Gasu v Police
[2021] NZHC 2948
•2 November 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-404-386
[2021] NZHC 2948
BETWEEN SELENI GASU
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 1 November 2021 Appearances:
A Naseri for the Appellant
A Kempster for the Respondent
Judgment:
2 November 2021
JUDGMENT OF VENNING J
This judgment was delivered by me on 2 November 2021 at 2.15 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors / Counsel:
Mr A Naseri, Public Defence Service, Henderson, Auckland
Ms A Kempster, Meredith Connell, Office of the Crown Solicitor, Auckland
GASU v NEW ZEALAND POLICE [2021] NZHC 2948 [2 November 2021]
Introduction
[1] Seleni Gasu pleaded guilty to one charge of assault on a person in a family relationship. On 9 August 2021 Judge K J Glubb declined Mr Gasu’s application for a discharge under s 106 of the Sentencing Act 2002.1 Mr Gasu appeals that decision.
Background
[2] The victim was Mr Gasu’s partner. At the time of the offending they had been together for approximately two years. Mr Gasu’s partner had a four year old child from another relationship, and they had a one year old daughter together. At the time of the hearing before Judge Glubb his partner was seven months’ pregnant.
[3] On 1 January 2021 at approximately 11.00 pm the defendant and victim were together at a family gathering. The appellant had been drinking and became intoxicated. The appellant’s partner took exception to him dancing with another female family member and slapped him once to the face and then walked away. Mr Gasu then followed his partner into the garage of the address and slapped her forcefully to the face with an open palm, causing her nose to bleed. After a brief pause he then slapped her three further times about the head. She raised her hands to protect herself. Mr Gasu stopped when other family members at the address intervened and physically removed him.
[4] As a result of the assault Mr Gasu’s partner received swelling to her left temple area, bruising to her left hand where she had attempted to shield herself, a cut upper lip and a sore neck. She felt dizzy and was unsteady and an ambulance was called due to those concerns.
[5] In explanation Mr Gasu stated he punched her twice because he was angry that she had slapped him.
[6]Mr Gasu has not previously appeared before the Court.
1 Police v Gasu [2021] NZDC 16319.
The District Court decision
[7] Judge Glubb considered the domestic setting was an aggravating factor. Mr Gasu’s partner was vulnerable and should have been safe in his company. However, he noted that, in her victim impact statement, she had said that being separated from him as a result of the incident had caused her stress and hardship and that she supported his application for a discharge without conviction. She did not seek a protection order.
[8] The Judge considered the offending itself to be moderately serious. When he factored in Mr Gasu’s early guilty plea, his lack of previous convictions and remorse, and the steps he had taken to address his violence, he placed the offending in a low moderate range.
[9] In addressing the direct or indirect consequences of the conviction the Judge noted Mr Gasu was an overstayer and had no right to remain in New Zealand. He had applied under s 61 of the Immigration Act 2009 for a visa in the Minister’s discretion but that had been declined. The Judge considered that Mr Gasu would have an uphill battle to remain in New Zealand but was not satisfied there was a real and appreciable risk that a conviction would further damage his prospects.
[10] Nor did the Judge consider that a conviction would be a barrier to employment. The Judge was not satisfied that the direct or indirect consequences of a conviction would be out of all proportion to the gravity of the offence and accordingly declined to grant the discharge without conviction. He then convicted Mr Gasu and sentenced him to 60 hours’ community work.
Principles
[11] An appeal against refusal to discharge without conviction is a composite appeal against conviction and sentence.2
[12]The test under s 107 of the Sentencing Act 2002 requires the Court to:3
2 Jackson v R [2016] NZCA 627.
3 Z (CA 447/2012) v R [2012] NZCA 599.
(a)identify the gravity of the offence, including the aggravating and mitigating factors of the offending and the offender;
(b)identify the direct and indirect consequences for the offender; and
(c)consider whether those consequences are out of all proportion to the gravity of the offending.
[13] If the above criteria under s 107 are met the Court has a discretionary power to discharge under s 106.
[14] An appeal against the Court’s consideration of the issues under s 107 is an appeal against an evaluative decision rather than against the exercise of discretion. The appeal only involves consideration of a discretion if the lower Court came to the view that the criteria in s 107 were met but exercised its discretion not to discharge.4
Appellant’s submissions
[15] Ms Naseri submitted that the offending was less serious than in Mathieson v Police where the Court of Appeal had concluded a domestic assault was, in the circumstances, of low seriousness.5 Counsel also noted that the incident had been instigated by the victim’s action. When account was taken of Mr Gasu’s personal mitigating factors, previous good character, genuine remorse, support from the victim and his rehabilitative efforts and guilty plea, Ms Naseri submitted the overall gravity could properly be classed at the lower end of the scale from moderately serious to moderately low.
[16] Ms Naseri then addressed the consequences of conviction. She submitted that the main consequence was the effect conviction will have on Mr Gasu’s immigration status which will have a flow-on effect to his young family.
