K v Police

[2023] NZHC 3641

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2023-485-70

[2023] NZHC 3641

BETWEEN

K

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

7 December 2023

Counsel:

C Shade for Appellant

M K Story for Respondent

Judgment:

12 December 2023

JUDGMENT OF ELLIS J

[1]    Mr K is an Indian citizen who came to New Zealand with his wife and two-year-old daughter in June 2016. Mr K had an Essential Skills Work Visa and worked here as a computer engineer. He planned to apply for permanent residency in February 2019.

[2]    But on 2 January 2019 Mr K struck his wife during an argument about cooking some rice.1

1      According to the Summary of Facts to which Mr K later pleaded guilty, he slapped his wife once on the left cheek and twice on the right cheek. As she tried to leave, he struck her across the back of her body. The Summary of Facts also records that Mr K told Police he had slapped his wife after she had kicked him.

K v NZ POLICE [2023] NZHC 3641 [12 December 2023]

[3]    Mr K and his wife separated soon afterwards. Mr K continued to support his wife and child financially, but custody issues required the intervention of the Family Court. Orders were made permitting Mr K to have unsupervised overnight contact with his daughter every other weekend and (on the weeks he did not have her for the weekend) overnight on Mondays.

[4]    On 2 May 2019 Mr K pleaded guilty to a charge of assault on a person in a family relationship.2 He made an application for a discharge without conviction under s 106 of the Sentencing Act 2002 on 21 June 2019. Sentencing  was scheduled for  19 July 2019.

[5]    But on 15 July 2019, two more serious charges were laid against Mr K. These charges were the result of a further complaint first made by his wife after their separation (towards the end of February 2019) in which she alleged Mr K had sexually offended against her the previous year. The allegations resulted in Mr K facing one charge of sexual violation by unlawful sexual connection and one charge of attempted sexual violation.

[6]    Mr K subsequently received legal advice that a discharge without conviction on the assault charge was no longer an option.3

[7]    In September 2020, following a trial before Judge Hastings and a jury, Mr K was convicted of the two more serious charges and remanded in custody. The Judge later sentenced Mr K to three years and nine months’ imprisonment on the two serious charges and to a concurrent sentence of one-month’s imprisonment for the original assault charge.4

2      Crimes Act 1961, s 194A (maximum penalty of two years’ imprisonment).

3      As the Court of Appeal later recorded, Mr K says his wife fabricated the allegations to defeat his chances of obtaining a discharge without conviction on the assault charge, to bolster a case she had brought in the Family Court seeking sole care of their daughter, and to have him deported while she obtained permanent residency for herself and the child; K (CA719/2020) v R [2021] NZCA 574 at [12].

4      R v [K] [2020] NZDC 24835; My understanding is that, upon sentencing, Judge Hastings also made a final protection order in favour of Mr K’s ex-wife (the complainant) which remains.

[8]    But on 3 November 2021, the Court of Appeal quashed Mr K’s convictions on the two serious charges.5 After spending 427 days in custody, Mr K was released from prison on 11 November 2021.

[9]    A Judge alone retrial on those charges took place in mid-May 2023 and, on 22 May, Mr K was acquitted by Judge Mika.6 Soon after that he left New Zealand for India because his Essential Skills Work Visa had, in the meantime, expired. He left behind his estranged wife and their child, whom he had been unable to see since he was first imprisoned in September 2020. Since then, Mr K’s wife has opposed all contact with his daughter, including the sending of cards and gifts. There is a hearing in Family Court scheduled for January 2024 to decide contact issues.

[10]   So Mr K now seeks to appeal his conviction and sentence on the assault charge. He says it was always his intention to apply for a discharge without conviction and that that is the appropriate outcome now. He wishes very much to come back to New Zealand to work, and to have a relationship with his daughter, who is now nine. He is concerned that he will be denied a further visa if his conviction is maintained and that his ex-wife will prevent any remote contact that may be ordered by the Family Court.

Extension of time

[11]   Leave to appeal is required to bring the appeal because it is quite significantly out of time. In light of the rather unusual history of the matter leave is not opposed by the Crown. It is in the interests of justice to grant leave and I do so accordingly.

Fresh evidence

[12]   Mr K also seeks leave to adduce further evidence on the appeal: an affidavit sworn by him and the affidavit of immigration lawyer, Mr Livingston. Again, the Crown very fairly does not oppose. The Court of Appeal has observed that evidence from lawyers specialising in immigration is “frequently helpful” when considering the

5      K (CA719/2020) v R, above n 3.

6      Police v [K] [2023] NZDC 9680.

question of a discharge.7 Mr K’s affidavit provides an update on his current familial and immigration circumstances. I am satisfied that the evidence is fresh, credible and cogent. Again, I grant leave accordingly.

