Kumar v Police
[2015] NZHC 3293
•17 December 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-000328 [2015] NZHC 3293
BETWEEN RAVI KUMAR
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 14 December 2015 Appearances:
P Borich for Appellant
N Fletcher for RespondentJudgment:
17 December 2015
JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie on 17 December 2015 at 4.30pm
pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:……………………………….
Solicitors:
P Borich, Auckland
Kayes Fletcher Walker, Auckland
KUMAR v NZ POLICE [2015] NZHC 3293 [17 December 2015]
Introduction
[1] On 22 April 2015, Judge Bouchier, sitting in the Pukekohe District Court, convicted the appellant, Mr Kumar, of one charge of assault with a weapon. He was sentenced as follows:
(a) to a pay a fine of $250;
(b) to pay Court costs of $130; and
(c) to pay emotional harm reparation to the complainant of $300. [2] Mr Kumar had pleaded guilty to the charge.
[3] On 7 October 2015, Mr Kumar appealed his conviction. The appeal was filed some considerable time after the appeal period had expired. Mr Kumar seeks leave to appeal out of time. In the event that leave is granted, he seeks to set aside the sentence imposed. He argues that he should be discharged without conviction pursuant to s 106 of the Sentencing Act 2002. He says that he is likely to be deported as a result of the conviction and that this consequence is disproportionate to his offending.
Application for leave to appeal out of time
[4] Mr Fletcher, appearing for the respondent, did not oppose the application for leave to appeal out of time.
[5] It appears from an affidavit which has been filed that Mr Kumar did not raise his immigration status with the solicitor representing him at the time the conviction was entered. Mr Kumar did not then know that a conviction might affect that status. He only became aware that a conviction could result in deportation when he spoke to an immigration lawyer in late August 2015. He says that he contacted a criminal barrister on 28 September 2015, and instructed him to lodge the appeal. The appeal is dated 7 October 2015. I am satisfied that it is appropriate, and in the interests of justice, to grant leave for the appeal to be filed out of time.
Fresh evidence
[6] Mr Kumar has filed an affidavit. It is advanced on the appeal as fresh evidence. It was not before Judge Bouchier when her Honour convicted and sentenced Mr Kumar. Indeed, Judge Boucher was not asked to discharge Mr Kumar without conviction.
[7] Under s 335 of the Criminal Procedure Act 2011, this Court, on appeal, can conduct its own enquiry into evidential matters if it considers it necessary or expedient in the interest of justice to do so.1
[8] The approach taken by the Court to the receipt of fresh evidence has been comprehensively summarised by Tipping J in R v Bain.2 The evidence must be fresh and credible. The overriding criterion is always what course will best serve the interests of justice.
[9] Here the affidavit is not fresh. The material in it could have been advanced by Mr Kumar when he was sentenced if he had then been aware that the conviction might result in his deportation. It is however credible.
[10] I am satisfied that the unusual circumstances of this case, where the order which is now sought was not raised before the District Court Judge, make it both necessary and expedient, and in the interests of justice, for me to consider the affidavit filed by Mr Kumar.
[11] I have taken Mr Kumar’s affidavit of 20 November 2015 into account.
Factual background
[12] Mr Kumar and the victim were both working at a New World supermarket.
[13] On 19 March 2015 Mr Kumar and the victim were taking a break in the staff common room, along with a number of other work colleagues. Mr Kumar was smoking a cigarette outside on a deck area. There was some gesturing and verbal
banter between Mr Kumar and the victim through a window.
1 Criminal Procedure Act 2011, s 335(2).
2 R v Bain [2004] 1 NZLR 638 (CA) at [22] and [26].
[14] The victim then got up from the table where he was sitting and went to a sink to clean his plate. Mr Kumar re-entered the staff room. He went to a cutlery drawer. He picked up a black handled kitchen knife, which had a blade approximately 10 centimetres in length. He grabbed the victim by the throat gripping him tightly. He then aggressively repeated the following: “You will show me respect – do you understand”.
[15] Mr Kumar was holding the knife in his right hand and pointing it an aggressive and threatening fashion at waist height. The victim believed that Mr Kumar would stab him. Mr Kumar however released the victim and walked out of the staff room.
