Moala v Police

[2021] NZHC 1516

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2021-419-000031

[2021] NZHC 1516

BETWEEN

MAASI TOETUU TUKIPILI MOALA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	22 June 2021
Appearances:	S Bhardwaj for Appellant J Williams for Respondent
Judgment:	24 June 2021

JUDGMENT OF LANG J

[on appeal against conviction and sentence]

This judgment was delivered by me on 24 June 2021 at 3.30 pm.

Registrar/Deputy Registrar Date……………

Solicitors:
Crown Solicitor, Hamilton

MOALA v NEW ZEALAND POLICE [2021] NZHC 1516 [24 June 2021]

[1]    Mr Moala pleaded guilty in the District Court to a charge of assaulting a person in a family relationship, namely his wife. He also pleaded guilty to a charge of failing to answer his bail.  On  25 June 2020 Judge J C Down declined an  application by  Mr Moala to be discharged without conviction under s 106 of the Sentencing Act 2002.1 The Judge then sentenced Mr Moala to nine months supervision and ordered him to perform 100 hours community work. The Judge also required Mr Moala to undertake and complete counselling and treatment.

[2]    Mr Moala appeals against the Judge’s decision declining to grant him a discharge without conviction.

Leave to appeal out of time

[3]    Mr Moala did not file his notice of appeal until 19 May 2021. It was therefore filed approximately ten months out of time. That is a lengthy period, and the Court would normally require a convincing explanation before granting leave to appeal out of time. Mr Moala has filed an affidavit in which he explains that he only had one brief meeting with his former counsel, Ms Senar, after being sentenced. He said she did not advise him of his right to appeal and subsequent approaches to other lawyers did not provide him with further assistance. It was not until he engaged Mr Bhardwaj that he received advice regarding his right to appeal.

[4]    I do not find this explanation particularly convincing but given the issue at stake I consider it is appropriate to grant Mr Moala an extension of time within which to bring his appeal. I make an order accordingly.

Fresh evidence

[5]    Mr Moala also seeks leave to adduce fresh evidence. This takes the form of an affidavit sworn by Mr Simon Laurent, a solicitor who specialises in immigration law. Mr Laurent has sworn an affidavit in which he sets out the likely consequences of a conviction so far as Mr Moala is concerned from an immigration perspective.

1      New Zealand Police v Moala [2020] NZHC 11999.

[6]    The Court of Appeal has recently observed that material of this type may be helpful to a court considering an application for discharge without conviction in circumstances where the entry of a conviction may result in the offender being deported.2 Such evidence may assist the Court to identify an offender’s immigration status and associated rights, and it may also explain “otherwise opaque” administrative processes. In particular, it may identify considerations that a decision maker must or may consider in an immigration context.

[7]    Those factors are present in this case. I therefore grant leave for the evidence to be adduced.

The offending

[8]    The assault charge was laid as a result of an incident that occurred on the morning of 10 February 2020. Mr Moala had been drinking alcohol continuously between 2 pm the previous day and the early hours of 10 February. At one stage he fell asleep in the driveway of his property and was awoken by a passer-by.

[9]    When his wife came home from work in the morning, she refused to talk to him. An altercation ensued in which Mr Moala grabbed his wife and threw her on the ground. He then stood over her and punched two holes in the wall before punching her twice in the face with his closed fists. His wife then ran to the bathroom where she locked the door and tried to call the police on her cellphone. Mr Moala kicked the door down, grabbed the cellphone and smashed it against a wall. His wife was able to escape from the house and obtained assistance from some neighbours. When the police arrived, Mr Moala’s wife was found to have swelling to her face in the area of her forehead and below her right eye. She also had bruising to her right bicep.

[10]   The charge of failing to appear was laid after Mr Moala entered a guilty plea to the assault charge on  25 February 2020 but then failed to appear for sentence on  6 May 2020. A warrant for his arrest was issued but this was withdrawn after he made a voluntary appearance on 14 May 2020. Nothing further is known about the circumstances of that offending.

2      Sok v R [2021] NZCA 252 at [53].

Relevant principles

[1]        An application for discharge without conviction is governed by s 106 of the Act, which relevantly provides 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]        In applying s 106, the Court must follow the guidance contained in s 107 of the Act. This provides:

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.

