Kovalic v Police

[2019] NZHC 1214

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-000040

[2019] NZHC 1214

BETWEEN

LUKAS KOVALIC

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	20 May 2019
Appearances:	D Dickinson for the Appellant D R Taylor for the Respondent
Judgment:	30 May 2019

JUDGMENT OF HINTON J

This judgment was delivered by me on pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Counsel/Solicitors:

David Dickinson, Barrister, Auckland Meredith Connell, Auckland

LUKAS KOVALIC v NEW ZEALAND POLICE [2019] NZHC 1214 [30 May 2019]

[1]        Mr Kovalic appeals against a decision of Judge Ronayne in the District Court declining his application for a discharge without conviction on one charge of assault with intent to injure.1

[2]        Mr Kovalic was convicted and sentenced to 150 hours of community service and ordered to pay $500 emotional harm reparation.

Background

[3]        Mr Kovalic objected to Loviana Lavulo’s driving. He “tailgated” her and blasted her with his horn, causing her to pull over. They then had an argument through her driver’s window. Mr Kovalic slapped Ms Lavulo on the face through the window. Ms Lavulo got out of the car to confront him. As she reached for him, Mr Kovalic grabbed her by her arms, overpowered her and pinned her to the ground. Members of the public intervened and separated them. Mr Kovalic got back in his car and drove away. Ms Lavulo suffered a cut on the inside of her bottom lip, swelling of part of her head, a grazed left hand and bruising to her right shoulder.

[4]        Ms Lavulo describes the incident as “pretty scary”. She does not drive anymore, and avoids the area where the assault took place.

District Court decision

[5]        For a discharge without conviction, the Court has to be satisfied that the consequences of a conviction would be out of all proportion to the gravity of the offence.

[6]        The Judge assessed the gravity of the offence, as he is required to do in this context, by reference to the aggravating and mitigating factors of both the offending and the offender.

[7]In relation to mitigating factors, the Judge noted that:

1      New Zealand Police v Kovalic [2019] NZDC 2480.

(a)Mr Kovalic had provided a report from a psychologist, Mr van Niekirk, which “suggested” he had post-traumatic stress disorder as a result of an earlier car crash. However, the Judge considered the report inappropriately argumentative and based on facts different to the summary of facts. (I comment on this later and note that Mr Kovalic had also attended three counselling sessions with Mr van Niekirk prior to his report.)

(b)Mr Kovalic had done the Man Alive programme and completed a defensive driving course.

(c)Mr Kovalic had no previous convictions and so was entitled to the Judge proceeding on the basis he was otherwise of good character.

(d)Mr Kovalic had pleaded guilty, albeit after a period of time and some negotiation.

(e)Mr Kovalic was willing to undertake restorative justice. The Judge did not accept he was completely remorseful or taking complete responsibility because the psychologist’s report was prepared on the apparent basis that Ms Lavulo had attacked Mr Kovalic. The Judge saw this as victim-blaming. (I also comment on this below.)

[8]        The Judge said the offending was “road rage” and identified aggravating factors:

(a)It was an  unprovoked  assault  in  which  Mr  Kovalic  sought  out  Ms Lavulo.

(b)Mr Kovalic had struck Ms Lavulo’s head.

(c)When Ms Lavulo confronted him, Mr Kovalic continued the assault by overpowering her and pinning her to the ground.

(d)The victim suffered injuries and was no longer confident to drive.

[9]        Taking all of the aggravating and mitigating features of the offending and the offender into account, and taking into account that he considered it was a road rage incident, the Judge found that the overall gravity of the offending was “moderately high”. He referred to the need to denounce road rage offending, to hold Mr Kovalic accountable and to promote in him a sense of responsibility.

[10]      The Judge then weighed the consequences of a conviction with the gravity of the offence. In particular, he considered a letter from a lawyer, Anet Tarabova, produced in support of Mr Kovalic’s application. That letter stated that Mr Kovalic holds a temporary mid-skilled Essential Skills Work visa with an expiry date of 8 February 2021. It also stated that any applicant for a work or resident visa must be of good character, and that a consequence of the conviction would be that Mr Kovalic would fail the good character requirement and need a waiver before he could be granted a visa.

[11]      Judge Ronayne found that the consequence amounted to “no more than [a] possible impediment to future residency, not an absolute bar”. He said that, at its highest, the letter established there is a risk of failure to get residency. The Judge considered that Mr Kovalic’s behaviour and character should be left to the immigration authorities to assess with their appropriate expertise and in the context of their statutory obligations.