[16] It is apparent from the materials which have been filed that there was a background to the assault. Mr Kumar had been the subject of repeated racial abuse by the victim in the months leading up to the incident. He tried to deal with the abuse in various ways. Initially he abused the victim back. Then he tried silence in the face of racial taunts. Neither strategy worked. Mr Kumar became increasingly irritated by the abuse. He tried to ignore it, but it continued. Eventually Mr Kumar snapped, and took the actions which I have outlined above.
[17] Consequent on the above events, Mr Kumar’s employer took formal disciplinary action against him. He resigned from his position. Initially he found alternative employment in Hamilton, and he commuted to Hamilton from Waiuku on a daily basis. This however was putting a strain on his marriage, and he has now found an alternative and responsible position in Auckland.
District Court’s decision
[18] As noted, Judge Bouchier was not asked to discharge Mr Kumar without conviction. Her sentencing notes are brief. She took into account Mr Kumar’s guilty plea and his previous good character. She nevertheless considered that the offending needed to be taken seriously, and that it was offending which could have escalated. She made the various orders which I have summarised above.
Submissions
[19] Mr Borich argued that Mr Kumar should be discharged without conviction pursuant to s 106 of the Sentencing Act. He referred to the relevant authorities. He noted the facts I have set out above, and submitted that the background to the offending was unusual. He accepted that the use of a knife was a serious matter, but noted that there was no injury. He submitted that there was no intention to use the knife. He noted that the abuse from the victim was personal and of a racial nature, and that it was prolonged and provocative. He argued that Mr Kumar’s actions were completely out of character, and observed that he pleaded guilty at the first reasonable opportunity
[20] Mr Borich then turned to the consequences of the conviction. He submitted that it is likely that Mr Kumar will be deported. He noted that Mr Kumar and his wife, who is now pregnant, are good candidates for New Zealand citizenship, and argued that the seriousness of a conviction and the penalties already suffered by Mr Kumar and his family greatly outweigh the seriousness of the offending.
[21] Mr Fletcher submitted that the gravity of the offending is low to moderate. He acknowledged that a conviction may have consequences in terms of Mr Kumar’s immigration status and that it could render him liable for deportation, but he reminded me that the courts have generally concluded that deportation decisions should be left to the appropriate immigration authorities. He submitted that the consequences of the conviction were not disproportionate to the gravity of the offending, and that the Court should dismiss the appeal.
Analysis
[22] The District Court was not asked to determine whether or not Mr Kumar should be discharged without conviction. This Court is required to undertake its own assessment.
[23] A discharge without conviction is available under s 106 of the Sentencing
Act, where the criteria set out in s 107 are met. That section provides as follows:
107 Guidance for discharge without conviction
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[24] The Court of Appeal in Z v R set out the three step approach required by the section:3
(a) First, the Court must consider the gravity of the offending;
(b)Secondly, the Court must consider the direct and indirect consequences of a conviction for the offender; and
(c) Finally, it must consider whether such consequences are out of all proportion to the gravity of the offending.
[25] I address the gravity of the offending. In doing so I take into consideration all relevant aggravating and mitigating factors relating to the offending and the offender.
[26] It is necessary to consider the background and to place the offending in context. There was a prolonged history of racial abuse directed by the victim towards Mr Kumar. That is clear from the various documents which were produced in the course of the disciplinary process which was followed by Mr Kumar’s employer following the incident. Another staff member observed the racial abuse. Mr Fletcher told me that he had asked the officer in charge to speak to the victim and that the victim had acknowledged that there was a background to the assault.
[27] It also seems clear that Mr Kumar tried various strategies to cope with the abuse – first by abusing the victim back, then by responding politely and finally by trying to ignore the victim. It is understandable that Mr Kumar ultimately snapped.
[28] The incident itself was ill thought out, and it was an unfortunate response to the abuse which was occurring. There were alternative courses of action open to Mr
Kumar, for example complaining to his employer, which he should have taken. He
3 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [27] and [28].
chose to resort to violence, taking matters into his own hands. The offending was serious, and a potentially dangerous weapon was wielded by Mr Kumar. While there was no injury, and no obvious intent to use the knife, the situation did have potential to escalate. The victim reasonably feared that he was going to be stabbed. The offending was also aggravated by the fact that Mr Kumar grabbed the victim by the throat, which is a particularly vulnerable part of the body.
