Likiliki v Police

[2023] NZHC 1428

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2022-409-171

[2023] NZHC 1428

BETWEEN

ANTHONY LIKILIKI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	27 April 2023
Appearances:	H L Beaven and O K Jarvis for the Appellant G E R Alloway for the Respondent
Judgment:	9 June 2023

JUDGMENT OF HARLAND J

Introduction

[1]    Anthony Likiliki appeals the decision of Judge Zohrab dismissing his application for discharge without conviction1 following his plea of guilty to a charge of assault with intent to injure 2 where the victim was his former partner. He says that the Judge was wrong to dismiss his application because he will likely face deportation to Tonga and this, he says, is a consequence of the conviction out of all proportion to the gravity of his offending.3

[2]    Appeals against a refusal to grant a discharge without conviction proceed by way of rehearing.4 That means this Court, on appeal, must look at the matter afresh.

1      New Zealand Police v Anthony Likiliki [2022] NZDC 19385.

2      Crimes Act 1961, s 193; maximum penalty three years’ imprisonment.

3      Sentencing Act 2002, ss106 and 107.

4      H v R [2012] NZCA 198 at [35]-[36].

LIKILIKI v POLICE [2023] NZHC 1428 [9 June 2023]

If it concludes that a discharge without conviction should have been granted, the appeal must be allowed.5

[3]    I have decided to grant the appeal. This Judgment sets out my reasons for doing so.

Gravity of the offence6

[4]    Mr Likiliki is Tongan and the eldest of five children. He and his family moved to New Zealand in 2019 under the Pacific Access Category Resident Visa programme, which operates by way of ballot. The Likiliki family had registered for this programme for almost 10 years before receiving an opportunity to apply for New Zealand residency, following which they completed their compulsory two year stay before being eligible to apply for residency. Mr Likiliki and his family members are now in receipt of resident visas. Mr Likiliki would have been either 18 or 19 years of age when the family moved to New Zealand.

[5]    Mr Likiliki completed his education in Tonga. It was a great achievement for his family that he was able to do so at what the s 27 report writer said is the top school in Tonga. He additionally represented his country in football between the ages of 15 and 18.

[6]    In 2019, Mr Likiliki moved from Auckland, where he had been living with his family, to Christchurch because he had been invited to play for a football team at premier level and because of his relationship with the victim of his offending. It appears that Mr Likiliki and the victim had been in a relationship since they were 18 years of age. While in Christchurch, in addition to playing football, he worked part- time and started studying to become a pilot.

[7]The month prior to his offending, Mr Likiliki turned 22 years of age.

5      Criminal Procedure Act 2011, s 232(2)(b) or (c); and Jackson v R [2016] NZCA 627 at [12].

6      It is settled that “gravity of the offence” in s 107 Sentencing Act takes into account the aggravating and mitigating circumstances of the offending and offender. Z v R [2012] NZCA 599.

[8]    On 21 January 2022, Mr Likiliki and his partner had an argument. The argument became physical, with Mr Likiliki slapping the victim forcefully five times on the face, with a minute or so gap between each slap. The victim lost consciousness for about ten seconds after the fifth slap. Mr Likiliki then pushed her down the apartment stairs. It was however submitted that this happened because the victim had blocked him when he was trying to leave, by holding on to his bag and clothes. The inference from this is that the push was a response to the situation, but the consequence was not deliberately intended or necessarily the reason for the push.

[9]    The victim suffered bruising to both sides of her face, a bloodshot left eye and blurred vision in her right eye. Photographs record this.

[10]   The pre-sentence report provides more detail about the offending from Mr Likiliki’s perspective. He said he arrived home after training to find the victim waiting for him. She questioned where he had been, and he responded by asking her to leave. An argument developed when the victim refused. It escalated inside the residence and the assault occurred. After the victim fell down the stairs, Mr Likiliki said he went to help her, and both then went to bed. He said he was woken by the victim in the early hours of the morning to say she was leaving. He told the report writer that he then went about his usual routine and dismissed what had happened, although he said it confirmed to him why he had previously terminated the relationship.

[11]   In her victim impact statement, the day after the assault, the victim said she had been fearful of Mr Likiliki during their relationship and referred to other occasions when she said she had been hurt by him. She said she thought he had anger issues which he took out on her. She said she did not want to be in a relationship with him anymore.

