McAlister v Police
[2022] NZHC 1247
•24 May 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-404-98
[2022] NZHC 1247
IN THE MATTER OF an appeal against refusal to discharge without conviction UNDER
the Criminal Procedure Act 2011
BETWEEN
JOHN MCALISTER
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 24 May 2022 Appearances:
A Wei for the Appellant
CL Wilkinson for the Respondent
Judgment:
24 May 2022
Reasons:
31 May 2022
REASONS FOR RESULT JUDGMENT OF FITZGERALD J
This judgment was delivered by me on 31 May 2022 at 3.00pm
Registrar/Deputy Registrar
Date……………………………
Solicitors: Meredith Connell, Auckland To: A Wei, Auckland
MCALISTER v NZ POLICE [2022] NZHC 1247 [24 May 2022]
Introduction
[1] The appellant, John McAlister pleaded guilty to charges of assault with intent to injure,1 possession of an offensive weapon2 and behaves threateningly.3 He applied for a discharge without conviction. On 10 March 2022, Judge K Lummis in the North Shore District Court declined his application.4 Mr McAlister appealed that decision.
[2] At the conclusion of the appeal hearing before me, I delivered a result judgment allowing Mr McAlister’s appeal. These are my reasons for doing so.
Facts
[3] On 27 June 2020, Mr McAlister and his wife were at a birthday party in Dairy Flat. The two victims, C and B, were also at the party. The two couples did not know each other.
[4] The party was held in a private bar set up on a rural property, which had a high- quality CCTV system that recorded both audio and video. The footage recovered by police formed the basis of the summary of facts to which Mr McAlister pleaded guilty.
[5] The party continued on well into the early hours of the morning. Everyone had been drinking heavily and was intoxicated. Mr McAlister especially had been drinking to excess, and went off to sleep in his vehicle parked outside.
[6] At about 5 am on 28 June 2022, Mr McAlister’s wife and the two victims were the only people left talking in the bar. Everyone else had either left or gone to bed. An argument developed between Mr McAlister’s wife and the male victim, C. As noted by the Judge, the CCTV footage suggests that the argument was over the way C had been treating his dog. The Judge observed that Mr McAlister’s wife was insistent and persistent and “in C’s face” for a significant amount of time, while he and the female victim B were trying to diffuse the situation.
1 Crimes Act 1961, s 193. Maximum penalty 3 years’ imprisonment.
2 Crimes Act 1961, s 202A(4)(b) (representative). Maximum penalty 3 years’ imprisonment.
3 Summary Offences Act 1981, ss 21(1)(a) and (3). Maximum penalty 3 months’ imprisonment or
$2,000 fine.
4 Police v McAlister [2022] NZDC 4109.
[7] The argument developed to a point where Mr McAlister’s wife went to strike C and he grabbed her arms as she continued trying to punch him. The Judge recorded that this was accompanied by lots of “big talk” about what they could do to each other. Eventually they were separated with the help of B, and Mr McAlister’s wife went outside to wake her husband up.
[8] Mr McAlister’s wife then returned to the bar and immediately confronted C, punching him a number of times in the head. A melee ensued where C again grabbed her arms to stop her hitting him.
[9] Mr McAlister, who by then had arrived, then joined the melee. He grabbed C’s arms and launched forward and attempted to headbutt C.
[10] C was struck on the shoulder by Mr McAlister’s headbutt but was uninjured as a result. Mr McAlister and C began fighting, with Mr McAlister’s wife joining in, also trying to assault C.
[11] Eventually C managed to hold Mr McAlister and his wife down on the floor, demanding that they both calm down. C then let go, believing the fight was over.
[12] Mr McAlister then got up and picked up a 20cm knife that was on the corner of the table in the middle of the bar area. Mr McAlister was prevented from stabbing C by B, who grabbed his arm as he went to thrust out the knife.
[13] Mr McAlister pushed B off and approached C, who backed around the table. He said: “You are a dead man!” and began to chase C around the table, holding the knife in a raised position ready to strike. C managed to run from the bar and called the police.