[29] Mr Kumar has not previously offended, and in all other respects seems to be a person of excellent character. He has supplied a number of references to the Court which support that assessment, and attest to his work ethic and integrity.
[30] In my view, the offending was of low to moderate gravity.
[31] I now turn to consider the direct and indirect consequences of a conviction. [32] The Court must be satisfied that there is a real and appreciable risk that the
identified direct and indirect consequences will occur.4 This Court has cautioned against granting a discharge when the consequences are unclear and where there is insufficient evidence to support the assertions as to the alleged consequences.5
[33] Here, the consequence is the possibility of deportation.
[34] Mr Kumar has obtained an opinion from a Mr Martin, who is a lawyer specialising in immigration matters, working for a prominent Auckland legal firm. Mr Martin has reviewed Mr Kumar’s circumstances, and has given an opinion as to the likely immigration consequences. The Crown does not take issue with that opinion.
[35] The opinion can be summarised as follows:
(a) Mr Kumar received a residence visa permitting him to come into
New Zealand in August 2013.
(b)Under s 161(1)(b) of the Immigration Act 2009, Mr Kumar is now liable for deportation because he has been convicted of an offence
4 Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [34].
5 M v Police [2013] NZHC 1101; Simmonds v Police [2014] NZHC 2488.
where the Court had the power to impose a custodial sentence of two years or more, and the conviction occurred within five years of the date he was first granted a residence visa.
(c) Once Immigration New Zealand becomes aware of a conviction (and it seems likely that this will be sooner rather than later), it will likely investigate whether or not Mr Kumar should be deported. Such matters are referred to a division within Immigration New Zealand known as the Resolutions Branch. It is responsible for investigating persons liable to be deported, and for preparing reports for the Minister of Immigration to enable the Minister to exercise his powers under s 161 and ss 170 to 174 of the Immigration Act.
(d)Any report prepared for the Minister is likely to recommend one of three options:
(i) cancelling the deportation liability;
(ii)suspending the deportation liability for a maximum of five years and on certain conditions; or
(iii) issuing a deportation liability notice.
(e) If a deportation liability notice is issued then Mr Kumar does have a right of appeal. The available grounds for appeal would require Mr Kumar to demonstrate exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for him to be deported. He would also have to demonstrate that it would not, in all the circumstances, be contrary to the public interest to allow him to remain in New Zealand. This is a high threshold, and more than the economic and/or social upheaval or inconvenience would normally be required.
(f) Were Mr Kumar to be issued with a deportation liability notice, and appeal the same, there are no factors in his case that are of a sufficient humanitarian nature such that they would be regarded as exceptional.
Any appeal on humanitarian grounds would be likely to be unsuccessful.
(g)There are consequences for Mr Kumar’s wife. She currently holds a work visa permitting her to be in this country. That visa was granted to her on the basis of her partnership with Mr Kumar. She is pregnant. While she is eligible to seek residence based on her partnership with Mr Kumar, she would not be able to do so if he is made liable for deportation and that liability is upheld on appeal. Her only option would then be to apply independently.
(h) There are also consequences for Mr and Mrs Kumar’s unborn child.
If that child is born while Mr Kumar still holds a residence visa, then the child will be a New Zealand citizen. However, the birth of a New Zealand citizen child is not of itself an exceptional circumstance of a humanitarian nature that would be likely to result in a successful appeal against deportation by Mr Kumar, although the interests of the child would fall to be considered. Nor would the birth of the child entitle Mrs Kumar to residence under current resident visa criteria.
(i)If Mr Kumar had been discharged without conviction, he would not be liable for deportation as he would not have been convicted of an offence.
[36] The primary consequence of the conviction for Mr Kumar is that he has exposed himself to the risk of being found liable for deportation. That liability could be cancelled if the Resolutions Branch prepares a report to the Minister of Immigration making that recommendation and the Minister accepts that recommendation. Alternatively, it may be that the Minister, on the recommendation of the Resolutions Branch, suspends the deportation liability or issues a deportation liability notice.