[3]        A court considering an application for discharge under s 106 must consider three issues.3 It must first assess the gravity of the offending having regard to the facts of the particular case. This exercise is not restricted to the aggravating and mitigating factors of the offending itself. Factors personal to the offender may also be relevant.4 Next, it must identify the direct and indirect consequences of a conviction being entered. In this context there must be a “real and appreciable” risk that any posited consequence will occur.5 Thirdly, the court must determine whether the consequences of a conviction would be out of all proportion to the gravity of the offending. There is a residual discretion not to grant a discharge but that will rarely be exercised where the statutory criteria have been met.

[4]        An appellate court is required to reach its own view as to whether the direct and indirect consequences are out of all proportion to the gravity of the offending. If it accepts the statutory threshold has been met, the court must determine whether the

3      R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16]-[17].

4      Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27]; DC (CA47/2013) v R [2013]

NZCA 255 at [35].

5      DC (CA47/2013) v R, above n 4, at [43].

court at first instance erred in principle when exercising its discretion to grant or refuse to grant a discharge.6

The Judge’s decision

[5]        After describing the offending, the Judge assessed its overall gravity as follows:

[11]  In trying to make an assessment of gravity, I do not agree with Ms Senar that this is low level offending. I have concluded that it is moderate in seriousness. Mr Moala, since the offending in February, has engaged with HAIP [counselling], it is only because of the lockdown that there have been delays in him completing that course, but he is fully engaged in it. I am also told that he and Mrs Moala have been engaged in couples counselling. In terms of reduction of future risk, some steps have been taken. It is acknowledged however through counsel that there is an ongoing problem with alcohol which undermines his ability to control his temper. Although he reports through counsel that he has not consumed alcohol since this incident.

[6]        The Judge then turned to the likely consequences of a conviction. In the present case it is virtually inevitable that Mr Moala will be deported to Tonga if the conviction remains in place. This flows from the fact that Mr Moala has now been before the courts on three occasions in just 15 months. He was convicted on 18 March 2019 on a charge of driving with excess breath alcohol. This resulted in Mr Moala receiving a fine and being disqualified from driving for six months.

[7]        More importantly, he was convicted on 13 May 2019 on a charge of speaking threateningly to his wife. On this occasion he was sentenced to supervision for six months. Mr Moala’s conviction on this charge had other and more serious implications for Mr Moala because he and his family only arrived in New Zealand from Tonga three years ago. They held resident visas and were in the process of applying for permanent residency when the offending occurred in 2019.

[8]        The conviction in 2019 resulted in Mr Moala being served with a deportation liability notice. On 9 August 2019 the immigration authorities suspended the operation of that notice for four years on the condition that Mr Moala was not convicted of any offences during the suspension period and that he complied with the

6      Edwards v R [2015] NZCA 583 at [6].

conditions of his sentence of supervision. The fact that the present offending occurred within the suspension period means it is highly likely the deportation liability notice will be reactivated. It is now too late for Mr Moala to appeal against the notice. Furthermore, Mr Laurent assesses his likelihood of success in the avenues that remain open to him to remain in New Zealand lawfully as being low. It is therefore likely that if Mr Moala does not leave New Zealand voluntarily he will be deported at the expiration of 28 days after he is advised that the deportation liability notice has been activated. Mr Laurent says it is also unlikely that Mr Moala will be given a visa to visit New Zealand in the future.

[9]        The Judge proceeded on the basis that it was virtually inevitable that Mr Moala would be deported if the application for discharge without conviction was not granted. To that extent Mr Laurent’s affidavit adds nothing new. In considering whether this would be out of all proportion to the overall gravity of the offending the Judge observed:

[20]      Therefore, is almost inevitable deportation wholly disproportionate to the seriousness of this offending? I understand that it will be upsetting to his family if he were convicted and then deported. I understand that will be disruptive to his wife and family generally. But, Mr Moala does not have a general right to be here in New Zealand and has been warned of his precarious status previously in August last year. Despite that second chance, he has allowed himself to become so intoxicated that he has once again offended against his wife; demonstrating that his poor conduct towards her is actually escalating in seriousness. I have concluded that Mr Moala has had his opportunity and unfortunately has thrown it away.

[21]      It is a consequence of me entering a conviction that he is likely to be deported. But that, in my view, is not wholly disproportionate to the moderately serious assessment I have made of this offending, particularly in light of the fact that he has a relevant previous conviction and was under a significant and clear warning from Immigration. In those circumstances I do not consider that I have a discretion to discharge Mr Moala without conviction. I therefore, convict him of the offence of assault on a person in a family relationship. The 106 application is declined.