[14] Mr McAlister followed, but then returned to the bar area to find his wife attacking B. She dragged B behind the bar, holding her by her hair, as B begged her to stop. Mr McAlister’s wife held B down by her hair for about the next two minutes.
[15] During this time, the summary of fact records that Mr McAlister kicked B three times in the face as she was held down by his wife. The Judge found that, having
watched that part of the video repeatedly, Mr McAlister actually kicked the victim five times in total, once to the head and four times to other parts of the body.5 He was wearing heavy work boots. B had no way of avoiding what was happening to her.
[16] Eventually B was dragged back to her feet by Mr McAlister’s wife, who continued to hold her by her hair. Mr McAlister approached B with the knife, pointed it at her face and demanded that she get C back. B agreed that she would do so and ran from the bar area.
[17] During the entire incident, B continuously tried to diffuse the situation and separate the parties, repeatedly asking everyone to stop. At no point did she attempt to attack anyone.
[18] As a result of being kicked by Mr McAlister, B suffered extensive bruising and tenderness to her face, however she did not sustain lasting damage and her injuries largely healed within a week. C was mostly uninjured apart from a few minor scrapes and bruises.
[19] In explanation, Mr McAlister said he had been drinking excessively and was so intoxicated that he had urinated on himself. He said that after being punched the first time by the male victim C, he could not recall what had happened.
[20] I interpolate to raise one matter in relation to the factual basis upon which Mr McAlister was sentenced. The summary of facts to which Mr McAlister pleaded guilty records that the CCTV footage recovered by the Police was the source of the summary of facts. Unlike some other summaries which are based on CCTV footage, the summary of facts does not expressly state that the CCTV footage was included in and formed a part of the summary of facts. I mention this, as some of the matters recounted by the Judge in her summary of Mr McAlister’s offending do not feature in the written summary of facts, but rather were observations made by the Judge from watching the CCTV footage.
5 However, as Mr McAlister pleaded guilty to the police summary of facts, I do not place any weight on the difference.
[21] A disk containing the CCTV footage was provided with the appeal filed, and I too watched that footage. I observe, however, that the summary of facts set out at [3] to [19] above is taken from the written summary of facts, and not my own analysis of the CCTV footage. Neither party objected to the facts upon which Mr McAlister was sentenced, including those observations the Judge made from her own viewing of the footage. I record that any additional or different matters noted by the Judge from her review of the CCTV footage would not, in my view, have altered the outcome on sentencing. But given the increased availability of CCTV footage in private residential premises, it would be appropriate in my view for the summary of facts to expressly state whether the CCTV footage is included in and forms part of the summary of facts, rather than simply stating that the footage is the source of the summary. This is appropriate, in my view, given the parties will no doubt have reached agreement in relation to the written summary of facts, and the Judge’s own observations and inferences drawn from watching the footage might, for example, differ from the parties’ interpretation of what has occurred, or the Judge might make incorrect assumptions in relation to what is seen in the CCTV footage. This could be unfair to a defendant, particularly if any additional observations or inferences made by the Judge are not expressly referred to in the Judge’s sentencing notes.
[22] I emphasise that I am not suggesting that any of the above issues arose in this case. Rather I simply take this opportunity to make these observations given the likelihood of the increasing availability of CCTV footage at sentencing and following a guilty plea. In short, the preferable course would be for the Police and defendant to be very clear when preparing and finalising the summary of facts as to whether the full content of the CCTV footage is to form part of the factual basis for sentencing, that is, in addition to what is recorded in the written summary.
Should additional evidence be admitted?
[23] Before turning to the substantive appeal, I first address Mr McAlister’s application for leave to admit additional evidence on his appeal.
[24] Mr Wei, counsel for Mr McAlister (on the appeal, but not at sentencing), sought leave to admit a further affidavit by Mr McAlister which provides considerably
more detail about Mr McAlister’s personal circumstances than the relatively brief affidavit filed in the District Court. Mr Wei submitted that the further evidence demonstrates the details of Mr McAlister’s unique situation and personal background. He submitted that the short, unsworn affidavit before the Judge was poorly prepared and did not provide much detail to assist the Court. The respondent opposed leave (though not vigorously so). Ms Wilkinson, for the respondent, submitted that the evidence is not fresh as it was available at the time of sentencing, and Mr McAlister’s own evidence appeared to dispute in parts the facts upon which he was sentenced. Counsel accepted, however, that the material was cogent and did not give rise to any prejudice to the respondent.