[12]   Mr Likiliki initially entered a not guilty plea to the charge. Shortly after he was charged, he was stood down from his football club when it became aware of his offending. Mr Likiliki then moved back to Auckland to live with his parents. He started counselling very shortly after this and on 16 May 2022 he then changed his plea to one of guilty.

[13]   A restorative justice meeting was held between the two Tongan families on 23 July 2022. It was attended by Mr Likiliki, the victim and both their fathers. It is apparent from the notes of the meeting that this process was meaningful to all participants. Mr Likiliki apologised for the hurt he had caused to the victim and her family, and his father also offered an apology to the victim’s family. The apologies were accepted by the victim and her father, who were pleased that Mr Likiliki had accepted responsibility for the hurt he had caused and that he had sought help through counselling. The victim acknowledged Mr Likiliki’s talents and said she did not think jail would help him, offering no additional views on sentencing.

[14]   Mr Likiliki has one previous conviction of driving with excess breath alcohol for offending on 29 December 2019 which occurred 10 days after his 20th birthday. He received a fine and was disqualified from driving for six months.

[15]   At sentencing, as well as the usual material, the Judge was provided with a s 27 Sentencing Act 2002 cultural report (s 27 report), various references, a pre-sentence report and an affidavit from Mr Laurent an immigration lawyer.

[16]   The pre-sentence report writer noted that Mr Likiliki had expressed a high level of remorse for his actions and recommended a sentence of supervision with a special condition to attend a living without violence programme, noting that Mr Likiliki was already attending and privately funding intimacy/relationship counselling.

[17]   The s 27 report provided helpful material about Mr Likiliki’s upbringing in Tonga. Information was obtained from Mr Likiliki as well as from him parents. His parents were young parents who had experienced some success themselves before having a family. Before children, they described their relationship as dysfunctional, involving alcohol, parties and arguments. After Mr Likiliki was born, they lived with his father’s family, but his father’s alcohol consumption did not abate and there were fights. Mr Likiliki and his mother were ostracised by the family, with Mr Likiliki being a particular target of abuse. Mr Likiliki’s mother was physically abused on occasion.

[18]   Money was a problem. However, Mr Likiliki’s parents recognised that education was the future hope for their children and, to their credit, they decided to try to work through their personal problems for the sake of their children. A decision was made for the father to travel to Australia to work as a seasonal fruit picker and they registered for the Pacific Access Category Resident Visa programme to come to New Zealand. However, due to lack of money, the family had no choice but to remain living with the father’s family.

[19]   The abuse by the father’s family towards Mr Likiliki’s mother, Mr Likiliki and the other children of the couple continued. According to his mother, the children were treated like slaves, being made to do everything by everyone. They were verbally abused daily. Mr Likiliki felt as if he was blamed for everything, including things for which he was not responsible, a position confirmed to the s 27 report writer by his parents, who said that, despite this, Mr Likiliki did not retaliate either verbally or in any other way.

[20]   The only people Mr Likiliki considered were kind to him, were two older male cousins. They supported him, defended him against other family members and encouraged him to play football. Tragically both cousins committed suicide, one in 2017 and the other in 2018. Mr Likiliki’s parents were very worried about him and how he reacted to these events - justifiably so because of what I have read in the report.

[21]   Against this background and fortunately, his parents were successful in the ballot under the visa scheme referred to above. However, arriving in New Zealand, the family lived with other extended family members, in very crowded circumstances in South Auckland. The family of seven all lived in one room until some months later when they were provided with a Kāinga Ora home.

[22]   Since then, Mr Likiliki’s mother has trained as a healthcare worker. She works six days a week and is the income earner for the family, while his father takes care of the younger children and domestic duties.

[23]   Despite their constrained financial situation, Mr Likiliki’s parents organised for his mother to travel to Christchurch to make a cultural apology to the victim’s

family, which the victim’s family agreed to. However, upon arriving in Christchurch, the victim’s family decided not to meet with her, contrary to their earlier stance. Since then, an apology has been given via the restorative justice process described above.

