Juneja v Police

[2020] NZHC 1728

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000086

[2020] NZHC 1728

BETWEEN

HARPREET SINGH JUNEJA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	13 July 2020
Appearances:	D G Young for the Appellant L Radich for the Respondent
Judgment:	16 July 2020

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Thursday, 16 July 2020 at 4:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:           Kayes Fletcher Walker (Office of the Crown Solicitor), Manukau Counsel:  D G Young, Barrister, Auckland

JUNEJA v NZ POLICE [2020] NZHC 1728 [16 July 2020]

[1]    On 6 August 2019, after a Judge-alone trial, Judge Blackie found a charge of male assaults female against Harpreet Singh Juneja proven. On 9 October 2019, the Judge declined Mr Juneja’s application for a discharge without conviction. Instead, he convicted him and ordered him to come up for sentence within six months if called upon. Mr Juneja now appeals against the Judge’s refusal to discharge him without conviction.

Factual background

[2]    One evening in November 2018, an argument developed between Mr Juneja and the complainant, his partner at the time. During the argument, Mr Juneja called her a “Filipino slut”. The complainant became upset and emotional. She used her hand to push towards Mr Juneja while lifting herself slightly off her seat in an attempt to push him away so as to end the argument. Mr Juneja became enraged and punched the complainant in the mouth with his right fist. The punch caused a cut to her lip and damaged two front teeth, which necessitated a root canal and other dental work.

[3]    Subsequently, the complainant’s confidence has been badly affected. She has not been able to function properly at work and has had recurring nightmares.

Grounds of appeal

[4]Three grounds of appeal are advanced:

(a)The Judge erred in applying the principles for discharging an offender without conviction;

(b)Fresh and cogent  evidence  about  the  effect  of  a  conviction  on  Mr Juneja’s immigration status is now available; and

(c)Former counsel was negligent in the advice he gave Mr Juneja and in failing to use the services of an interpreter.

Principles for discharge

[5]    Mr Juneja submits that the Judge erred in applying the principles for discharging an offender without conviction in that he:

(a)Failed to take into account relevant mitigating features (previous good character, voluntary work and rehabilitative efforts) at the first stage; and

(b)Failed to adequately take into account the consequences of conviction on Mr Juneja’s immigration status and the effects on his employment prospects at the second stage.

[6]    Relevant mitigating factors do not, however, have to be considered at the first stage when assessing the gravity of the offence. As explained by the Court of Appeal in Z (CA447/12) v R:1

[28]   The approach just outlined seems to us to fit best with the structure of s 107 and to provide the most helpful framework for analysis. While we are conscious that the Court in Blythe expressly disapproved it, we do not consider the approach to be wrong in principle. What we do consider to be wrong in principle is to leave the consideration of personal aggravating and mitigating factors out of the s 107 analysis and to address them only in the context of the s 106 discretion. We do not see how the disproportionality analysis required by s 107 can be undertaken without taking into account the offender’s personal aggravating and mitigating circumstances. However, while consideration of these circumstances must, in our view,  be carried out in the context of the    s 107 analysis, whether this occurs at the first or third step of that analysis is not of great significance. Provided that all relevant factors are considered in the s 107 context, the precise point at which they are considered is unlikely to be material.

[7]    The Crown accepts that the Judge did not consider Mr Juneja’s personal mitigating factors when assessing the gravity of the offence. He did, however, consider those factors later in his sentencing notes when he stated:2

So, for those reasons I am declining to grant your application for a discharge without conviction. However, I do take into account that you have not been in trouble before. I do take into account that you have taken some steps with regard to anger management, and I do take into account that you have, or are endeavouring to maintain an on-going relationship with the complainant. Just

1      Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [28].

2 At [23].

how far that has got since the date of your last hearing, I am not really informed.

[8]    Although brief, these comments do demonstrate the Judge did take Mr Juneja’s personal mitigating factors into account in the required disproportionality analysis.

