Mani v Police
[2019] NZHC 3440
•19 December 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-404-000395
[2019] NZHC 3440
BETWEEN RITESH MANI
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 17 December 2019 Appearances:
J Harder for Appellant
M Beattie for Respondent
Judgment:
19 December 2019
JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie On 19 December 2019 at 12.30 pm
Registrar/Deputy Registrar Date:…………………………
Solicitors/counsel:
J Harder, Auckland
Crown Solicitors, Manukau
MANI v NEW ZEALAND POLICE [2019] NZHC 3440 [19 December 2019]
Introduction
[1] On 20 July 2018, the appellant, Mr Mani, pleaded guilty to four charges of breaching a protection order in favour of his former wife. He applied to be discharged without conviction and the application came before Judge Harvey in the District Court at Manukau on 18 July 2019. The Judge declined the application.1
[2] Mr Mani now appeals Judge Harvey’s decision. He argues that the Judge erred by:
(a)overstating the gravity of the offending, in particular by mischaracterising the circumstances surrounding the breaches;
(b)not considering Mr Mani’s custodial remand, compliance with bail, early guilty pleas and completion of anger management counselling; and
(c)not concluding that the direct and indirect consequences of the convictions would be out of all proportion to the gravity of the offending.
It was argued that Mr Mani should be discharged without conviction.
[3] The police oppose the appeal, arguing that the Judge did not err, and that the appeal should be dismissed.
Background
[4] Mr Mani was born in Fiji and he is a citizen of that country. He came to this country in 2008 after he obtained a temporary work visa as a heavy machine operator. He has obtained successive work visas. His most recent work visa expired in August 2019.
1 Police v Mani [2019] NZDC 14064.
[5] Mr Mani and the victim married in Fiji in 2010. They then came to New Zealand to live together. The marriage lasted for approximately seven years and they had one child together. They separated in August 2017.
[6] Mr Mani accepts that he and the victim had some disagreements during the course of the marriage, and that, on one occasion in 2011, he assaulted her. He was charged with common assault, convicted and required to come up for sentence if called upon over the ensuing six-month period commencing 28 October 2011.
[7] This conviction was in breach of Mr Mani’s then temporary work visa. Initially, a deportation liability notice was served on him but it was subsequently cancelled, because he had declared this conviction (and another for drink driving) prior to the then current work visa being issued.
[8]Mr Mani and the victim reconciled and they bought a house together in 2015.
[9] In 2017, the relationship began to deteriorate. Mr Mani says that he became frustrated on occasion and that he and the victim had a number of heated arguments. Matters came to a head when Mr Mani revoked the support he had been giving to the victim to enable her to obtain a visa to remain in New Zealand. The couple had a number of further arguments thereafter and, according to Mr Mani, the complainant went on to allege that he had been threatening towards her. Mr Mani says that he did his best to keep things amicable, because the victim was due to have the couple’s child, and because they owned a house together. Mr Mani says that he did not want to give up on the relationship.
[10] Unfortunately, the couple were unable to resolve their issues and the victim applied for a protection order against Mr Mani, approximately a month before the couple’s child was born.
[11] On 3 August 2017, the Manukau District Court issued a temporary protection order against Mr Mani. The protection order was issued as a final order on 4 November 2017, again by the Manukau District Court.
[12] Mr Mani breached the protection order on 23 October 2017, 29 October 2017 and 1 November 2017.
(a)On the first occasion, Mr Mani phoned the victim on her mobile phone. When she heard Mr Mani’s voice, she hung up on him.
(b)On the second occasion, Mr Mani again phoned the victim on her mobile phone and she again hung up.
(c)On the third occasion, Mr Mani phoned the victim, stating that he wanted her to come back to him, and asking if she was going to sell the house. The victim told Mr Mani that she would not be returning to him and told him to stop calling her. Mr Mani persisted and the victim ended the call.
All of the calls were at night, broadly, between 10.00 and 11.00 pm.
[13] When he was spoken to by the police, Mr Mani denied making any of the calls to the victim. He subsequently entered a not guilty plea to the resulting charges and elected trial by jury.