[25] Pursuant to s 335 of the Criminal Procedure Act 2011, this Court, on an appeal, can conduct its own enquiry into evidential matters if it considers it necessary or expedient in the interest of justice to do so. Further evidence may be adduced on appeal if it is fresh and credible.6 The overriding criterion is always what course will best serve the interests of justice.
[26] Here, the proposed evidence is not fresh, in that it could have been placed before the Judge at sentencing. However, I accepted that it went to the heart of the appeal, as it directly concerns Mr McAlister’s personal circumstances and the risk of deportation flowing from his convictions. Further, it is credible. I was satisfied there would be no prejudice to the respondent were it to be admitted. I was therefore of the view that it was in the interests of justice to admit the proposed evidence.
The District Court decision
[27]I turn now to the District Court decision.
[28] After summarising the facts of the offending and the victim impact statements, the Judge turned to the gravity of Mr McAlister’s offending. She identified four aggravating factors: B’s vulnerability, the strike to the head, the situation of “two on one” and the extent of the harm to B. She noted that counsel had raised the issue of
6 Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71; and Lundy v R [2013] UKPC 28, [2014] 2 NZLR
273.
self-defence and provocation, but found “completely to the contrary”, noting it was Mr McAlister’s wife who attacked victim C, and while C was involved in the fight he was broadly trying to calm things down, and by the time Mr McAlister kicked B in the face, C was well gone in any event.7
[29] The Judge said it was unclear what impact Mr McAlister’s prior head trauma would have had on his decision-making, but it was disturbing that the lead charge happened when things on the face of it were calming down. She recorded that counsel for Mr McAlister accepted that the gravity of the offending was “somewhat serious”.8
[30] The Judge characterised the offending as “very serious” and the “very worst type of offending for that level of charge” to which Mr McAlister had pleaded guilty.9 She considered that, even taking into account the prior head trauma, a starting point would be “close to the maximum”.10 She recorded that this also took into account all of the offending, including the “serious” presentation of the knife at C.11 The Judge said Mr McAlister was very lucky not to be facing more serious charges and incredibly lucky that B did not end up with a serious head injury.
[31] The Judge then turned to mitigating personal factors. She considered a 10 per cent discount was appropriate for Mr McAlister’s guilty pleas, but increased that to 15 per cent to take into account his remorse. She recorded that Mr McAlister had no prior convictions, and that she had materials before her indicating he had been a person of good character. She noted that while he had not engaged especially in alcohol or drug counselling, he had not had a drink since the offending. She referred to his multiple prior head traumas and that fact he had offered to make a $5,000 reparation payment.
[32] The Judge concluded that if this had been a sentencing in the normal course of events, from a start point of three years, taking the most generous view of the discounts
7 Police v McAlister, above n 4, at [18].
8 At [19].
9 At [20].
10 At [20].
11 At [20].
available (totalling around 40 per cent) would result in a sentence of just under two years. She recorded that this would likely lead to a sentence of home detention.
[33] The Judge then referred to parity with Mr McAlister’s wife, who was also charged and convicted as a result of the events described earlier. She had been sentenced to six months’ community detention and intensive supervision. The Judge described that sentence as “lenient”.12
[34] Taking into account all of these factors, the Judge remained of the view that the offending was serious, and that if it was anything below that, it would only be slightly below that.
[35] The Judge then considered the consequences of a conviction. She referred to a letter in support from Mr Martin, an immigration lawyer, which outlined that Mr McAlister holds a resident-class visa that was granted on 6 March 2019 and that he is liable for deportation if convicted on the charges, pursuant to s 161(1)(b) of the Immigration Act 2009 (the Act).