[9]    The Judge was also acutely aware of the possible consequences of a conviction on Mr Juneja’s immigration status. He referred to those consequences at some length before, in effect, determining that he did not want to usurp the role of Immigration New Zealand (INZ) in deciding whether Mr Juneja was a suitable person to remain in New Zealand. The Judge was not in error in approaching the issue in that way. INZ was aware of the charge before it was heard and determined. Once it was proven, INZ could take it into account in assessing Mr Juneja’s character, regardless of the sentencing outcome. In its later character assessment dated 4 March 2020, INZ noted the Judge’s comment that the sentence imposed was reasonably minor and said his comment had been taken into consideration in the character assessment.

[10]   The Judge did not specifically address the effect on Mr Juneja’s employment prospects because he was given little information on them. Mr Juneja has completed qualifications as a chef in New Zealand, which is an area of skill shortage. He did so while on a student visa. However, on his application for an open post-study work visa, he stated he was employed as a customer service representative at Mitre 10.

[11]   In his affidavit dated 25 September 2019 in support of the application for a discharge without conviction, Mr Juneja attached a letter dated 19 September 2019 from the Service and Operations Manager, Mitre 10 Mega Manukau, which states:

This letter is to confirm that Harpreet (Sandy) Juneja was employed by Mitre 10 Mega Manukau.

Harpreet was a valuable part of our team. He is very hard working, reliable and dedicated team member. He was employed by us from 5th February 2019 to 2 July 2019 he was part of our Customer Service team working in the Customer Service department. Due to his visa situation he wasn’t able to continue working here, we would definitely hire him back if he was granted a visa.

[12]   This is more of a character reference, rather than any indication of an inability to find work because of his conviction.

[13]   In his affidavit dated 19 June 2020 in support of the appeal, Mr Juneja attached part of an application form for employment at Mitre 10 printed out from the internet, which asks whether the applicant has ever been convicted of a crime in New Zealand or any other country, without explaining how that may affect employment at Mitre 10 or elsewhere.

[14]   The sole reference to the consequences of a conviction in the affidavit dated 19 June 2020 in support of the application for a discharge without conviction is a statement by Mr Juneja that he was unable to renew his visa with the active criminal charge. Mr Juneja has not provided any evidence that Mitre 10 would not re-employ him on account of a conviction for male assaults female. Similarly, no information has been provided by him why he has been unable to work as a chef with a conviction for male assaults female. His counsel advised the Court that Mr Juneja did not want to work as a chef and only saw cooking school as a route into New Zealand.

[15]   The Judge, therefore, cannot be criticised for not taking into account the effects on Mr Juneja’s employment prospects when there was little information before him.

Fresh and cogent evidence

[16]Mr Juneja seeks to adduce the following new evidence on appeal:

(a)INZ letter dated 10 March 2020 declining Mr Juneja’s application for a work visa on the basis of not meeting good character requirements.

[17]   By itself, this two-page letter does not identify precisely the extent to which the conviction impacted the negative finding as to character. It refers to a letter of concern dated 19 February 2020, and Mr Juneja’s response dated 28 February 2020, neither of which had been provided by Mr Juneja. At the hearing of the appeal I was, however, provided with a copy of the two letters. The letter dated 19 February 2020 indicates that INZ were also concerned about Mr Juneja’s initial omission of the charge of male assaults female in his application for a work visa when he answered the following question in the negative:

In any country, including New Zealand, are you currently under investigation, wanted for questioning, or facing charges for any offence?

[18]   I also was provided with a seven page attachment to the INZ letter dated     10 March 2020 at the hearing of the appeal. It sets out the INZ character assessment in some detail. It discloses, for example, that INZ also assessed Mr Juneja’s family circumstances in considering whether to grant a character waiver. It noted the complainant’s recent declaration that her relationship with Mr Juneja was at an end despite Mr Juneja’s latest statement that they were working on their relationship. This information had also not been provided by Mr Juneja. In fact, in his affidavit dated 19 June 2020 in support of the appeal, Mr Juneja stated:

I am currently still in a relationship with the complainant. We have resolved our issues however she is a New Zealand resident and if I am deported that will place our relationship in jeopardy.