[14] In a victim impact statement prepared at the time, the victim asserted that Mr Mani’s behaviour was “very scary” and that he is “a dangerous man”.
[15] Mr Mani appeared in relation to these breaches on 13 November 2017. Initially, he was remanded in custody before being released on bail by Judge Hikaka on 21 December 2017.2 The Judge noted that there was a concern for the victim’s safety and that she had been communicating with the police. She was noted as being concerned at the prospect of Mr Mani being granted bail, but derived some comfort because the bail address was some distance from her residence. The Judge imposed a condition that Mr Mani was not to go to the area where the victim resided or associate with her. He reinforced to Mr Mani the need to comply strictly with the terms of his bail.
2 Police v Mani [2017] NZDC 29297.
[16] Mr Mani was next before the Court on 15 February 2018. Mr Mani had applied to vary his bail. He wanted to be bailed to an address close to the home which he and the victim own together, and where she was living. It was argued on his behalf that the victim had made a number of exaggerated complaints against him over a lengthy period of time, both to Immigration New Zealand and to the police. Judge Hikaka noted that the victim had been contacted about the proposed variation, and she that had reiterated her “serious concerns about [Mr Mani] moving back into the … area, and the very short distance between the proposed bail and [her] address”.3 The Judge declined to vary the bail address.
[17] The fourth breach of the protection order occurred on 30 March 2018 while Mr Mani was on bail. According to the summary of facts,4 the victim arrived home at about 9.00 pm. Mr Mani had arrived at and gone into the house earlier. While the victim was on the phone to her sister, Mr Mani came out from one of the bedrooms. The victim told him numerous times to leave the house, but he ignored her. A verbal argument ensued. Mr Mani eventually left the address about an hour later. The victim promptly contacted the police. When he was spoken to, Mr Mani said that he had never been at the victim’s house, and that he had been at his own address at the time.
[18] This offending was not only in breach of the protection order but also in breach of the conditions attaching to Mr Mani’s bail.
[19] In a victim impact statement prepared at the time, the victim accepted that she did not receive any physical injuries. She nevertheless said that she was afraid and that she had concerns for her own safety and that of her son.
[20] Mr Mani appeared in relation to the fourth breach on 2 April 2018. He was initially remanded in custody for a short time, but was subsequently released on bail.
3 Police v Mani [2018] NZDC 2777 at [5].
4 Mr Mani offers a different version of events in an affidavit he swore in support of his application for discharge without conviction on 1 June 2019. I do not attach any weight to this latest version of events. It is self-serving and exculpatory. It is inconsistent with the summary of facts to which Mr Mani pleaded guilty.
[21] On 20 July 2018, Mr Mani changed his pleas, and entered guilty pleas to each of the four charges. There were originally six charges. Two were dropped. One of the remaining charges was amended to record that Mr Mani had remained on land occupied by the victim as a protected person, notwithstanding that she had asked him to leave (rather than that he entered the land as originally charged). No convictions were entered at this point, to allow Mr Mani the opportunity to pursue discharges without conviction.
[22] Mr Mani was granted bail afresh. It appears from the District Court file that there was a further breach of bail appearance on 13 September 2018. According to the file, Mr Mani thought that the terms of his bail had been varied when the Family Court allowed him to have supervised contact with his child. He apparently considered that thereafter it was acceptable for him to make contact with the victim. The breach was nevertheless accepted.
[23] Mr Mani’s applied for discharges without conviction and a hearing was scheduled for 10 June 2019. Submissions for both Mr Mani and the police and an affidavit from Mr Mani were filed in advance. However, the hearing was adjourned as Mr Mani (without seeking leave from the Court to depart from New Zealand) had returned to Fiji, due to a family bereavement. No warrant to arrest was issued however. Rather, the hearing of the application was adjourned to 18 July 2018.
[24] As noted, the application was heard on that date by Judge Harvey. The application was heard in Mr Mani’s absence because, on 30 June 2019, Immigration New Zealand had declined to issue him with a visa permitting him to return to New Zealand.