[37] The courts have generally concluded that deportation decisions are better left to the appropriate immigration authorities. In this regard, I note the comments of Asher J in Zhang v The Ministry of Economic Development.6
[14] In relation to a conviction affecting an offender’s immigration status,
… the courts often conclude that it is appropriate for the consequences of conviction to be resolved by the appropriate authorities, rather than the Court attempting to pre-empt that decision-making process by a decision to discharge without conviction: … There is nothing that requires the courts to intervene to try and impose their perception of what the right immigration consequences should be. That is best left to the immigration authorities. But a Court’s assessment of culpability in the sentencing exercise may assist those authorities. And there will always be occasions where in a finely balanced case a discharge may be warranted on these types of grounds: …
[38] Similarly in A v R7 the Court of Appeal observed that given the seriousness of the departure from community standards involved in the offending there in issue – conspiracy to commit incest – it was appropriate for inter alia the Immigration Service to be able to decide for itself the effect the conviction should have. The Court did not think it appropriate for it to usurp the role of the Immigration Service.8
[39] In George v Police,9 Brewer J stated as follows:
[46] 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.
[40] This view was noted in Jeon v Police,10 where Woodhouse J nevertheless granted a discharge because of the risk of deportation. In that case, the offending in issue was dangerous driving. The Judge took the view that the offending, while reasonably serious, arose out of a moment’s inadvertence. He noted that generally
immigration matters are appropriately left to the Minister of Immigration, and that
6 Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011 at [14].
7 A v R [2011] NZCA 328.
8 A v R, above n 7, at [30].
9 George v Police [2014] NZHC 1725.
10 Jeon v Police [2014] NZHC 66.
therefore he had to proceed with caution in determining whether the consequences were sufficiently disproportionate to the gravity of the offence to justify consideration of a discharge without conviction. He recognised that nevertheless there will be cases where the s 106 discretion should be exercised and the matter should not be left for determination by the Minister of Immigration.
[41] Mr Kumar’s deportation is not inevitable. He is however at appreciable risk if the conviction stands. Unless the deportation liability is cancelled, he will either have the threat of deportation liability hanging over his and his family’s heads for a number of years, or he will be issued with a deportation liability notice. If he receives a deportation liability notice, it seems likely that he will be deported. There are consequences not only for Mr Kumar, but also for his wife and unborn child. I have noted those above. These consequences (effectively for third parties) are
relevant, and they can be taken into account.11
[42] In my view, the consequence for Mr Kumar and his family is real and appreciable. There is a distinct risk that the consequence could occur.
[43] I now turn to the balancing exercise.
[44] The offending was of low to moderate seriousness. It was however a response to the victim’s prolonged racial abuse. Mr Kumar reacted inappropriately. He demanded to be treated with respect. He used a knife to reinforce that demand. That was foolhardy but I accept that he did not intend to use the knife. Mr Kumar’s actions cannot be condoned, but they are understandable. Mr Kumar has led an otherwise exemplary life. He has glowing references from his employers and but for the conviction, it would seem that he would be eligible for New Zealand citizenship. I am satisfied on the materials before me that Mr Kumar has learnt his lesson, and that there is no risk of similar offending in the future.
[45] The immigration consequences for Mr Kumar and for his wife and son, are real and appreciable. Were the conviction to stand, Mr Kumar would be at
11 See, e.g. JMT v R [2015] NZHC 1936 at [30]; Neason v Police HC Dunedin CRI-2004-412-
000049, 17 March 2005.
significant risk. There is even a risk that his family unit could be broken up if he is deported and his wife and unborn child remain in New Zealand.
[46] I am satisfied that, under s 107 of the Sentencing Act, the consequences of a conviction in this particular case are out of all proportion to the gravity of the particular offence committed by Mr Kumar.
[47] Finally I turn to the exercise of the discretion conferred by s 106. In my view it is appropriate to exercise that discretion in Mr Kumar’s favour. It would be a rare case where an offender has passed through the s 107 gateway, but is then not discharged under s 106(1).12 This is not such a case.
[48] Accordingly, I allow the appeal. Mr Kumar’s conviction is set aside. There is an order under s 106 of the Sentencing Act that Mr Kumar be discharged without conviction.
[49] I also order, pursuant to s 106(3), that the emotional harm reparation ordered by Judge Bouchier and already paid by Mr Kumar remain with the victim. The Ministry of Justice is to repay to Mr Kumar the fine of $250 and the Court costs of
$130, imposed by the Judge, and already paid by Mr Kumar. These sums do not fall
within the provisions of s 106(3) of the Act.
Wylie J
12 Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [13].
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