[12]      The Judge therefore found there was no disproportionality and declined the application.

Grounds of appeal

[13]The appellant submits that the District Court Judge:

(a)overstated the gravity of the offending;

(b)understated the gravity of the consequences of a conviction and the likelihood of those consequences;

(c)failed to have due regard to the principle and purpose of rehabilitation; and

(d)erred in his application of s 107 of the Sentencing Act 2002 (the Act).

Legal principles

[14]      An appeal against a refusal to grant a discharge without conviction under s 106 is an appeal against both conviction and sentence.2

[15]      The Court must set aside a conviction if it is satisfied a miscarriage of justice has occurred by virtue of a material error by the sentencing Judge in entering a conviction, or that a miscarriage of justice has occurred “for any reason” by the Judge erring in applying the principles under s 107 of the Act.3

[16]      Whether the s 107 test has been met is not a matter of discretion, so appeals are subject to normal appellate principles.4

Gravity of the offence

[17]      The appellant says that Judge Ronayne “failed to take the required holistic approach to the gravity of the offending by taking into account Mr Kovalic’s work toward rehabilitation” and  that  the  mitigating  features  “failed  to  alter  the District Court’s evaluation of the gravity”.

[18]      I consider that the Judge did take a holistic approach. He weighed all aspects of the offending together. He specifically took into account Mr Kovalic’s guilty plea, lack of previous convictions, willingness to attend restorative justice, self-reference to and completion of a Man Alive programme and, up to a point, remorse.

[19]      However, I consider it was wrong for the Judge to say that, after taking into account mitigating features, the final assessment of the gravity of the offending was moderately high. I consider, as in fact the Crown accepts, that as a starting point the

2      Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [7].

3 At [12].

4      Governed by Austin, Nichols & Co v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

offending was moderately high, bearing in mind that Mr Kovalic’s conduct was violent and unprovoked, and has had a significant impact on Ms Lavulo.

[20]      But the level of offending would then be reduced to moderate, or even a little below that, by quite weighty mitigating features. Again the Crown accepts that, overall, the gravity of the offending is properly classified as moderate. It seems to me the Judge has understated the mitigating features.

[21]      As Mr Dickinson submits, Mr Kovalic has really done all he could to mitigate his offending.  I will not repeat all of the matters already set out above.   I accept   Mr Dickinson’s submission that Mr Kovalic is genuinely remorseful. I also accept his submission that, while some of the language used for example by the psychologist may have been unfortunate, Mr Kovalic is not victim-blaming. Mr Kovalic points to the victim’s own evidence that she was reaching for Mr Kovalic, only as part of the overall factual matrix. Mr Kovalic accepts the incident is entirely his fault.

[22]      While I do not agree that the Judge “totally discounted” the evidence of the psychologist, as Mr Dickinson submits, I consider he did not give it sufficient credit. The Crown accepts, as I do, that the psychologist’s report establishes that Mr Kovalic was very likely suffering from post-traumatic stress disorder, that the offending was out of character (having regard also to there being no previous convictions), and that Mr Kovalic’s conduct was likely affected by the prior driving incident. I note that prior incident would have been alarming. A stack of timber had gone through the rear window of Mr Kovalic’s work van and was only stopped from collecting Mr Kovalic in the driver’s seat by the cage inside the vehicle. Mr Kovalic had just picked the work van up following repairs immediately before the present incident. However, while this places the offending in context, the fact of the matter is this was more than an outburst of anger. Mr Kovalic pursued Ms Lavulo, got her to pull over, confronted her at her car, and assaulted her, and then continued the assault when confronted in response.

[23]      I accept that it is unusual on an application like this to refer to the principles of sentencing as the Judge did, but it is not wrong. In any event, given I have made my own assessment and reached a different conclusion regarding the overall gravity of the

offending, I do not need to consider the further alleged errors in the Judge’s gravity assessment.

[24]      I conclude therefore that the gravity of the offending is moderate, or a little below that. The mitigating features are weighty and I accept  the submission  that  Mr Kovalic has learnt a huge lesson and is most unlikely to repeat what happened here (especially with the benefit of psychological counselling). However, the overall gravity cannot be reduced to a low level, as Mr Dickinson contends. This must have been a shocking experience for the victim. I hope she is recovering from it and will resume driving.

Consequences of conviction

[25]      The correct approach to assessing the consequences of conviction is that described by Randerson J in Iosefa v Police:5

[34]… It is not necessary for the Court to be satisfied that the identified direct and indirect consequences would inevitably or probably occur. It is sufficient if the Court is satisfied that there is a real and appreciable risk that such consequences would occur.