[25] Mr Mani is still in Fiji. He seeks discharges without conviction, because he believes that this will make it easier for him to obtain a visa, permitting him to return to this country. He is anxious to return, so that he can see his son, so that he can finalise arrangements for the sale of the former matrimonial home with the victim, and so that he can pursue his long-term goal of securing a resident’s visa.
District Court decision
[26] Judge Harvey started his decision by recording the factual allegations. He recorded his view that the incident which occurred on 30 March 2018 was more sinister than the earlier breaches, noting that the victim had arrived at her home at about 9.00 pm and that Mr Mani had earlier arrived at the house. The Judge noted that the victim did not know Mr Mani was there, and that when he came out of one of the bedrooms, he ignored her requests that he should leave. The Judge noted the concern expressed by Mr Mani regarding his immigration status in New Zealand, and that his status could well be prejudiced by any convictions. The Judge expressed the view that “it did not require a conviction for that fact to become a reality”,5 but nevertheless recorded the submission made for Mr Mani to the effect that if he were granted discharges without conviction, he could return to New Zealand and attempt to regularise his immigration status.
[27] The Judge went on to record that he was required to consider the application for discharges without conviction, noting that he had to start at the beginning, assess the gravity of the offences, look at the consequences of the convictions and then consider whether or not they were disproportionate.
[28] The Judge observed that the offending was persistent, in breach of the protection order, and that it involved calls late at night. He referred again to the incident of 30 March 2018. He expressed the view that Mr Mani’s behaviour demonstrated ongoing and controlling behaviour. He observed that the protection of family violence victims has assumed significantly greater importance in recent times and that family violence is “a blot upon this country’s landscape”.6 He noted that the telephone calls had escalated to physical presence, and that the physical presence occurred while Mr Mani was on bail. He accepted that there was no physical violence. The Judge acknowledged that Mr Mani has tried to take some steps to gain a better understanding of the significance of his offending, but he nevertheless found that, on a “scale of 1 to 10”, Mr Mani’s offending was “at about the range of 6, and therefore moderate getting on towards high”.7 The Judge considered that expressions of remorse
5 Police v Mani, above n 1, at [6].
6 At [8].
7 At [9].
by Mr Mani flowed more from the consequences that he might face than anything else and that his post-arrest conduct did not repair the damage that had occurred.
[29] The Judge went on to consider the consequences, observing that decisions relating to immigration must be made by the Immigration Department. He held that the Court should not usurp the role of the Immigration authorities and that it should not in any indirect way, attempt to condone the offending.
[30] The Judge noted that Mr Mani had in any event been refused a visa to return to New Zealand, and stated as follows:8
The risk that the defendant fears has of course come to pass, but as far as I am concerned I do not see that as a disproportionate consequence to what I consider to be serious offending.
The Judge declined to exercise his discretion and dismissed the application for discharges without conviction. He issued a warrant for Mr Mani’s arrest so that he could be brought before the Court to face sentence if and when he returns to this country. Notably, he did not enter convictions against Mr Mani.
The appeal
[31] The appeal has been brought as a general appeal – purportedly pursuant to s 250 of the Criminal Procedure Act 2011. I doubt that this can be correct. Section 250 deals with appeals against sentence. Mr Mani has not been sentenced. Nor have convictions yet been entered against him. An appeal against a refusal to discharge a defendant without a conviction is properly characterised as an appeal against both conviction and sentence.9 Arguably, there is no jurisdiction to bring the appeal. However, the Crown did not take the point, and instead dealt with the appeal on its merits. I proceed on this basis.
[32] An appeal against a refusal to discharge without conviction proceeds by way of rehearing, with the appellate Court making its own assessment. While the first instance Court had a discretion pursuant to s 106 of the Sentencing Act 2002 when
8 At [10].
9 Jackson v R [2016] NZCA 627, [2016] 28 CRNZ 144.
determining whether or not to discharge Mr Mani without conviction, the discretion conferred by s 106 is fettered by s 107. It provides a gateway through which any discharge without conviction must first pass.10 Section 107 requires judicial assessment of identified threshold criteria, and this does not involve the exercise of a discretion.