[17] Mr Gasu arrived in New Zealand in September 2017 on a temporary visa but has been unable to obtain a further visa to stay in New Zealand lawfully. He instructed
4 Hughes v R [2008] NZCA 546, [2009] 3 NZLR 222.
5 Mathieson v Police [2019] NZCA 406.
an immigration lawyer, Mr Hoglund, who made application on Mr Gasu’s behalf for a special visa under s 61 of the Immigration Act 2009 in June 2020. That application was refused in July 2020. Mr Gasu’s immigration status is that he is unlawfully in New Zealand. But as yet, he has not been served with a deportation order or removal order. Ms Naseri confirmed that was still the position.
[18] To support Mr Gasu’s application in the District Court counsel had obtained a supporting letter from Mr Hoglund. Mr Hoglund noted that Mr Gasu’s options were to request a further s 61 visa based on a change of circumstances or to return voluntarily to Samoa and file an application off-shore based on the support of his New Zealand partner. That second option was not attractive given Mr Gasu and his partner’s desire to remain together and the fact of her recent baby. Ms Naseri noted that the partner had given birth to her second child with Mr Gasu in September and they had recently married. She submitted that would support a renewed application under s 61.
[19] Mr Hoglund expressed the view that a conviction for domestic violence would have a negative impact on any future immigration applications by Mr Gasu. If he was able to stay in New Zealand, he would need to obtain a character waiver to support a partnership visa.
[20] Ms Naseri argued that the consequences of conviction would be that Mr Gasu would be deported. His children, born in New Zealand, would be left without their father for a period of at least five years as per the stand-down period if Mr Gasu was deported.
[21] Counsel referred to the discussion of the impact of consequences of convictions in R v Tang,6 and the Court of Appeal decision of Bong v R,7 and submitted that they supported a finding that the severity of a conviction for Mr Gasu’s future immigration status was significant.
6 R v Tang [2019] NZHC 2056.
7 Bong v R [2020] NZCA 94.
[22] In addition to the immigration issues counsel also submitted that the loss of mana amongst his own extended family, and potential impact on employment were relevant in Mr Gasu’s case. Ms Naseri accepted they were not the principal grounds of the appeal but nevertheless they remained relevant.
[23] Ms Naseri submitted that when all those factors were taken into account the consequences of conviction would be out of all proportion to the gravity of the offending. She submitted the appeal should be granted and the discharge granted.
Analysis
[24] In Mathieson v Police the Court of Appeal noted that the District Court had not applied the correct approach because, in assessing the overall gravity of the offending, the Judge had not taken into account the very positive mitigating factors.8 Had that been done, the result would have been a reduction of the assessment from moderately serious to low seriousness. The same criticism does not apply to the present case. The Judge took into account the relevant mitigating factors.
[25] On one view the assaults by Mr Gasu on his partner were more serious than the offending by Mr Mathieson in that he delivered a number of blows to her face which resulted in injuries. However, the blows were not accompanied by the threat as in Mathieson.
[26] I consider the Judge was correct to initially assess the offending as moderately serious. However, as he noted, there were a number of other relevant and positive mitigating factors in relation to the offending and particularly, the offender which reduced the overall gravity of the offence. The incident was initiated at least in part by the victim herself, and, as Ms Naseri submits, the overall gravity is reduced by the positive mitigating factors of the early guilty plea, Mr Gasu’s previous good character, his genuine remorse and support from the victim, his rehabilitative efforts and insight into the offending. On my assessment, when those factors are taken into account the
8 Mathieson v Police, above n 5.
offending is properly characterised as of low to moderate seriousness. It cannot be described as very low-level offending as in Bong v R.9
[27] The real issue for the appellant is in relation to the consequences. There can be no realistic suggestion given his current circumstances that a conviction will affect his employment opportunity. He is unable to work as he is illegally in New Zealand. Nor is any stigma within the family a relevant factor. Any stigma would arise from the way Mr Gasu acted in front of his family rather than from any conviction.
[28] The principal consideration is the direct and/or indirect consequences of conviction on his immigration status, and whether such consequences would be out of all proportion to the gravity of the offending, which is characterised as of low to moderate seriousness.
[29] Ms Naseri relied in particular upon the Court of Appeal decision in Bong.10 Like Mr Gasu, Mr Bong was unlawfully in New Zealand. He had also unsuccessfully applied under s 61 for the exercise of the Minister’s discretion. The Court accepted the evidence from an immigration consultant that a conviction would make it very difficult for Mr Bong to persuade an immigration officer to exercise discretion to cancel a deportation order (if issued). Also, the need for him to obtain a character waiver would present a significant barrier to him gaining a visa in the future.11
[30] However, in the recent Court of Appeal decision of Sok v R the Court considered in more detail the correct approach to the consideration of the consequences of a conviction on an appellant’s immigration status.12 First, the Court noted that the reference under s 107 to the direct and indirect consequences required the Court to undertake a causative consideration of the effect of the conviction. The Court concluded:13
Causation is a question of substance and degree, requiring judicial judgment. Like disproportionality, causation is an evaluative rather than a discretionary consideration.