[19]Another negative factor weighed in the INZ character assessment was that:

Despite his qualification [as a chef] the client does not have a clear pathway to residence. His employment as declared in his application form is as a customer service representative at Mitre 10.

[20]   The INZ letter dated 20 March 2020 is fresh and cogent evidence and can be admitted on that basis but it is not particularly helpful to Mr Juneja as it reveals there were a number of other factors apart from the fact of a conviction considered and weighed in the balance by INZ.

(b)INZ letter dated 16 June 2020 refusing Mr Juneja’s application for a special visa under s 61 of the Immigration Act.

[21]   This letter is fresh and cogent evidence and can be admitted on that basis, but cannot be accorded any real weight as the grant of such a visa is in the Minister’s absolute discretion and no reasons are given.

(c)                 CAA Fit and Proper Person Questionnaire and two internet printouts which appear to be part of application forms for employment at Bunnings Warehouse and Mitre 10.

[22]   Mr Juneja now says in his affidavit dated 19 June 2020 that his goal is and has always been to become a commercial pilot one day and so annexes a Civil Aviation Authority questionnaire which asks if he has been convicted of any criminal offence.

He also annexes part of application forms for employment at Bunnings Warehouse and Mitre 10.

[23]   These documents are neither fresh nor cogent and cannot be admitted on    Mr Juneja’s appeal.

Counsel conduct

[24]Four particular grounds are advanced under this heading:

(a)His Public Defence Service (PDS) lawyer, Mr Te Koha, did not adequately advise him of the advantages of pleading guilty or trying to negotiate a more advantageous summary of facts;

(b)Mr Juneja found Mr Te Koha generally difficult to contact;

(c)Mr Juneja felt he did not get the support he needed, including the use of an interpreter; and

(d)His immigration lawyer, Mr Jag Lal, advised him to plead not guilty.

[25]   Mr Juneja has sworn an affidavit dated 19 June 2020. Mr Te Koha and Mr Lal have responded by affidavits dated 6 July 2020.

[26]As to the first ground, Mr Juneja states:

I explained my story to my lawyer Mr Te Kohe and he said that I should plead not guilty. It was never explained to me that I might receive possible discounts at sentencing if I plead guilty otherwise I would have done so also the Lawyer did not advise me of the option of pleading guilty and seeking a discharge without conviction or how pleading guilty would improve my chances of a discharge without conviction? In addition the lawyer did not discuss the possibility of negotiating a resolution with the prosecution either to reduce the charge or to amend the summary of facts.

[27]   Mr Te Koha gave a detailed and comprehensive reply in his affidavit. I prefer and accept Mr Te Koha’s evidence that Mr Juneja was aware from their discussions that he had the option to plead guilty prior to trial and still pursue an application for a

discharge without conviction. At case review, Mr Juneja confirmed instructions to maintain a not guilty plea and proceed to a Judge-alone trial.

[28]   Mr Te Koha acknowledges that he could have explored the possibility of an amended summary of facts and subsequent application for a discharge without conviction at an earlier stage but it is clear that Mr Juneja emphatically asserted his innocence. Mr Te Koha wrote to the Police asking them to withdraw the charge on the basis of self-defence. The Police refused and indicated that they were considering upgrading the charge. They were adamant that any guilty plea could only be to a summary of facts that recognised that Mr Juneja had hit his partner in the face with a closed fist. Mr Juneja never conceded that until after a specific finding by the Judge at trial.

[29]   As to the second ground relating to counsel conduct, Mr Juneja states he found it very difficult to get in contact with Mr Te Koha. Mr Te Koha responds as follows:

I had regular contact with Mr Juneja throughout the proceedings and my records highlight that he attended the PDS Manukau office on a number of occasions. In addition, we were in relatively regular phone contact.