Approach on appeal

Jurisdiction

[13]   The jurisdiction to hear an appeal where an appellant seeks a discharge without conviction in circumstances where that outcome was not sought at first instance was discussed by the Court of Appeal in R v Bedford.8 The Court said:9

[16]      In Ho v R, Mr Ho had been convicted of two assaults in the District Court where he had not sought a discharge without conviction. He appealed to the High Court on the ground that he should have been discharged without conviction. That appeal was dismissed. In this Court, Mr Ho submitted that the High Court erred in law in ruling that the failure to make an application for a discharge without conviction in the District Court precluded raising the issue on appeal. The Court put to one side whether the High Court was correct to refuse to entertain an application for discharge without conviction when there had been no such application in the District Court. The Court said it would assume, for the purpose of the appeal, that it may be appropriate to consider granting a discharge on appeal where there are changes in circumstance or fresh evidence becomes available.

[17]      A number of High Court decisions have concluded that the failure to apply for a discharge without conviction at first instance is not fatal. They note that s 232 of the Criminal Procedure Act 2011 provides for an appeal against conviction if a miscarriage of justice has occurred for any reason. Section 11(1)(a) of the Sentencing Act 2002 imposes a mandatory obligation on a court to consider discharging an offender without conviction if appropriate.

[18]      We are satisfied that, had Mr Bedford been made aware of the immigration consequences for his family of a conviction, he would have actively sought a discharge without conviction. Had he done so, there was a possibility of a different outcome. We accept in those circumstances it is arguable that there has been a miscarriage of justice. We therefore approach the appeal on the basis that an appellate court does have jurisdiction to consider an appeal against conviction and sentence on the grounds the offender should have been discharged without conviction where there is a change of circumstance or where fresh evidence becomes available, even if there was no such application at first instance.

7      Sok v R [2021] NZCA 252 at [53].

8      Bedford v R [2021] NZCA 395.

9      Citations omitted.

[14]   In the present case, there is (as I understand it) no dispute that Mr K intended initially to apply for no discharge without conviction but did not do so because he was to be sentenced on other, more serious charges, as well. The fact that he was later successful in appealing his convictions on those other charges, and then acquitted of them, is plainly a material change of circumstances.

[15]   I agree with Ms Shade that the change is one that can be said to give rise to a miscarriage because Mr K was effectively deprived of the opportunity to apply for a discharge without conviction on the assault charge. So the question really becomes whether that was the right sentence here.

Discharges without conviction

[16]   Section 106 of the Sentencing Act 2002 authorises the court to discharge an offender without conviction, unless required by statute to impose a minimum sentence.10 A discharge under s 106 is deemed to be an acquittal.11 But s 107 provides that the court must not discharge an offender without conviction unless satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[17]   In Prasad v R, the Court of Appeal set out the three steps that need to be taken to make the relevant assessment under s 107:12

(a)identification of the gravity of the particular offence, taking into account all aggravating and mitigating factors of the offending and the offender;

(b)identification of the direct and indirect consequences of conviction; and

(c)a determination of whether those consequences are “out of all proportion” to the gravity of the offence.

[18]   There must be a “real and appreciable” risk that any relevant consequence will happen in the future.13

10     Sentencing Act 2002, s 106(1).

11     Sentencing Act, s 106(2).

12     Prasad v R [2018] NZCA 537 at [11].

13     Prasad v R, above n 12, at [11].

[19]   Where the s 107 threshold is met the court retains a residual discretion to decline a discharge under s 106.14

Gravity of the offence

[20]   As noted earlier, when sentencing Mr K for the more serious charges following his first trial Judge Hastings also imposed a concurrent sentence of one month’s imprisonment on the assault charge, noting that it was “more relevant as evidence of the nature of the relationship”.15 No other comment was made regarding the seriousness of the offence or about Mr K’s culpability.

[21]   Based on the Summary of Facts, I agree with Ms Shade that the offending can fairly be seen as being of low to medium gravity. Although family violence is not to be countenanced, it seems the slaps here constituted a brief and isolated incident. The gravity is further reduced by the mitigating factors personal to Mr K. It seems plain that these factors can include post-offending matters and rehabilitative steps.16 So it is possible to have regard to Mr K’s guilty plea, previous good character, remorse and rehabilitative efforts—including his completion of a Non-violence Programme. As well, Mr K spent 427 days in prison prior to his sexual violence convictions being overturned, although I am cautious about placing too much weight on that.

[22]   I accept Ms Shade’s submission that—but for his sentencing on the more serious charges—it is likely that Mr K would (at worst) have received a community-based sentence on the assault charge. Overall, therefore, I assess the gravity of the offending as low.