[24]   The Judge referred to the nature of the charge, the maximum penalty provided by law and what occurred. He found the five slaps to the head/ face area with a minute in between each and a temporary loss of consciousness to be significant because they were “considered applications of force” rather than “a simple spontaneous loss of control”.7 The push down the stairs was also serious because it followed the slaps and, as he noted, such an action could result in death.8

[25]   The Judge treated Mr Likiliki as a first-time offender because his previous conviction was not for violent offending. He also referred to Mr Likiliki’s age, his previous good character and remorse – “to a degree”;9 the latter because text messages sent shortly after the event did not reflect remorse. However overall, Mr Likiliki’s remorse for the offending was accepted by the Judge as genuine. The Judge also referred to his attendance at the restorative justice conference, his plea of guilty, the fact he had undertaken counselling and his willingness to pay reparation even though he was a student without immediate access to funds. With reference to the s 27 report, the Judge accepted Mr Likiliki’s background may have normalised, and I infer role- modelled, dysfunctional and violent relationships. All these he considered were mitigating factors to be considered when assessing the gravity of the offending.

[26]   The Judge found the offending to be at the “top end of moderately serious” but downgraded this assessment to the “bottom end of moderate offending” after factoring in the above mitigating considerations.

[27]I agree with the Judge’s characterisation of the gravity of the offending.

7      Likiliki, above n 1, at [16]

8      At [17]

9      At [20]

Consequences of conviction

[28]   The consequences of conviction advanced by counsel for Mr Likiliki in the District Court were the impact a conviction might have on his football career, his aviation career and the impact it would have on his immigration status as a resident.

[29]   Mr Likiliki’s standdown from his football club was not considered to be a factor of “any real significance” by the Judge.10 The Judge also noted that a conviction would not be determinative for the purposes of the Civil Aviation Authority’s assessment as to whether Mr Likiliki is a fit and proper person in relation to their standards. I agree with this assessment. However, after referring to Mr Laurent’s affidavit, the Judge accepted there was a greater than real and appreciable risk that Mr Likiliki would be deported to Tonga if convicted.

[30]   The Judge noted the variance in the higher courts’ decisions about how immigration issues should be treated in an application for a discharge without conviction. He referred to Zhang v Ministry of Economic Development, where Asher J said, while there is “nothing that requires the courts to intervene to try and impose their perception of what the right immigration consequences should be”, a court’s assessment of culpability 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”.11

[31]   The Judge also referred to the approach taken in Singh v R, where the Court found that the application for discharge should be granted because not only was there a real and appreciable risk of deportation but, even if it was avoided, Mr Singh’s family would be subjected to protracted stress, uncertainty, and financial burden.12

[32]   Ultimately, the Judge did not consider that the possibility of deportation was out of all proportion to the gravity of the offending and determined that the immigration authorities were the appropriate bodies to resolve the issue rather than the

10     Likiliki, above n 1, at [29].

11     At [36] citing Zhang v Ministry of Economic Development HC Auckland, 17/3/2011, CRI-2020- 404-453.

12     Singh v R [2020] NZHC 491.

courts. The impact a conviction will have on Mr Likiliki’s immigration status was outlined in Mr Laurent’s affidavit. This was before the District Court Judge, but not referred to in any depth by him in his Judgment. Mr Likiliki was convicted and ordered to pay $1,500 to the victim as emotional harm reparation.

Immigration status

[33]   Mr Laurent has specialised in the practice of immigration law for several decades and has provided an expert opinion by way of affidavit for a number of similar applications, mostly in the District Court, but his evidence was cited with approval in Rahim v R, referred to below at [55].13

[34]   Mr Laurent outlined that Mr Likiliki obtained residence on 5 August 2019 under the Pacific Access Category. He noted that Mr Likiliki was included in his family’s application as the eldest of five children.

[35]   Mr Laurent’s affidavit addresses Mr Likiliki’s liability for deportation as a resident, his chances of success in suspending or cancelling deportation liability and his chances of success in an appeal against deportation.

[36]   Mr Laurent explained that Mr Likiliki’s liability for deportation arises because he has two offences that engage s 161(1) of the Immigration Act 2009. This section provides:

161 Deportation liability of residence class visa holder convicted of criminal offence

(1)   A residence class visa holder is liable for deportation if he or she is convicted, in New Zealand or elsewhere,—

(a)of an offence for which the court has the power to impose imprisonment for a term of 3 months or more if the offence was committed at any time—

(i)when the person was unlawfully in New Zealand; or

(ii)when the person held a temporary entry class visa; or

(iii)not later than 2 years after the person first held a residence class visa; or

13     Rahim v R [2018] NZCA 182 at [25]-[30].

(b)of an offence for which the court has the power to impose imprisonment for a term of 2 years or more, if the offence was committed not later than 5 years after the person first held a residence class visa; …

[37]   Mr Laurent explained that Mr Likiliki’s liability arises because his prior drink driving offence was committed within two years of the initial grant of residence (s 161(1)(a)(iii)) and because his current offending involves an offence which carries a maximum penalty of more than two years’ imprisonment and was committed within the five years of the grant of residence (s 161(1)(b)).