Submissions
[33] Mr Harder, on behalf of Mr Mani, submitted that Judge Harvey overstated the gravity of Mr Mani’s offending, and gave insufficient weight to the consequences of convictions on Mr Mani. He argued that the phone related offending is best considered as a naïve error of judgment. He acknowledged that the March 2018 offending was more serious, but put it to me that it too had to be seen in context. He argued that it was not a case of pre-meditated stalking, that there was no threatening behaviour, and that rather, the offending was a misguided attempt to repair the relationship, after some positive efforts had been made by Mr Mani to deal with his earlier offending. He argued that the offending as a whole should be characterised as low to moderate, taking into account the fact that Mr Mani was in custody for approximately a month, undertook rehabilitation courses and otherwise complied with his bail conditions.
[34] Mr Harder referred to a number of decisions which discuss the immigration consequences of convictions, and where applications for discharge without conviction have been made. He argued that Mr Mani’s situation is serious, because he has deep roots in New Zealand, having been in this country for over a decade. He argued that the entry of convictions will deprive Mr Mani of his opportunity to earn a living, to help raise his child and to be in New Zealand. In this regard, he referred to the best interests of the child provisions contained in ss 4 and 5 of the Care of Children Act 2004. Relying on an alert notice appearing on Mr Mani’s immigration file, he argued that Mr Mani will not be given a further visa/entry permission to come into New Zealand, unless he can first obtain a clear police certificate. He submitted that that will be impossible if convictions are entered.
10 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8].
[35] Mr Beattie, for the police, argued that Judge Harvey properly directed himself in law, and that he correctly focused on the direct and indirect consequences of convictions, rather than the consequences generally, which include the consequences flowing from matters predating the present offending. He argued that Judge Harvey did not overstate the gravity of the offending, and that it could not simply be characterised as foolish or naïve. He argued that whether or not the direct or indirect consequences of convictions are disproportionate will vary according to each case. Further, he argued that the consequences must be out of all proportion to the gravity of the offending and that there needs to be “a significant disproportion of consequence before the test will be satisfied”. He noted that Mr Mani’s temporary visa was due to expire in August 2019, and that while Mr Mani may have hoped that a new visa would issue, there was no guarantee in this regard, because Mr Mani already had two convictions for offending committed in this country while on a temporary work visa. He noted the remarks of Judge Harvey to the effect that Immigration New Zealand has already refused Mr Mani a visa, notwithstanding that no convictions had then been entered against him. He argued that Mr Mani’s visa/immigration status is not a direct or even an indirect consequence of convictions being entered and that in any event, the Courts have generally concluded that it is appropriate for immigration issues to be resolved by the Immigration Service rather than by the Courts.
Application to adduce fresh evidence
[36] Mr Mani sought to file a further affidavit for the purposes of the appeal. Any evidence has to be fresh and credible. Ordinarily, if the evidence could, with reasonable diligence, have been called at the first hearing, it will not qualify as sufficiently fresh. This however is not an immutable rule, because the overriding criterion is always what course will best serve the interests of justice.11
[37] Here, much of Mr Mani’s further affidavit reaffirms material that was already before Judge Harvey at the time the original decision was made. It cannot properly be said to be fresh. Mr Mani does annex his immigration file, which he has obtained from Immigration New Zealand. This evidence is not fresh, because it could, with
11 R v Bain [2004] 1 NZLR 638 (CA); affirmed on appeal, Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34]; Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273.
reasonable diligence, have been made available at the first hearing. Nevertheless, the Crown consented to this material coming before the Court and I accept it on that basis. The affidavit also extends to Mr Mani’s current employment status and an offer of employment he has received from a New Zealand company. That information is fresh, and on the face of it, credible. I have considered this material. Other paragraphs in the affidavit are simply opinion evidence by Mr Mani, and they are not admissible in any event. The paragraphs dealing with Mr Mani’s parenting situation with his child are not fresh, nor are paragraphs dealing with negotiations between Mr Mani and the victim regarding the sale of the family home. I nevertheless have considered this material in the interests of justice.