9 Bong v R, above n 7.
10 Bong v R, above n 7.
11 To similar effect is the decision of Rahim v R [2018] NZCA 182.
12 Sok v R [2021] NZCA 252.
13 At [44].
[31] Mr Sok was the holder of a temporary entry class visa. His liability for deportation originally depended not on conviction, but on an Immigration New Zealand character assessment. That assessment had been triggered by the administrative requirement for a character waiver in connection with his application for a partnership visa.
[32] By the time the matter was before the Court Mr Sok’s application for character waiver had been declined. Mr Sok’s position was worse by then, as it is generally a pre-requisite for a visa application that the applicant already holds a visa. The Court considered, amongst other options available to Mr Sok, an application under s 61. Expert evidence had been put before the Court from an immigration adviser. The Court noted that that adviser’s evidence was that:14
… In his opinion applications under s 61 succeeded only in rare circumstances and those which are “clouded” by issues of character almost always fail.
In Mr Kruger's opinion a discharge without conviction would significantly increase Mr Sok's prospects of obtaining a visa under s 61 … .
[33] The Court noted that it did not find the evidence substantially helpful principally because the decision did not turn on an estimate of the likelihood that Mr Sok would be deported. The Court was also unwilling to rely on predictions about what other decisionmakers such as the Minister may do. The Court observed:15
To the extent that it is relevant, the risk of deportation is sufficiently established by the facts that Mr Sok is unlawfully in New Zealand and must rely on the Minister's s 61 discretion. The risk is plainly real.
[34]Importantly for present purposes the Court later noted:16
We elaborate briefly on our reluctance to predict what the Minister may do. Mr Kruger's evidence does not explain what analysis underlies his opinion that s 61 applications that are clouded by character issues almost always fail. Coincidence is not causation. Evidence that s 61 applications seldom succeed
— a reasonable assumption given an applicant under s 61 has presumably already failed to secure a visa through normal processes — does not establish that Mr Sok's will fail for character reasons, let alone because of his conviction.
14 At [36] and [37].
15 At [55].
16 At [56].
And then later, concluding on the s 61 point:17
Turning to the impact of a discharge on Mr Sok's application under s 61, we have accepted that the Minister would consider the circumstances of the offending and the humanitarian circumstances. We have assumed that the absence of a conviction could have a positive influence on the mind of a decision-maker, but it cannot be said that a discharge would materially increase Mr Sok's prospects of obtaining a visa under s 61. Put another way, were his application to fail it would not be in consequence of the conviction.
[35] Similar reasoning applies to Mr Gasu’s case. The difficulty he faces is that he is unlawfully in New Zealand.18 He can only obtain a visa under the Minister’s grace on an application of s 61. Mr Gasu has already, and before the present offending, applied for and been declined under s 61, at a time when he was in a stable relationship and had a child in New Zealand.
[36] As in Sok, it cannot be said that a discharge would materially increase Mr Gasu’s prospects of obtaining a visa under s 61. If his application fails it will not be because of a conviction. Even if Mr Gasu was successful on an application under s 61, or any subsequent application for a visa based on his partner’s status he would need a character waiver. Mr Hoglund accepted that a main hurdle at that stage would be the character waiver. As Ms Naseri accepted on any such application he would have to disclose the charge, even if granted a discharge without conviction.19
[37] Ms Naseri sought to distinguish Sok on the basis that Mr Sok’s offending was more serious than Mr Gasu’s. However, the decision is relevant, not because of the consideration of the gravity of the offending, but because of the approach the Court took to the issue of causation in relation to the consequences of conviction.
[38] In another recent decision, Anufe v Police, the Court of Appeal accepted that in certain instances a discharge may be granted independently of the likelihood that immigration processes will actually end in deportation, but ultimately accepted that in Mr Anufe’s case, any risk of deportation was a consequence of the offending rather
17 At [65].
18 Ho v R [2016] NZCA 229.
19 Sok v R, above n 9, at [46].
than the conviction.20 The Court accepted that the immigration consequences of the offending were a matter for the immigration authorities.21
[39] Similarly, in the circumstances of Mr Gasu’s case, I do not consider the consequence of conviction to be relevant to Mr Gasu’s chances of changing his current unlawful immigration status.
[40] If any further applications under s 61 were to fail, it would not be in consequence of his conviction.
[41] The offending is low to moderately serious, and the consequences of conviction cannot be said to be out of all proportion to the gravity of the offending.
Result
[42] The Judge was correct to find that the consequences of the conviction were not out of all proportion to the gravity of the offending.
[43]The appeal is dismissed.
Venning J
20 Anufe v Police [2021] NZCA 253.
21 At [19].
4
6
0