Direct and indirect consequences of conviction

[23]   The key consequence for Mr K concerns his ability to obtain a new work visa and return to New Zealand. He says, and I am inclined to accept, that obtaining a visa is likely to be the only way to guarantee Mr K will be able to have contact with his

14     Prasad v R, above n 12, at [31].

15     R v [K], above n 4, at [10].

16     See, for example, Mathieson v Police [2019] NZCA 406 at [15] and Chaudhary v Police [2021] NZHC 898 at [12]–[13].

daughter (in person or remotely).17 It is therefore necessary to be clear about what the legal position is in that regard.

The decision in Sok

[24]   In its decision in Sok v R the Court of Appeal referred to the primary and tertiary legislation relevant in such a case, saying:18

[23]      … We refer also to the Immigration Act 2009 (the Act) and the [Immigration New Zealand (INZ) Operational] Manual, in which is found instructions authorised under sections 22–25 of the Act. By way of example, s 22(6) provides that rules or criteria relating to visa eligibility may include “matters relating to character”. Instruction A5.1 of the Manual specifies that applicants for all visas “must be of good character”. The Manual goes on to prescribe that character checks must be carried out on applicants for a temporary entry visa who are over 17 years of age and intend to stay in   New Zealand for 24 months or more, or on any other applicant for a temporary entry visa where INZ decides it is necessary.

[24]The Act precludes a visa for persons convicted within the preceding

10 years of an offence for which they were sentenced to a term of imprisonment of 12 months or more. Applicants for a temporary entry class visa who have been convicted of certain other offences do not face an automatic prohibition. Rather, they are normally ineligible unless granted a character waiver. Instruction A5.45 provides that:

A5.45 Applicants normally ineligible for a temporary entry class visa unless granted a character waiver

Applicants who will not normally be granted a temporary entry class visa, unless granted a character waiver include any person who:

…

(c)at the time of application:

(i)has been charged with an offence, which on conviction, would make section 15 of the Immigration Act 2009 apply to that applicant; or

(ii)is under investigation for such an offence; or

(iii)is wanted for questioning about such an offence; or

(d)has been convicted at any time of:

(i)any offence for which they have been imprisoned; or

17     Mr K’s evidence about this was supported by Ms Shade’s advice from the bar. She is also acting for Mr K in the Family Court proceedings.

18     Sok v R, above n 7 (citations omitted).

(ii)an offence in New Zealand for which the court has the power to impose imprisonment for a term of three months or more; or

…

It will be seen that Mr Sok would normally require a character waiver to obtain a visa because the offence of which he was convicted carries a maximum term of more than three months’ imprisonment.

[25]      The Act and Manual do not specify what must be considered when assessing character in a given case. The Manual does state that applicants for a temporary entry class visa must provide a police certificate “if required”. It does not require that they declare offences that have not resulted in convictions. Nor does it preclude INZ taking into account conduct that was disposed of otherwise than by conviction, including conduct that resulted in a discharge.

[26]      The Manual provides in Instruction A5.45.1 that an immigration officer must not automatically decline an application for a character waiver. Rather, the officer must make and record a reasoned decision whether to waive the requirement or not.

[25]A little later in the judgment the Court observed:19

The central premise of the application for discharge was that, absent the conviction, Mr Sok would not require a character waiver and so would likely be granted a work visa. This claim may have had some merit previously to the extent that, notwithstanding what the legislation and Manual have to say about character requirements, INZ does not in practice require a character waiver where a person who has committed an offence carrying a maximum term of more than three months imprisonment is subsequently discharged without conviction. …

[26]             In that case, however, the horse had already bolted: Mr Sok’s application for a visa and a character waiver had already been declined, the time for appealing had expired and he was liable for deportation. Although it was still possible for Mr Sok to apply for a temporary visa from offshore, the Court said:20

[62]      The difficulty with this argument is that it invites the Court to grant a discharge in order that Mr Sok need not disclose his offending to INZ when he makes an offshore application. Courts usually refuse to grant discharges sought for that purpose. It is no answer to point to INZ processes under which a character waiver may not be required for a person without convictions, for the good character requirement remains and the offending is a relevant consideration. As noted … the Manual prescribes that character checks must be carried out and INZ may consider conduct that resulted in a discharge. In

19     At [31] (emphasis added).

20     Citations omitted.

any event, the evidence does not persuade us that if a discharge were granted INZ would overlook the offending when considering an offshore application.