[35]However, the nature and seriousness of the consequence and that degree of likelihood of their occurring will be material to the Court’s assessment of whether those consequences would be out of all proportion to the gravity of the offence …

[26]      Mr Dickinson says Judge Ronayne erred by applying a test of “categorical certainty” rather than “a real and appreciable risk” and was plainly wrong in his assessment of the consequences of conviction.

[27]      He relies on the following passage where, after referring to Ms Tarabova’s letter, which I noted earlier, the Judge said:

This is the consequence relied upon. In my view it amounts to no more than

[a] possible impediment to future residency, not an absolute bar. Although there is no inflexible rule in these matters, the general rule is that assessment of a person’s character for the purposes of immigration decisions ought generally to be left to the authorities with the appropriate expertise and statutory obligations to do so. The Courts will not likely usurp that function. [“Likely” should probably read “lightly”.]

5      Iosefa v Police HC Christchurch CIV-2005-409-64-12, 21 April 2005 at [34]-[35].

[28]      Mr Dickinson also submits that the Judge understated the letter and appeared not to accept Ms Tarabova’s credentials.

[29]      There is no reason not to accept Ms Tarabova’s credentials and I do not consider the Judge intended that. Ms Tarabova has put the matter correctly and probably as high as she can.

[30]      Mr Dickinson submits that “Ms Tarabova’s expert opinion establishes that a conviction would certainly result in Mr Kovalic failing to meet the character requirement”. That is accepted by the respondent. I also accept it.

[31]      The point is that it  is  still  possible  for  Mr Kovalic  to  obtain  a  waiver.  Ms Tarabova’s evidence concludes that “based on a potential conviction, Mr Kovalic may not be granted a character waiver”. That conclusion is entirely consistent with the remarks of the District Court Judge.6 Whether a waiver is likely to be granted or not is unknown.

[32]      Further, there is a long line of cases which say that where a conviction may have consequences for the offender’s immigration status in New Zealand, it is generally appropriate for that issue to be resolved by the immigration authorities rather than by the Courts.

[33]      This is consistent with the legal position that it is not enough that the consequences of a conviction outweigh the gravity of the offending. Significantly more is required. The consequences must be “out of all proportion” to the gravity of the offending, before the Court has jurisdiction to grant a discharge without conviction.

[34]In R v Ho, the Court of Appeal said:7

Secondly, even if it is unlikely Mr Ho will be able to stay in New Zealand, that does not amount to a disproportionate consequence of the convictions. As a foreign national he has no general right to stay in New Zealand. It is a matter for immigration services to decide whether to renew his visa, having regard to factors including the Court’s assessment of the gravity of Mr Ho’s offending. The Court should not usurp that assessment …

6      At [21]-[22].

7      Ho v R [2016] NZCA 229 at [15].

[35]Judge Ronayne made similar statements, which I refer to above.

[36]      In George v Police, Brewer J acknowledged that there may be situations which the Court would intervene:8

I do not hold that the risk of deportation is a factor that the Court should never take into account in deciding the s 107 proportionality test. The section does not exclude effect on immigration status from consideration as a consequence. There will be situations where even the consequence of subjecting an offender to the scrutiny of Immigration New Zealand would be undue. But, in the usual run of cases, the Court should not take it upon itself to, in effect, decide immigration status.

[37]I do not consider this is one of the cases where the Court should intervene.

[38]      The gravity of the offence viewed overall is moderate, which is lower than the Judge’s assessment. But, even on that lower assessment of gravity, it cannot be said that the consequences are out of all proportion. A risk of failure to get residency on the basis of a violent offence is an ordinary consequence of a conviction such as this. That assessment falls to be made by the appropriate immigration authorities and I agree with the District Court Judge, it ought to be made with full information about the appellant. I am sure that the authorities will take careful note of the matters set out in this judgment and the points in respect of which I have disagreed with the Judge.

Conclusion

[39]      I therefore conclude that a discharge without conviction should not be granted because:

(a)the offending was moderate, or just below that, taking account of all factors including the injury and psychological impact on the victim;

(b)the consequences of a conviction – a risk of not getting residency – are both ordinary for offending of this nature and somewhat speculative; and

8      George v Police [2014] NZHC 1725 at [46].

(c)overall, the consequences of a conviction are not out of all proportion to the gravity of the offending.

[40]The appeal is dismissed.

Hinton J