[36] The Judge noted that Mr McAlister would have the ability to appeal to the Immigration and Protection Tribunal against deportation. However, she accepted the grounds for appeal are limited to humanitarian circumstances and the information before her from Mr Martin was that he did not consider Mr McAlister would have a particularly strong case, despite the strong links with his wife and young child in New Zealand. The Judge stated that if Mr McAlister were deported, he would have a permanent prohibition on entering New Zealand. The Judge continued:
[34] Mr Martin goes on to explain that when a conviction becomes known to Immigration New Zealand, the file is referred to the resolutions branch within Immigration New Zealand. They are responsible for investigating deportation liability and preparing reports to the minister to enable him to exercise his powers. The report will present the Minister of Immigration with three options. The first is to cancel the deportation liability, the second is to suspend the deportation liability for a maximum of five years and can include certain conditions, and the third is to issue a deportation liability notice. Once the deportation liability notice is issued, you will be served and have the ability to exercise your right of appeal.
12 At [29].
[35] The decision by the minister to cancel or suspend a deportation liability is not subject to the Official Information Act and consequently the minister is not obliged to give reasons or to set out factors taken into account. It is not clear to me from the information before me when the minister would exercise the right to cancel the deportation liability or to suspend the deportation liability. The focus of this letter is simply on the likely resulting deportation liability notice.
[36] The letter goes on to talk about the exceptional circumstances of a humanitarian nature which would be required for your appeal to be successful. The letter then perhaps strays into submission and quotes from a number of cases as to how the courts have interpreted this in s 106 cases previously. Mr Anderson [Mr McAlister’s counsel at sentencing] is right when he says you can find cases that go both ways. Certainly, I accept that the consequences of being liable for deportation are significant for you. If you were deported, that may well see your family split up and the concern about your family’s future obviously weighs very heavily on you. Ms Taylor in court today from Probation told me that your wife has been doing very well on her sentence of intensive supervision but that today’s hearing has been weighing heavily on her as well.
[37] The Judge noted that there are a number of Court of Appeal decisions relating to immigration consequences, some dealing directly with s 161. She referred to the “not dissimilar” decision in Zhu v R, in which the Court of Appeal considered that although the evidence was finely balanced, it was not necessary or helpful to estimate how likely it was that a deportation liability notice will issue.13 The Judge also referred to Rahim v R.14 In that case, the Court of Appeal said that the courts, when considering how a conviction might affect an offender’s immigration status, may consider it appropriate for the consequences of conviction to be resolved by the specialist authorities, rather than the courts pre-empting that process by a decision to discharge without conviction.15
[38] The Judge accepted that there would be significant consequences for Mr McAlister, and that deportation appeared to be a real and appreciable risk.
[39] The Judge then considered whether the identified consequences would be out of all proportion to the gravity of the offending, noting that there was no onus on Mr McAlister to establish disproportionality. She concluded that the consequences were not out of all proportion, saying:
13 Zhu v R [2021] NZCA 254, as cited in Police v McAlister, above n 4, at [37].
14 Rahim v R [2018] NZCA 182.
15 At [28].
[40] ... I am troubled by your situation. I have considerable sympathy, and I suggested that there may be a way forward if the police were able to reduce the charges further, and I asked the prosecutor to explore that over the lunch hour. I can understand why the police have chosen not to make any further reductions as well, because in the end what I am left with is that this was really serious offending. I do not think, given my assessment of the offending, that it can be said despite the drastic possible consequence for you, that it is out of all proportion.
[41] It can’t be right that in any case where deportation is an expected consequence that a discharge should result. For offending assessed as grave the usual consequences must follow.
(emphasis added)
[40] For these reasons, the Judge declined the application for discharge. She said that while she hoped Mr McAlister would in fact be able to stay in New Zealand and support his wife, she still thought Immigration New Zealand should be the entity to make that decision, not her. Taking into account parity with Mr McAlister’s wife, she imposed a sentence of six months’ community detention and a $2,500 emotional harm reparation. In respect of the possession of a weapon charge, she sentenced Mr McAlister to six months’ community detention, to be served concurrently. She discharged and convicted Mr McAlister in respect of the threatening charge.