[38]   Mr Laurent further explained that the trigger point is the date of commission of the offence, not the date of conviction or sentencing and that liability for deportation is activated automatically if a person is convicted of an offence for which the Court has the power to impose imprisonment for three months or two years or more respectively.

[39]   Further, he outlined that, under s 167(1) of the Act, once the fact of conviction is established, residence class visa holders remain liable for deportation for a period of 10 years following the conviction.

[40]   In Mr Laurent’s opinion, a conviction for Mr Likiliki will almost inevitably result in deportation action of some kind because of the information sharing system established between Immigration New Zealand and the Police. Having said that, Mr Laurent explained that it would be difficult to predict when the process of deportation would be actioned by Immigration New Zealand. But, in his opinion, the commission of an offence involving violence would be more likely to attract its attention so, in his view, compliance action is certain to occur eventually.

[41]   Next, Mr Laurent outlined the manner in which Immigration New Zealand actions a prospective deportation. Currently, prior to serving a deportation liability notice, Immigration New Zealand notifies a potential deportee of their liability, invites a response on the papers setting out reasons why the person should not be deported and determines thereafter whether to either:

(a)        cancel liability altogether; or

(b)       serve a deportation liability notice but simultaneously suspend liability for a period (often two to five years) on the condition that the person does not offend in any other way; or

(c)        serve a deportation liability notice outright.

[42]   Mr Laurent’s experience is that the suspension of deportation liability can usually be secured for someone with a drink driving offence which means that, at the end of the suspension period and upon application, deportation liability is cancelled entirely, as long as the person concerned has maintained a clear criminal record in the meantime. However, he said the same approach did not apply for violence offences. While acknowledging that his firm had secured a two-year suspension for a client convicted of threatening to kill in the context of a strong family nexus to New Zealand including children, there was another situation where a client convicted of common assault and commission of an indecent act, despite having lived in New Zealand for well over a decade, was issued with a deportation liability notice.

[43]   Although acknowledging there would be some factors that would weigh in his favour, including the fact Mr Likiliki’s entire family have settled in New Zealand, the nature of the offending and the fact he has only lived here for about three years would count against him. In Mr Laurent’s opinion, it would be more likely than not that Mr Likiliki would fail to get a suspension of deportation liability if convicted. On the other hand, if he was discharged without conviction, Mr Laurent was confident that he could get deportation liability suspended and ultimately cancelled if he did not reoffend.

[44]   Once a deportation liability notice is served, Mr Likiliki would have a right of appeal on humanitarian grounds under s 206 of the Act to the Immigration and Protection Tribunal. Mr Laurent explained that the test that would be applied to Mr Likiliki under s 207 of the Act, whether he can exhibit “exceptional humanitarian circumstances” that would make it unjust or unduly harsh for him to be deported. Mr Laurent’s opinion was that Mr Likiliki’s circumstances would be highly unlikely to be viewed as exceptional. As well, Mr Laurent’s opinion was that requiring him to return to Tonga would not be seen as unduly harsh because his family could visit him. Mr

Laurent conceded that the second part of the test on appeal, namely, whether it would not be contrary to the public interest to allow Mr Likiliki to remain in New Zealand, would likely be met by him.

[45]   In summary, Mr Laurent considered Mr Likiliki’s chances of success on appeal would be low.

Additional information provided on appeal

[46]   Prior to the hearing, Mr Likiliki’s mother sought to file a further affidavit. There was no opposition to the affidavit being submitted and leave was granted for it to be admitted as evidence on the appeal.

[47]   Mrs Likiliki’s affidavit confirmed that, since the family left Tonga, their lives have changed for the better. She referred to the hours she works as a caregiver and her husband’s significant role in caring for the family at home. She and her husband’s goal of securing a better education for their children is evident in the academic results currently achieved by their children.