[38] The Crown has also sought to adduce through counsel an email received from an Immigration Office, Jenny Tims, dated 16 December 2019. She seeks to explain the alert notices on Mr Mani’s immigration file. Mr Harder was happy for this information to come before the Court, and I have considered it on this basis.
Analysis
[39]Relevantly, ss 106 and 107 of the Sentencing Act provide as follows:
106 Discharge without conviction
(1) If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
(2) A discharge under this section is deemed to be an acquittal.
...
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.
[40] The approach to be followed in applying the s 107 test has been set out by the Court of Appeal in Z v R.12 Arnold J held as follows:13
12 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142; and see DC (CA47/2013) v R [2013]
NZCA 255 at [30]–[35]; Ji v R [2015] NZCA 308 at [43]–[45].
13 At [27].
… when considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender; the court should then identify the direct and indirect consequences of conviction for the offender and consider whether those consequences are out of all proportion to the gravity of the offence; if the court determines that they are out of all proportion, it must still consider whether it should exercise its residual discretion to grant a discharge (although, … it will be a rare case where a court will refuse to grant a discharge in such circumstances).
[41] The Court must be satisfied that there is a real and appreciable risk that the identified direct and indirect consequences will occur. It need not, however, be satisfied that those consequences are inevitable.14
[42] Where it is argued that immigration consequences will flow as a consequence of any convictions entered, the Courts have generally held that such decisions should be left to the appropriate immigration authorities.15
[43]In Ji v R the Court of Appeal noted:16
… it is well-established that the courts should not usurp the function of the immigration authorities in deciding whether a person should be deported or not.
[44]In Zhang v Ministry of Economic Development, Asher J observed as follows:
17
In relation to a conviction affecting an offender's immigration status, or indeed ability to travel overseas, 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:
… The case for discharge may not be so strong where the details of the offending will be known and closely examined by the relevant authority in
14 Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [34]; Alshamsi v Police HC Auckland CRI-2007-404-062, 15 June 2007 at [20].
15 Ji v R, above n 12 at [49]; R v Foox [2000] 1 NZLR 641 (CA) at [39]; R v Mu CA262/03, 24
October 2003; A (CA747/2010) v R [2011] NZCA 328 at [30].
16 Ji v R, above n 12, at [49].
17 Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011 at [14]; See also Zhao v Police [2014] NZHC 3121 at [23]–[25]; Liang v Police HC Wellington AP38/02, 16 April 2003 at [20]; A (CA 747/2010) v R, above n 15, at [30].
any event, than where the query will be only as to prior convictions, for instance in an application for professional certification.
[45] While there is no doubt as to the general principle, immigration consequences can be taken into account in applying the s 107 proportionality test. A discharge without conviction may be appropriate if the consequence of subjecting the defendant to the scrutiny of the immigration authorities is out of all proportion. Brewer J has commented as follows: 18
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.
I agree with this observation.
[46] The approach the Courts have taken to the issue of immigration consequences is consistent with the approach taken to employment consequences where there is an independent body charged with determining the suitability of individuals for particular employment. In this context,19 Hammond J noted as follows:
Whether a conviction will form an occupational barrier is a relevant consideration in determining whether to grant a discharge without conviction. Where the conviction will result in an absolute bar to the occupation that may carry extra weight with the Court. I do not think there is any such suggestion in this case. If there is an independent body charged with determining the suitability of individuals for particular employment, the Court may be more ready to enter a conviction, it being of the view that it is in the public interest that that body is best able to make a decision with the benefit of full disclosure of the fact. The fact that the conviction may act as a barrier to gaining entrance to an occupation is not a determinative factor - it is merely a factor to be considered in the balancing exercise.
[47] Similarly, in R v Rollo,20 the Court of Appeal accepted a submission “that the Court should take care not to usurp the function of registration bodies, such as the Council, by routinely providing discharges in cases of this kind”.21
18 George v Police [2014] NZHC 1725 at [46]; See also Jeon v Police [2014] NZHC 66 at [20]–[21];
Kumar v Police [2015] NZHC 3293 at [36]–[41].