The law
[41] Sections 106 and 107 of the Sentencing Act 2002 enable a court to discharge an offender without conviction, provided the court is satisfied the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[42] As noted by the Court of Appeal, this is a two-stage inquiry.16 First, the Court must determine the gravity of the offence and the consequences of conviction, and whether those consequences are out of all proportion to the gravity of the offending. It is well-settled that the assessment of the gravity of the offending is to be assessed at this stage by considering all the aggravating and mitigating factors relating to the offending and the offender.17 At the second stage, if the Court is satisfied the
16 DC v R [2013] NZCA 255 at [31].
17 Z v R [2012] NZCA 599, [2013] NZAR 142 at [27]; DC v R, above n 16, at [35]; and Waine v R
[2017] NZCA 287 at [21].
consequences are out of all proportion to the gravity of the offending, it should then consider whether to exercise its discretion to decline to grant a discharge.
[43] In terms of the consequences of a conviction, the Court should consider not just those consequences that “would inevitably or probably occur”, but all those where there is a “real and appreciable risk that such consequences would occur.”18
[44] Where a risk of deportation is raised as a consequence of conviction, both the Court of Appeal and this Court have cautioned against the courts usurping the role of immigration officials.19 As Asher J said in Zhang v Ministry of Economic Development:20
… 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.
[45]However, this position was qualified somewhat by the Court of Appeal in
Rahim v R, the Court stating:21
[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
18 Alshamsi v Police HC Auckland CRI-2007-404-62, 15 June 2007 at [20].
19 Almarzouqi v Police [2020] NZCA 398 at [14], citing Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011 at [14]; Singh v Police [2020] NZHC 368 at [37]–[39]; and Ho v R [2016] NZCA 229 at [15].
20 Zhang v Ministry of Economic Development, above n 19, at [14] (citations omitted).
21 Rahim v R, above n 14 (footnotes omitted) (emphasis added). See also Almarzouqi v Police, above n 19, at [14]; and Singh v Police [2019] NZHC 417 at [39].
processes, a conviction is likely to result in his being required to leave New Zealand. That would be devastating for him and his family. ...
[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.
[46] In Rahim, the defendant and his wife had immigrated to New Zealand with a young child. If the defendant were to be deported, his wife “would face the prospect of an extremely difficult decision between returning to Pakistan with her husband or accepting the break-up of the family by remaining in New Zealand while her husband attempted to persuade New Zealand’s immigration authorities to allow him to return”.22
[47] There have been a number of High Court decisions since Rahim recognising that where there is a real and appreciable risk of deportation which will cause serious harm to a defendant’s family (usually in the form of a family unit being broken up), that may be relevant to the assessment of whether to grant a discharge without conviction.23
Analysis
[48] Mr McAlister is 45 years old. He is a British citizen. He does not have any prior convictions. He has lived in New Zealand since 2014, after leaving Northern Ireland following his service in the British Army in Northern Ireland. He has steady employment (as a specialist gas engineer), and contributes usefully to society in New Zealand (including through the Returned Services’ Association).
[49] Mr McAlister and his wife are parents to a daughter, now aged three years old, and he is also a father figure to his wife’s two young children from a prior relationship. Mr McAlister’s wife is a New Zealand citizen.
22 Rahim v R, above n 14, at [24].
23 Singh v Police, above n 19, at [38], citing Singh v Police, above n 21; Kovalic v Police [2019] NZHC 1214; R v Tang [2019] NZHC 2056; Sunda v Police [2019] NZHC 756; and Chand v Police [2017] NZHC 2188. See also Vohra v Police [2018] NZHC 3192.
[50] Turning first to the gravity of Mr McAlister’s offending, I agree with the Judge that, prior to personal factors mitigating factors being taken into account, the offending in this case was serious. It was ugly, and certainly in relation to victim B, gratuitous. I also agree with the Judge’s characterisation of the aggravating factors at [14] to [17] of her judgment. I take into account, however, that through good fortune, neither victim B nor C suffered any significant or lasting injuries.