[48]   Mrs Likiliki explained how she and her husband responded when they became aware of their son’s offending. Their response was immediate, responsible and caring, both in respect of their son and the victim. She referred to the efforts she and her husband had made to travel to Christchurch to convey a traditional Tongan apology to the victim’s family which, according to their culture, was the right thing to do, despite the fact they have limited finances and Mrs Likiliki needed to take time off work. She respectfully accepted the victim’s family’s decision not to meet, even though they had originally said that they would.

[49]   Mrs Likiliki described this time as the most difficult for her and her family. The offending was reported internationally in the Australian, New Zealand and Tongan media and the family was shunned by their own family as well as the small Tongan community of friends of family that they had made connections within their short time in New Zealand.

[50]   She also described the impact this had on her son, which was profound. She described him not eating or sleeping properly in the months that followed his offending. Since he has lived with the family in Auckland and over the past year, Mrs Likiliki referred to a gradual and positive change in his and the family’s lives. He continues to attend counselling with her husband, he is continuing with his pilot studies and has begun playing football again.

[51]   Mrs Likiliki’s concern, if her son was deported, would be that he would be living alone and without support in Tonga. It would also mean he would not have access to professional counselling help he needs.

Submissions

Appellant’s submissions

[52]   Ms Beaven submitted the tangible consequences of immigration were not considered by the Judge, which is at odds with Sok v R, where the Court of Appeal held:14

The cases sometimes caution against “usurping” or “pre-empting” immigration powers. It is strictly inaccurate to speak of a discharge usurping the authority of officials or the Minister or the Tribunal; the Court is exercising its own jurisdiction under s 106 of the Sentencing Act, and that is so even in cases where an offender is not liable to deportation unless a conviction is entered. It is more accurate to say that legislative policy decisions and statutory powers and processes may not only establish consequences for an offender but also determine whether those consequences are the product of a conviction and influence the proportionality assessment.

[53]   Ms Beaven also submitted that the case law establishes that exposure to deportation liability and the immigration authority’s deportation process may be a consequence in itself.15 With reference to Sok, she submitted a key distinction is that the appellant in that case had a temporary and not a residency visa, meaning his residence was put in jeopardy at the time of the offending and not at the time the conviction was entered, so that a discharge without conviction would not prevent or reduce the risk of immigration consequences.16 Ms Beaven submitted that, because

14     Sok v R [2021] NZCA 252 at [50].

15     At [51], also see Singh v R, above n 12.

16     Sok, above n 14, at [72].

the appellant holds a residents visa, the consequence of conviction triggers the immigration response in such a way that the Court could apply the s 106 proportionality test, without usurping the authority of immigration officials. She compared this to the situation where a defendant holds a temporary visa when the offending itself triggers the immigration consequences, in which case she submitted immigration officials may decide outcomes and be guided by the Court’s assessment of the seriousness of the offending.

[54]   The gravity of Mr Likiliki’s offending was held by the Judge to be at the bottom end of moderate therefore, Ms Beaven submitted, any consequences that are greater than moderate arising from the conviction should be amended by this Court.

[55]   As well, Ms Beaven referred to Rahim v R where the likelihood that the appellant would have to return to Pakistan, with or without his family, as a consequence of his conviction, was held by the Court to be out of all proportion to the offending.17 Like the appellant in this case, she submitted that, because Mr Likiliki holds a residents visa, it is the entry of a conviction that will open him up to this risk.

[56]    I further note the Court in Rahim made extensive reference to Mr Laurent’s expert witness affidavit in that case stating:18

[E]xpert opinion establishes that the real and appreciable risk is significantly higher than the mere prospect of deportation; it is that, after Mr Rahim has undergone all of the statutory processes, a conviction is likely to result in his being required to leave New Zealand.

[57]   The Court opined that it is not always helpful to pace the consequences on a scale of seriousness. Once they are identified, the question is simply whether they are out of all proportion with the gravity of the offending. Mr Laurent’s evidence in this case suggests severe consequences for Mr Likiliki.