19 Liang v Police, above n 17, at [17].
20 R v Rollo CA1/04, 8 October 2004; Maraj v Police [2016] NZCA 279 at [28].
21 At [6]–[7].
[48] The most recent authority dealing with the impact of a conviction on an individual’s immigration status is the decision of the Court of Appeal in Rahim v R.22 The Court there noted that there is a distinction between the consequences of a conviction and the consequences of the underlying offending. That distinction is likely to be engaged in immigration related applications, where an applicant can demonstrate with some certainty that it is the conviction itself which will have the very real prejudice on his or her immigration status. The Court of Appeal commented as follows:
[28] Courts assessing how a conviction might affect an offender’s immigration status or ability to travel overseas may consider that it is appropriate for the consequences of conviction to be resolved by the specialist authorities, rather than by a Court pre-empting that decision-making process by a decision to discharge without conviction.
[29] The reluctance of courts to intervene in the decision-making of specialist bodies such as Immigration New Zealand or, in the employment context, professional disciplinary bodies, is most often evident where the outcome cannot reasonably be predicted. In such cases, the consequence of a conviction will be the risk that the offender’s immigration status or ability to travel overseas may change, or that disciplinary action, or some obstacle to qualification or employment, may occur.
[30] In the present case, however, Mr Laurent’s expert 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. That would be devastating for him and his family. We are satisfied on this basis that Judge Taumaunu erred in classifying the consequential risk “somewhere between the middle to the higher end of the scale of seriousness but not at the extreme end”. It is not always possible or helpful to place the consequences of conviction on a scale of seriousness. The consequences are just the consequences, either direct or indirect or both. Once they are identified, the question is whether those consequences are “out of all proportion” to the gravity of the offending.
[31] It is important also to identify whether the consequences under scrutiny are predicted to follow from the offending or from the fact of conviction. The s 106 cases founded on the risk of employment consequences provide a good illustration of the point. Often, in such cases, it is the offender’s conduct and not merely the conviction which gives rise to consequences the offender wishes to avoid. In this case, however, it is the conviction rather than what Mr Rahim did that will trigger the real and appreciable risk that he is likely to be deported.
(Citations omitted)
22 Rahim v R [2018] NZCA 182.
[49] In considering whether there is jurisdiction to discharge an offender under s 106, the Court is required to undertake a three-stage analysis.
(a)First, the Court must determine the gravity of the offending.
(b)Secondly, the Court must determine the direct and indirect consequences of any conviction entered.
(c)Finally, the Court must assess whether those consequences are out of all proportion to the gravity of the offence. It is likely to be only in rare cases that a discharge will not follow if the jurisdiction is found to exist.23
[50]Against this background, I turn to consider the appeal in this case.
[51] As noted, Judge Harvey considered that Mr Mani’s offending was “six out of ten”, and moderate heading towards high. Separately he referred to it as “serious offending”.
[52] In my judgment, the Judge was a little harsh in his categorisation of the offending. The first three offences – committed by way of telephone – were not serious in themselves. The only aggravating features were that the offending was persistent and that the protection order was repeatedly breached. I agree with the Judge that the fourth offence – that which occurred on 30 March 2018 – was more sinister. Mr Mani first entered and then remained in the appellant’s dwelling and refused to leave when repeatedly asked to do so. Mr Mani was not only in breach of the protection order, but it was also in breach of the conditions attaching to his bail.
[53] I have considered aggravating and mitigating factors relating to Mr Mani and his offending. I accept that Mr Mani spent approximately a month in custody and that he attended rehabilitative courses. I am not however persuaded that this provides much assistance to him. That Mr Mani further reoffended after completing rehabilitative courses, to my mind, heightens his culpability. So does the fact that all
23 Z (CA447/2012) v R, above n 12 at [27].
of the offending was committed in breach of Court orders when the consequences of breach, at least of his bail conditions, was clearly pointed out to him by Judge Hikaka. It cannot be said that Mr Mani did not otherwise breach the terms of his bail. Not only did he breach the terms of his bail on 30 March 2018, but it appears from the Court file that he breached it again on 13 September 2018, when he once again made contact with the victim.