[51] At the appeal hearing, Mr Wei sought to persuade me that a mitigating factor of the offending was self-defence/provocation. I do not agree. I accept that when Mr McAlister first entered the fray, he may have been acting under the belief that his wife had been assaulted by the male victim. Further, I accept that, certainly in the context of the fight between Mr McAlister and the male victim, the male victim was, to put it colloquially, “giving as good as he gets” and at some point, as the Judge observed, was seemingly getting the better of Mr McAlister. However, things escalated significantly when Mr McAlister picked up the knife. Further and in any event, and as the Judge noted, the male victim left the room fairly shortly after that and from that point onwards, there was no threat to Mr McAlister himself, or provocation from the female victim. On the contrary, she was vulnerable, and the repeated kicks Mr McAlister gave her while she was on the ground behind the bar were at a time where she was also being attacked by his wife (although it seems somewhat ineptly due to his wife’s highly intoxicated state), and thus presenting no physical threat to Mr McAlister.
[52] Mr Wei also sought to persuade me that following what appears to be some strikes to his head by the male victim, Mr McAlister almost seemed to act “unconsciously” and with a slowness in his actions. He said this was a further mitigating factor to the offending. But as I noted with Mr Wei at the appeal hearing, there was no expert evidence before me to support the submission that Mr McAlister’s offending, following a punch to his head by the male victim, was somehow caused or aggravated by any such injury. The link between a head injury and Mr McAlister’s subsequent offending is accordingly speculative.
[53] I turn then to personal aggravating and mitigating factors. No personal aggravating factors are suggested. As noted, Mr McAlister has no prior convictions.
[54] Unlike the District Court Judge, I have had the benefit of more detailed information in relation to Mr McAlister himself, his background, and his physical and mental health. Taking into account this material, I consider there are reasonably strong mitigating personal factors. As noted, Mr McAlister is 45 years old, and therefore is not a young man. He has no prior convictions. Accordingly, over his entire adult life, and but for the index offending, Mr McAlister has been of good character and a productive and contributing member of society. I therefore accept that the index offending was an aberration for him, brought about by being severely intoxicated and at least in the initial stages, apprehending that his wife may have been assaulted.
[55] I also accept that Mr McAlister is genuinely and deeply remorseful, evidenced by his further affidavit filed on the appeal, which I accept is in his own words and not “word-smithed” by legal counsel. It is also seems clear from the medical evidence filed with Mr McAlister’s affidavit that he did suffer a concussion or similar brain injury through what appear to have been punches to his head by the male victim. Mr McAlister was taken to the Emergency Department nine days after the offending, with quite significant and ongoing concussion-like symptoms. There is further medical evidence about the physical and mental difficulties Mr McAlister has experienced as a result, which appear to be cumulative upon a number of earlier concussions and head injuries. I should emphasise that I am not referring to these matters to suggest that Mr McAlister’s head injury is a mitigating factor in relation to his offending. Rather, I take into account the relatively clear evidence that since the index offending, Mr McAlister’s neurological health and mental well-being has declined not insignificantly. To put the point another way, the consequences of the offending for Mr McAlister have extended well beyond the stress and anxiety that would usually attach to someone facing charges of this nature, and the related court process.
[56] Once personal mitigating factors are taken into account, I would categorise the gravity of Mr McAlister’s offending as moderate. I therefore disagree with the Judge’s characterisation that even once all personal mitigating factors are taken into account, the gravity of the offending is still serious.24 I should emphasise, however, that I have
24 Police v McAlister, above n 4, at [30].
had the benefit of further materials filed on the appeal which were not before the Judge in the District Court.
[57] Turning to the consequences of a conviction, it is clear that because of the nature of the visa that Mr McAlister holds, he is as a matter of statute liable to deportation (pursuant to s 161 of the Act). The unchallenged expert evidence is that once the Immigration New Zealand officials become aware of Mr McAlister’s convictions, a report will be prepared for the Minister of Immigration, with the options being cancelling Mr McAlister’s deportation liability, suspending deportation liability for a period of up to five years on conditions, or to issue a deportation notice. Further material from the immigration expert put before the Court on the appeal states that it is “almost certain” that a deportation notice will be issued.