[58]   With reference to Truong v R19 and Bolea v R,20 where the Court of Appeal assessed deportation safeguards and the statutory processes associated with entry of a

17     Rahim v R, above n 13.

18     Rahim, above n 13, at [30].

19     Truong v R [2023] NZCA 97.

20     Bolea v R [2023] NZCA 39 at [44].

conviction as being appropriately left to the Minister, Ms Beaven submitted that Mr Likiliki’s case is distinguishable because he is already subject to deportation liability. She submitted this increased hardship must be accounted for by the Court.

[59]   If deported at 22 years of age, she submitted Mr Likiliki would be separated from his family, suffer the loss of employment and have his career as a pilot effectively halted, the emotional, financial, and familial consequences of which cannot be quantified. Ms Beaven submitted that these are severe consequences which are out of all proportion to the gravity of the offending.

Respondent’s submissions

[60]   Mr Alloway for the Crown submitted that the Judge was correct in his assessment of the gravity of the offending, consequences of conviction and his view of proportionality.

[61]   The Judge was correct to see the offending as serious, considering it took place in the victim’s home, resulted in her being rendered unconscious and the push down the stairs carried with it the inherent risk of serious injury. Mr Alloway referred to Rewita v Police, where a charge of assault with intent to injure resulted in a starting point of 18 months’ imprisonment was upheld by the High Court on appeal.21 By way of comparison in this case, he submitted that the defendant held the victim down, slapped her and then subjected her to an unspecified number of punches and kicks. Mr Alloway submitted that the push down the stairs in this case made the offending even more serious.

[62]   The Crown accepts that the gravity of the offending was reduced by Mr Likiliki’s guilty plea, his participation in restorative justice, the matters referred to in the s 27 report and his youth, but Mr Alloway submitted that any reduction for remorse must be tempered by the fact it was expressed after the charge was laid. He submitted that Mr Likiliki downplayed the seriousness of the offending to the pre-sentence report writer and was apathetic towards the victim after the offending.

21     Rewita v Police [2013] NZHC 2175.

[63]   Mr Alloway referred to the following passage from Bolea v R, which he submitted summarised the correct approach to immigration related consequences:22

a.     The decision in Zhu does not assert the absolute proposition that liability to deportation or the risk of actual deportation can never be an operative consequence justifying a discharge without conviction. The decision in fact expressly acknowledges that it can be an operative consequence on the basis of ‘but for’ causation reasoning. At the same time the decision also notes that in other cases it will not justify discharge.

b.     The latter category is identified as including cases where the Court is satisfied that immigration decision makers will consider the circumstances that are said to justify a discharge, including the gravity of the offending (in relation to which the decision maker has the benefit of the sentencing court's assessment) and the offender's personal circumstances. In those sorts of cases, the courts ‘usually’ reason that the outcome is a consequence of the offending, rather than the conviction.

c.     Although this approach is sometimes justified in the case law on the basis of institutional competence and comity, strictly speaking it is inaccurate to speak of a discharge without conviction usurping the authority of officials or the Minister or the Tribunal. The court is exercising its own jurisdiction under s 106 of the Sentencing Act and that is so even in cases where an offender is not liable to deportation unless a conviction is entered.

d.     There are cases where the courts have held that the mere exposure to the risk of deportation and the associated processes is in itself a wholly disproportionate response without needing to draw a distinction between liability to deportation and the risk that a person will ultimately be deported. Such cases involve offending that was not intrinsically serious or which was not a serious example of its kind and in which there were substantial mitigating factors.

e.     There is another category of case where discharges have been granted on the basis that deportation is a consequence of conviction because it is considered the immigration authorities will not look beyond the fact of the conviction and so fail to consider the circumstances of the offending.

[64]   Because of Mr Likiliki’s 2019 conviction, Mr Alloway submitted Mr Likiliki is already liable for deportation, therefore, the risk of deportation is not a consequence of this conviction. In any event, he submitted the prospect of deportation is only a disproportionate consequence in cases where offending is not intrinsically serious, unlike the present case. As I will explain below at [81], I do not read Bolea in the same way.

22     Bolea, above n 20, the Crown has paraphrased [41] of the judgment.

[65]   Mr Alloway also submitted that the argument raised by Mr Laurent in his affidavit is hypothetical because it focusses on Mr Likiliki’s ability to suspend and cancel his liability to be deported once served with a notice. As Mr Likiliki has not yet been served with a notice, Mr Alloway submitted Mr Likiliki will have an opportunity in the pre-deportation liability notice process to provide written reasons as to why his liability should be suspended or cancelled. Thus, Mr Alloway submitted, this is a case where immigration officials will also consider the circumstances that are said to justify a discharge, including the gravity of the offending and the offender’s personal circumstances, and so Mr Likiliki’s situation falls into the category of cases that do not justify a discharge as set out in Bolea.