[54] In my view, the offending, viewed overall and in context, can properly be categorised as being moderately serious. I do not consider that it was in the moderate to high range, or that it was serious offending, as suggested by Judge Harvey.
[55]I now turn to consider the consequences for Mr Mani if convictions are entered.
[56] First, I note that, insofar as I can ascertain from the District Court file, no convictions have yet been entered. Nevertheless, Mr Mani deposes that, when he tried to return to New Zealand on 30 June 2019, he was not permitted to board his aeroplane because he had been denied entry into New Zealand.
[57] The immigration file which has been produced by Mr Mani contains two alert notes. They read as follows:
******** 11/Jun/2019 1:38pm Tims, Jenny Compliance Operations******** NZ Police advise that this client has 4 breaches of a protection order and was due for sentencing yesterday and has previous history against the same victim and an excess breach alcohol charge. NZ Police advise that the police matters were [adjourned] in Manukau District Court yesterday as the Judge did not have the defence’s submissions. Sentencing is now on 25 June 2019. As client has left NZ he will likely have a Warrant to Arrest on his police matters. NO further visa/entry permission to be granted unless a clear NZ Police certificate is granted. Please refer any queries on this client to Jennifer Tims on …
********
…
20/Jun/2019 8:51am Tims, Jenny Compliance Operations******** Email from Police Prosecutions at Manukau: Client has applied for a s 106 discharge without conviction application which is scheduled for hearing on 25 June 2019. He also has two previous convictions, one of which is a common assault in 2011 against his ex-wife who is the same victim on the current charges before the Court. Client had a final protection order awarded against him (on application from his ex-wife) which was granted in August 2017. The current charges to which [Mr Mani] is seeking a discharge without conviction for are
4 charges of breaching that protection order. Please take this into consideration.
[58] Ms Tims in her email says that she placed the first alert on Mr Mani’s immigration file, because she understood at the time that Mr Mani had failed to appear, and because she believed that the Court would likely issue a warrant for his arrest. She says that a clear NZ police certificate would mean that Immigration New Zealand’s offshore branch would have assessed his criminal matters, and not identified any criminal or character concerns.
[59] While the initial entry on 11 June 2019 asserts that no further visa/entry permission is to be granted unless a clear NZ police certificate is granted, the second entry on 20 June 2019, which appears to record an email from the police, clarifies the position. The police accurately recorded the then current position and asked Immigration New Zealand to take into account the fact that Mr Mani has applied for discharges without conviction. Ms Tims says in her email as follows:
Mr Mani, regardless of a discharge without conviction will have to meet current immigration instructions relating to character in effect at the time of any further visa application that he makes. Even if granted a discharge without conviction there is no guarantee a further visa will be granted.
This assertion is consistent with the relevant provisions in the Immigration Act and Immigration New Zealand’s operational manual. As I understand it, Mr Mani was the holder of a temporary entry class visa, issued under s 76 of the Immigration Act 2009. Mr Mani has annexed to his affidavit the letter from Immigration New Zealand dated 8 February 2017, granting him a work to residence visa which was due to expire on 7 August 2019. It permitted Mr Mani to enter New Zealand as many times as he liked prior to that date, but advised that if he left New Zealand, and wished to return after 7 August 2019, he would need to apply for a new visa.
[60] The Immigration Department’s operational manual, rule A5.45, relevantly provides as follows:
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:
…
d.has been convicted at any time of:
i.any offence for which they have been imprisoned; or
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
[61] Mr Mani has two prior convictions – one for driving with excess breath alcohol, committed in June 2009, and the other for common assault (against the same victim), committed in May 2011. Both carry a sentence of more than three months’ imprisonment.
[62] Regardless of whether or not Mr Mani is convicted or receives discharges without conviction on the breach of protection order charges, he will require a character waiver. There is nothing to suggest that the entry of further convictions will change the position. Mr Mani attached to his initial affidavit a letter from Tarita Ltd, who are New Zealand based immigration advisers. The author of the letter, Rita Vinod, stated as follows:
If you are convicted and sentenced to imprisonment [then] you will not be able to work and this would mean that you will be breaching the conditions of your visa. Therefore, you may not be considered a bona fide temporary entrant.