[63]      We will assume that the absence of a conviction could have a positive influence on the mind of a  decision-maker.  We  recognise  too  that  in  Bong v R, in which the offender’s immigration status also changed for the worse between charge and appeal, this Court accepted INZ would learn of the offending but found that a discharge might nonetheless substantially improve his prospects of obtaining a visa. It seems the Court accepted Mr Bong’s application for a temporary (visitor) visa had failed because of the conviction, which is not the position on the facts before us. It appears too that the Court may have accepted Mr Bong would likely no longer fail INZ’s character requirements if discharged. We have accepted on the material before us that while Mr Sok would not be presumptively ineligible if discharged, the good character requirement must still be met. The overall gravity of his offending is greater than Mr Bong’s and INZ has already assessed his character.

[64]      It follows that there is no reason to think a discharge would materially alter Mr Sok’s prospects of obtaining a visa from offshore. We are not prepared to accept that failure to obtain a new visa would be a consequence of conviction.

Mr Livingston’s evidence

[27]             The  summary  in  Sok  is  broadly  supported  by  the  evidence  given  by  Mr Livingston in this case, although he did not address the wider character requirement or the requirement for a Police certificate, which is mandatory if the application is for a work visa. As will be evident from the discussion above, those matters were of central importance in Sok.

[28]             By way of his own summary, Mr Livingston’s evidence was that the “likely sequence of immigration consequences that will flow from a conviction” are:

a)The defendant can apply for a work or visitor visa, however, both applications will require him to tell INZ about the conviction and apply for a character waiver;

b)INZ will not normally grant visas where the applicant has been convicted at any time of an offence where the court has the power to impose imprisonment for a term of three months or more;

c)The defendant will have to establish compelling circumstances to establish an exception to the rules and obtain a character waiver;

d)INZ will decline the application in the absence of compelling circumstances;

e)If the application is declined, the defendant will not be able to return to New Zealand and be reunited with his daughter;

f)The defendant has no right of appeal or reconsideration against INZ;

g)The defendant can reapply for visas but this is only practical if there has been an improvement in circumstances (e.g., an increased period of time with no offending);

h)The defendant will have to repeatedly declare his conviction when applying for future visas including residence.

[29]Mr Livingston concluded:

17If a discharge without conviction were granted, the defendant does not have to disclose a sentence of discharge without conviction to INZ during either a visitor or work application or when applying for residence. Based on his background, he appears likely to obtain a work or visitor visa. A consequence of the conviction is therefore that these positive outcomes would be jeopardised to a reasonable degree.

Discussion

[30]             I am prepared to proceed on the same basis as set out by the Court of Appeal at [63] of Sok, a case specifically relied upon by the Crown here. In other words, I am prepared to assume that—despite the more general character requirement—the absence of a conviction could have a positive influence on the mind of an INZ decision-maker. Even if INZ learns of the offending a discharge might nonetheless substantially improve Mr K’s prospects of obtaining a visa.

[31]             The ultimate refusal of a discharge without conviction in Sok, however, turned on the Court’s view that—largely because of the gravity of the offence committed by Mr Sok—there was no reason to think a discharge would materially alter Mr Sok’s prospects of obtaining a visa from offshore.21 The offence committed by Mr K is of a significantly less serious kind.

[32]             As well, there is a material difference between Mr K’s family circumstances and those of Mr Sok. As already noted, I accept that Mr K’s prospects of having any

21 Mr Sok had been initially charged with wounding with intent to cause grievous bodily harm. The victim was a five-month-old baby. Although Mr Sok eventually pleaded guilty to a lesser charge of injuring with reckless disregard for the baby’s safety the factual reality was that the child suffered a “significant head injury” and serious ongoing effects. The Court observed that despite the guilty plea there was a continued reluctance to take responsibility for the offending although there were signs of remorse and rehabilitative steps had been taken. The Court concluded the District Court Judge had been “plainly right to characterise this as serious offending’, which engaged s 9A of the Sentencing Act; Sok v R, above n 7, at [4], [8] and [12].

kind of contact with his daughter will be significantly diminished if he is unable to return here. By contrast, Mr Sok’s family was said to be “fractured already” with some members of it already living in Cambodia.22

[33]             So although I acknowledge Ms Storey’s point that the now orthodox approach is for the courts to leave the assessment of the immigration consequences of offending or a conviction to the immigration authorities, this is one of those cases where the     s 107 disproportionality is clear enough for the Court to intervene.23 In the rather unusual circumstances of this case I consider that the consequences of a conviction for Mr K would be disproportionate to the gravity of the relevant offence. His conviction for assault is therefore quashed. He is discharged without conviction instead.

Rebecca Ellis J

Solicitors:

Te Aro Law Ltd, Wellington Crown Law, Wellington

22     Sok v R, above n 7, at [22].

23     As it was in Nanda v Police [2023] NZHC 415 at [15]; see also Sok v R, above n 7, at [51].