[66]   Mr Alloway submitted that at its highest, the consequence of conviction is that there is a real risk it will be more difficult to suspend liability for deportation, should the immigration authorities take that step. However, because the authorities will consider the full circumstances of the offending rather than the conviction itself, the consequence will result from the offending as opposed to simply the conviction.

[67]   Finally, Mr Alloway highlighted that discharges without conviction are typically considered in relation to first time offenders who have committed a minor crime, rather than offenders with short histories of various minor charges.23 He submitted that Mr Likiliki’s previous conviction has partially born out the consequences relied on in the present case in casting doubt on his career as a pilot and possibly triggering a deportation process.

[68]   Overall, Mr Alloway submitted that the direct and indirect consequences are not out of all proportion to the gravity of the offending.

Assessment: immigration consequences

[69]   Consequences of conviction are often left to immigration authorities.24 This is especially so where the outcomes are difficult to predict and depend on the offending rather than the fact of conviction.25

23     Hudson v Police [2012] NZHC 2769.

24     Singh, above n 12, at [14].

25     Rahim v R, above n 13, at [29] and [31].

[70]   In this case however, Ms Beaven is correct that the trigger is the conviction not the offending because Mr Likiliki holds a resident visa. However, Mr Alloway is also correct because Mr Likiliki’s liability for deportation has in fact already been triggered because of his previous conviction for drink driving. None of the cases I was referred to have dealt with this particular scenario.

[71]   The question for me is whether Mr Alloway’s point about the trigger for deportation already having occurred somehow impacts on the assessment required in this case. In this regard, Mr Laurent’s evidence is critical.

[72]   Mr Laurent’s expert opinion was that, should the conviction remain, Mr Likiliki would likely fail the pre-deportation liability notice stage. His chances of an appeal on humanitarian grounds are low and he would have to leave New Zealand. The Crown alternatively submits the risk of deportation is speculative, but do not agree given that there is unchallenged expert evidence available to properly assess the risk of that eventuality.

[73]   Mr Likiliki is liable for deportation because of the 2019 offending and conviction for the present charges would accelerate the deportation process. Should he not be convicted on this charge, and the drink driving conviction was his only relevant offence, Mr Laurent is confident Mr Likiliki’s liability would be suspended for two years and then cancelled.

[74]   I have considered Mr Laurent’s evidence and rely on it in my conclusions. I reject the Crown’s argument that, because Mr Likiliki’s 2019 conviction already makes him liable for deportation, it cannot be considered a consequence of conviction arising from the current offending. For all practical purposes, conviction on these charges also triggers his liability for deportation and further would expedite and worsen the prospect of it for Mr Likiliki.

[75]   Judge Zohrab did not refer in any great detail to Mr Laurent’s expert opinion. There was no detailed assessment of the significance of Mr Likiliki’s visa status and the impact that might have on the deportation process, bearing in mind that some of the relevant authorities deal with situations where temporary visas rather than resident

visas  were  relevant  to that assessment.    In making this observation, I intend no criticism of the Judge who would have been dealing with this matter in a busy list.

[76]   As well, the Judge did not refer in any significant detail to how the risk of deportation would impact on this young man, taking into account the background referred to in the s 27 report and the risks for him to be returned to a potentially abusive family situation, without the support and protection of his parents. No doubt, this did not occur because of the Judge’s initial view that these matters were more appropriately dealt with by the immigration authorities.

Case law

[77]   Engaging in case comparisons is of somewhat limited value in cases, such as this one, where so much depends on the facts. Nonetheless, I have been referred to several cases by counsel and note points from the following cases that fortify my conclusion.

[78]   Mr Alloway cites Hudson v Police in which Duffy J stated that discharge without convictions are:26

… usually applied to offenders with no criminal history who have committed a minor crime, rather than to offenders who have a short history of committing various minor charges.