[58] As the District Court Judge noted, it would then be open to Mr McAlister to appeal against the issue of a deportation notice (within a period of 28 days of being served with such a notice). Any such appeal would be limited, however, to humanitarian grounds. The respondent accepts that there would not be a strong basis for a successful appeal. At the appeal hearing before me, Ms Wilkinson accordingly accepted that deportation itself is a real and appreciable risk of a conviction, and that an “obvious flow on consequence of deportation” would be the separation of the family unit.
[59] In Rahim, the Court of Appeal noted that the reluctance of the courts to intervene in immigration matters “is most often evident where the outcome cannot reasonably be predicted.”25 In such cases, the consequences 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.”26 In this case, the outcome can be reasonably predicted, in that Mr McAlister’s immigration status will as a matter of certainty change, as a result of him automatically being liable for deportation pursuant to s 161 of the Act.
25 Rahim v R, above n 14, at [29].
26 At [29] (emphasis added).
[60] This case is therefore similar to the facts in Rahim where the “expert opinion establishes that the real and appreciable risk is significantly higher than the mere prospect of deportation”.27 To put the point another way, in this case, there is a real and appreciable risk of deportation, rather than a real and appreciable risk of a prospect of deportation.28 The latter type of case tends to arise where there remains some discretionary element on the part of Immigration New Zealand officials as to whether or not a person will become liable for deportation (or where the evidence put before the court does not enable the court to assess the risk of deportation).
[61] Like in Rahim, the real and appreciable risk of deportation would be “devastating” for Mr McAlister and his family.29 In Rahim, the Court of Appeal characterised the seriousness of Mr Rahim’s offending as low level, after taking into account that he made extensive efforts to atone for his uncharacteristic behaviour. Contrasted with the “extremely adverse consequences of a conviction for Mr Rahim and his family”, the Court held that “the outcome of the proportionality evaluation clearly favours a discharge without conviction”.30
[62] In this case, Mr McAlister’s offending is of course not appropriately categorised as low level. As noted, it is moderate. The proportionality exercise is therefore not as “clear” as it was in Rahim. I was nevertheless of the view that the proportionality assessment still led to the conclusion that the consequences of a conviction would be out of all proportion to the gravity of Mr McAlister’s offending. Ultimately, and because Mr McAlister would face a permanent prohibition of re- entering New Zealand, it is a real and appreciable risk that that he will be permanently separated from his wife and young children, or at least separated from them until they are in a position to travel independently to wherever he may be living at any given time. As noted, Mr McAlister’s biological daughter is only three years old, and his wife’s children from a prior relationship, to whom he is a father figure, are also very young. I agree with Walker J’s observations in Police v D’Souza that it would be inappropriate to assume that Mr McAlister’s wife, who is a New Zealand citizen, and therefore having relationship and other connections in this country, together with her
27 At [30].
28 As noted earlier, counsel for the respondent accepted this.
29 At [30].
30 At [33] (emphasis added).
children, would give up their lives in New Zealand to the extent that the Court could discount the likelihood of separation.31
[63] Accordingly, it is on the proportionality assessment where I part company with the District Court Judge, noting again that I have had the benefit of additional material before me on the appeal. I agree with the Judge’s comment that “[i]t can’t be right that in any case where deportation is an expected consequence that a discharge should result.”32 What is required in any given case is an assessment of whether the consequences of a conviction are out of all proportion to the gravity of the offending. That is what I concluded would be the case here.
[64] For completeness, I observe that in conducting the proportionality assessment, the Judge described Mr McAlister’s offending as “really serious offending” and as “grave”.33 It strikes me that in describing the offending in that way for the purposes of the proportionality assessment, the Judge placed too little weight on personal mitigating factors (that description of the offending effectively mirroring the Judge’s earlier description of the gravity of the offending before personal mitigating factors were taken into account).
[65]For these reasons, I allowed Mr McAlister’s appeal.
[66] As reflected in my minute issued following the appeal hearing on 24 May 2022, I quashed Mr McAlister’s convictions and granted a discharge without conviction pursuant to s 106.
Fitzgerald J
31 Police v D’Souza [2018] NZHC 1317 at [23].
32 Police v McAlister, above n 4, at [41].
33 At [40] and [41].
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