I was without a work cell phone for a month around August/September 2019. However, at all times he could have called me at the PDS office, the details of those numbers were on my reporting letters to Mr Juneja. He also had my email address and used it to correspond with me.

On one occasion, Mr Juneja had another criminal lawyer that he knew, ring the office to tell me to contact him. I received an email notifying me that Anjeet Singh had asked I contact him to discuss immigration matters.

On another occasion he attended the PDS office with the complainant, while I was on sick leave. Mr colleague Colin Ross talked with him and sent him a letter following his meeting with him.

While I accept that I possibly didn’t respond to every request for contact from Mr Juneja, I maintained regular contact with him.

[30]   Even if Mr Juneja sometimes found it difficult to contact Mr Te Koha, I agree with Crown that this does not add any substance to the appeal. Mr Juneja has not explained how he was disadvantaged by not being able to speak to his lawyer when he wanted to. There is no evident miscarriage of justice.

[31]   The third ground is a little unclear about the type of support Mr Juneja says he lacked, apart from the services of an interpreter. Mr Juneja states:

I did not get the support I needed throughout this process. In addition because English is not my first language I struggle at times to understand everything that is being said or in particular to convey my message accurately. At no stage however was I offered an interpreter during our meetings.

[32]   I accept  Mr Te  Koha’s  evidence that he had  a  number of meetings with  Mr Juneja, took full notes  of  the  meetings  and  corresponded  with  Mr  Juneja,  Mr Juneja’s immigration lawyer and the Police. Nowhere is it evident that Mr Juneja needed an interpreter. Apart from his extensive dealings with Mr Te Koha, Mr Juneja achieved qualifications in New Zealand in courses presumably taught in English. He also worked at Mitre 10 in customer services for six months in 2019 and completed an evidential video interview with the Police in English without apparent difficulty. I am not persuaded that an interpreter was required in the interests of justice.

[33]As to the fourth ground, Mr Juneja states:

I was on a work visa when I was charged with male assaults female, therefore I engaged an immigration lawyer, Jag Lal to advise me on immigration matters.

Jag Lal used to be a criminal lawyer, so I trusted him. From the very beginning he told me that I needed to plead not guilty because a guilty plea will ruin my future in New Zealand. He said that a conviction will mean that I would not be eligible for a visa unless I was granted a character waiver. He stated that if I am convicted that it will be unlikely that I would be granted a character waiver. Therefore, he advised that I needed to plead not guilty to avoid a conviction. A letter from him was attached to my original affidavit in support of my discharge.

[34]Mr Lal replies:

At the time Mr Juneja consulted me the plea of Not Guilty had been entered. I did not have instructions to deal with the pending criminal charge.

My instructions were to deal with immigration matters and it was not in my brief to advise the trial counsel, Aaron Koha.

I confirm my discussion with Mr Juneja that for a migrant to be granted a visa, he is required to be of good character.

My discussion with Aaron Te Koha was an email dated 15 June 2019 in which I confirmed the need for good character for a migrant to be granted a visa.

I neither had instructions nor presumed to advise Mr Te Koha about the plea.

[35]   In an email dated 23 March 2020 to counsel initially retained by Mr Juneja for the purposes of the appeal, Mr Lal did, however, state:  “I confirm that  I advised   Mr Juneja and his counsel that a plea of not guilty should not be entered”.

[36]   Although it appears that Mr Lal did advise Mr Juneja that he should not plead guilty, Mr Lal has attached his written terms of engagement to his affidavit. It is signed by Mr Juneja and makes clear that Mr Lal was advising him in relation to immigration matters only. Mr Lal may well have stressed the importance, for immigration purposes, of avoiding a conviction, but this  must  be viewed  in  the  context  that Mr Juneja was receiving separate and detailed advice from a PDS lawyer on defending the criminal prosecution. Mr Juneja knew that he could plead guilty and now obviously regrets with the benefit of hindsight that he did not do so.

Result

[37]None of the grounds of appeal are made out. The appeal is dismissed.

Woolford J