[79]   The use of the word “usually” conveys the variance in these cases. In Singh v R, the defendant was charged with male assaults female and assault with intent to injure, assessed by the Judge as low to moderate level offending.27 The offending there would not be considered minor in the way a breath alcohol infringement might be. Section 106 cases involving immigration concerns are highly fact specific and involve an exercise of discretion by the presiding Judge. Whilst Duffy J was, with respect, correct that s 106 cases are usually granted for minor offending, there will be and have been cases in which slightly higher-level offending has warranted a discharge when regard is had to all relevant circumstances.

26     Hudson, above n 23, at [37].

27     Singh v R, above n 12, at [33].

[80]   I note that in Rewita, referred to the Court by Mr Alloway, Panckhurst J deemed the defendant to be a “mature man who ha[d] an unenviable list of previous convictions”, such as breach of protection order and a “nasty assault and burglary of his partner’s house”.28 The contention that the assault in this case, that involved a further breach of a protection order, was more serious is debatable. Mr Likiliki has no history of violent offending and no protection order was in place. The like for like comparison between cases is not always of great use, but I emphasise the above to note that Rewita need not have any wide influence on this Court’s decision.

[81]   I refer to Bolea v R, in particular, to [41(d)] cited above at [63]. I do not find in favour of Mr Alloway’s submission that liability for deportation will only be a disproportionate consequence where the offending is not intrinsically serious. The Court in Bolea noted that the mere exposure to the deportation process has been viewed as, in cases of minor offending, a consequence out of all proportion to the offending. Though Mr Likiliki’s offending cannot be considered minor, it has been assessed not far from that as at the lower end of moderate. Mr Laurent’s evidence suggests consequences that are severe. I accept Ms Beaven’s contention that higher level offending can still be outweighed by the consequences if they are deemed to be severe; it is the balancing exercise that is crucial. I do not find the consequences that await Mr Likiliki, should a conviction be entered, to be in any way proportionate to his offending.

[82]   In refusing a discharge without conviction, the Court stated the case before it was not a case where there was any reason to believe the immigration authorities would not look beyond the defendant’s convictions and consider her personal circumstances and mitigating factors.29 That too was a case where the liability for deportation rested on conviction.

[83]   Though a discharge was not granted in Bolea, I note the charge in that case carried a penalty of ten years’ imprisonment30 as opposed to Mr Likiliki’s which carries a sentence of a maximum of three years’ imprisonment. The variance in

28     Rewita, above n 21, at [13].

29     Bolea, above n 20, at [43].

30     The single charge faced by the defendant in Bolea was under s 98A of the Crimes Act.

seriousness of offending, as well as the above noted circumstances of Mr Likiliki distinguish this case.

[84]   Furthermore, the Court in that case was only in receipt of expert evidence as to the defendant’s chances of being served a deportation liability notice. The expert evidence in that case did not address prospects of the defendant’s success on appeal to the Tribunal.31 By contrast, this Court has been provided with fulsome submissions by Mr Laurent to that point. Finally, I accept Ms Beaven’s submission that Bolea and Truong are distinguished on the basis that Mr Likiliki is already subject to deportation liability for his previous charge. I take care to note Mr Likiliki is not being awarded  a boon for his previous offending. However, the increased risk of deportation presented by this charge must be accounted for. It serves as a further ground to distinguish this case from others.

[85]   Having received full submissions and having had the luxury of more time to consider all these matters, I am persuaded that the immigration consequences, namely the risk of deportation, for Mr Likiliki is virtually inevitable. It is appropriate, in my view, for these matters to be considered by this Court on the facts of this case rather than being left to the immigration authorities.

The balancing exercise and result

[86]   I am persuaded, when all of the matters I have referred to are taken into account, the deportation consequence of a conviction for Mr Likiliki is out of all proportion to the gravity of his offending. For these reasons and in my assessment, Mr Likiliki ought to have been discharged without conviction.

[87]   Given that the Court, on appeal, is required to consider the matter afresh, my conclusion means that the appeal will be allowed. The conviction is therefore quashed. The appellant is discharged without conviction under s 106 of the Sentencing Act 2002.

31     Bolea v R, above n 20, at [18].

[88]   Pursuant to s 106(3)(b)(ii) of the Sentencing Act 2002, I confirm the District Court’s order, under s 32(a)(b), for the payment of $1,500 emotional harm reparation to the victim.

Harland J

Solicitors:

Public Defence Service, Christchurch

Crown Solicitor’s Office/Raymond Donnelly & Co., Christchurch.