Furthermore, if you are convicted for the offence [then] you will be normally ineligible for a temporary entry class visa unless granted a character waiv[er] as per A5.45 of Immigration New Zealand operational manual. If Immigration New Zealand does not grant a character waiv[er] you will not be granted a work visa.
There is nothing on the District Court file to suggest that Mr Mani has yet been convicted, and he has certainly not yet been sentenced.
[63] I can accept, as a matter of common-sense, that the entry of further convictions for breaching the protection order may attract more intense scrutiny by Immigration New Zealand if Mr Mani applies for a further temporary entry class visa, but Immigration New Zealand is already aware of the offending. It is not the entry of any convictions themselves which prejudices Mr Mani’s immigration status. Indeed, Ms Tims has stated that Mr Mani will have to meet current immigration instructions relating to character regardless of whether or not he is discharged without conviction
and that even if he is discharged without conviction, there is no guarantee that a further visa will be granted to him. This assertion has come in by consent and it is unchallenged.
[64] In my judgment, it is Mr Mani’s offending, and not the prospect that he may at some stage have convictions entered against him for that offending which gives rise to the consequences Mr Mani wishes to avoid. It cannot properly be said that convictions, which have not as yet been entered, have triggered any real and appreciable risk for Mr Mani.
[65] It follows that the consequences of declining to discharge Mr Mani without conviction are not out of all proportion to the gravity of the offence. I have reached this conclusion, because I am not persuaded, on the materials before me, that there are any real and appreciable consequences as a consequence of the Judge’s refusal to discharge Mr Mani without conviction.
[66] That is enough to dispose of the appeal, but, for the sake of completeness, I record that I have considered whether or not the provisions of the Care of Children Act are relevant. The paramountcy afforded to the welfare and best interests of the child under that legislation have been referred to in other contexts – most often in relation to bail applications. In some cases, the Courts have taken them into account.24 In others, it has been held that the purposes of the Bail Act are inconsistent with the paramountcy principle.25 The Supreme Court has taken the view that the paramountcy principle does not apply in the immigration context.26 While it may be that in some circumstances, the fact that a defendant has a child or children, and has parenting responsibilities, will be a relevant consideration in exercising the s 106 discretion, I do not consider that that factor has any weight in the present context. The Family Court has made orders permitting the child to travel overseas with either parent after 2022.27 No doubt that order could be varied to accommodate the present situation.
24 See generally: Flynn v Police, HC Nelson, CRI 2007-442-24, 20 February 2008 at [8]; Bavou v Police HC Auckland CRI-2010-404-18, 5 March 2010.
25 See generally: Cossill v Police, HC Auckland, CRI 2004-404-396, 19 October 2004 at [9]; Nguyen v Police [2014] NZHC 85 at [26]; S P v R [2015] NZHC 258 at [42].
26 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [24].
27 Chand v Mani [2019] NZFC 1008.
While Judge Harvey did not expressly consider the Care of Children Act, I do not consider it favours discharges without conviction in this case.28
[67] Also for the sake of completeness, I note that it was argued that Mr Mani has no right to appeal or review any decision made by Immigration New Zealand because he is out of the jurisdiction. I accept that on the face of it, the legislation does appear to preclude review,29 but I am not persuaded that it necessarily follows the Courts are precluded from considering the legality of any decision made by Immigration New Zealand. The Supreme Court has held that a similar privative clause in the Immigration Act does not prevent the Court from exercising its supervisory jurisdiction to ensure that the requirements of the Act are met, and that an applicant’s claim is lawfully considered.30
[68]In the circumstances, and for the reasons I have set out, the appeal is dismissed.
Wylie J
28 Weidemann v R [2018] NZCA 381, [2018] NZFLR 707 at [47]–[48].
29 Immigration Act 2009, s 186.
30 H v Refugee and Protection Officer [2019] NZSC 13, [2019] 1 NZLR 433 at [40], [46], [63], [64], [73]–[87].
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