Mr Prasad’s offending appears to have related to arguments about fidelity. The Court of Appeal discharged Mr Prasad on two charges of male assaults  female and  one  of threatening to  kill.25  Mr Prasad  was 19  years  of age. A psychiatrist assessed him as a “high suicide risk”.26 Conviction might have compromised Mr Prasad’s ability to travel; “career prospects”; and his mental health. The victim supported this conclusion.

21     Pre-sentence report, p 2.

22     R v Cleaver [2020] NZCA 397 at [4].

23 At [26].

24     Mathieson v Police [2019] NZCA 406.

25     Prasad v R [2018] NZCA 537.

26 At [23].

[24]   Karanvir Sunda twice punched the victim to the face; grabbed her arm; and dragged her about the house. Mr Sunda also prevented the victim from telephoning for help. The victim was 14 weeks pregnant. She suffered a bloodied nose; a cut inside her mouth; and bruising to her arms and face. The District Court declined to discharge Mr Sunda without conviction. The High Court reversed.27  It concluded  Mr Sunda’s early guilty plea; otherwise good character; and rehabilitative efforts significantly mitigated the offending. That Court also concluded a real risk of deportation would be out of all proportion to the gravity of the offending. The victim supported this conclusion. She and Mr Sunda’s child would “either have to leave New Zealand with him or remain behind, likely facing financial hardship”.28 Churchman J observed a discharge without conviction “will not be common where there is a case of sustained domestic violence” but saw that outcome as “appropriate” on the facts.29

[25]   These examples reveal some defendants are discharged without conviction for offences involving apparently serious family violence against women, albeit when Courts have concluded the consequences of conviction would be out of all proportion to the gravity of the offending—the statutory test.

[26]   However, three things count against Mr Flint’s discharge. First, Courts must be careful not to usurp the role of immigration officials in the enforcement of our immigration laws. As Muir J explained recently in the Court of the Appeal, this longstanding principle “is based in notions of institutional competence and comity”.30

[27]   Second, Mr Flint’s violence is more serious than the violence in all the examples. Moreover, the victim does not support a discharge and no child will be separated from a parent if Mr Flint is deported. In other words, the cited cases are distinguishable.

[28]   Third—and decisively—Mr Flint may be discharged only if the consequences of conviction would be out of all proportion to the gravity of the offending.

27     Sunda v Police [2019] NZHC 756.

28 At [49].

29 At [51].

30     Almarzouqi v Police [2020] NZCA 398 at [14]. Compare Singh v R [2020] NZHC 491.

Deportation would be a heavy blow for Mr Flint and, viewed objectively, a serious consequence, direct or otherwise, of the offending. However, as observed, his offending is moderately serious (once mitigating features are included in the assessment). It follows the statutory test for intervention is not engaged, and the matter one for immigration officials, perhaps even the Minister.

Result

[29]The appeal is dismissed.

……………………………..

Downs J