Grounds of appeal

[10]      On Mr Moala’s behalf Mr Bhardwaj submits that the Judge erred in concluding that the consequences of conviction were not wholly disproportionate to the gravity of the offending. He also points out that, in assessing the gravity of the offending, the Judge failed to take into account the fact that Mr Moala had entered a guilty plea. In

addition, he says the Judge erred in stating that Mr Moala did not have a general right to be in New Zealand because Mr Moala held a resident visa at the time of the offending. In addition, the Judge was not aware that, if Mr Moala is deported, it is unlikely that he will be granted a visa to return to New Zealand. That evidence is now before the Court in  Mr  Laurent’s  affidavit.  Taking  these  matters  into  account, Mr Bhardwaj submits this Court should conclude the consequences of conviction for Mr Moala are wholly disproportionate to the overall gravity of the offending.

Decision

Overall gravity of offending

[11]      As I have already observed, in this context the Court considers not only the culpability inherent in the offending but factors personal to the offender.

[12]      The offending occurred after Mr Moala had a very prolonged period of drinking and with no provocation on the part of the victim. The fact that his wife did not want to talk to Mr Moala was, as the Judge observed, entirely understandable given the level of his intoxication. The act of throwing her to the floor was an act of moderate violence. His act in then punching two holes in the wall would also have been frightening for her. The act of striking his wife twice in the head with a closed fist involved the infliction of violence to a vulnerable part of his wife’s body. Finally, Mr Moala’s actions in kicking down the bathroom door and smashing his wife’s cellphone added to the overall culpability of the offending.

[13]      The gravity of the offending was aggravated further by the fact that Mr Moala has previous convictions entered just 12 months earlier for driving with excess breath alcohol and speaking threateningly to his wife. He had only recently completed the sentence of supervision imposed on the latter. This fact outweighs any credit to be given to the rehabilitative efforts Mr Moala has undertaken and his guilty plea, which he entered in the face of a very strong prosecution case. It follows that I agree with the Judge’s assessment that, as an example of offending of its type, the overall gravity of the offending was moderately serious.

Consequences of conviction

[14]      Like the Judge, I proceed on the basis that a conviction on the present charge means it is virtually inevitable that Mr Moala will be deported from New Zealand if he does not leave voluntarily. Furthermore, it is unlikely that he will be able to return. This will cause obvious hardship for him because he says that his life is now firmly based in New Zealand rather than in Tonga. It will also cause hardship for his wife and two young children, who will be required to decide whether to return to Tonga with Mr Moala or remain in New Zealand so they can enjoy the material advantages this country has to offer.

[15]      As against that, however, Mr Moala and his family have only been in New Zealand for three years and they still have relatives in Tonga. They will not be returning to a place that is completely unfamiliar to them as is often the case when persons are deported after spending a lengthy period in another country. Furthermore, Mr Moala is just 31 years of age. As at the date of the hearing in the District Court he was unemployed and looking for employment. He is therefore not being forced to give up a good job in this country that would enable him to support his family when that will not be the case in Tonga. There is no evidence to suggest Mr Moala will be unable to re-establish his life in Tonga or that relocation will cause other forms of particular hardship to him and his family.

[16]      The Court will not inevitably decline an application under s 106 when the entry of a conviction is likely to result in the reactivation of a deportation liability notice. Mr Bhadwaj referred me to Chand v Police, in which this Court allowed an appeal and granted a discharge without conviction to an offender who was in that position.7 However, there are important factual distinctions between the facts of that case and Mr Moala’s offending. In that case the offending was provoked by an assault by the victim. That factor is obviously not present in Mr Moala’s case. More importantly, the appeal in Chand was effectively allowed without opposition because the offender had sole responsibility for the care of his young daughter. Deportation would prevent him from performing that role if he left his daughter in New Zealand. He could not take his daughter back to India with him because it would deprive her of all contact

7      Chand v Police [2017] NZHC 2188.

with the other members of her family. Muir J held that given the circumstances involving the offender’s daughter the prospect of deportation was “not an outcome the Court can countenance”.8 No such issues arise in the present case.

[17]      Like the Judge, I place emphasis on the fact that Mr Moala was effectively on a form of probation at the time of the present offending. He knew the immigration authorities were likely to reactivate the deportation liability notice if he committed any further offences between August 2019 and August 2023. He was therefore on notice that he needed to modify both his consumption of alcohol and his behaviour towards his wife if he was to avoid that consequence. Unfortunately he did neither. As the Judge observed, Mr Moala was given a second chance and effectively threw it away. He must now live with the consequences of his actions.

[18]      Overall, I would assess the consequences of conviction for Mr Moala as being moderate. It follows that the consequences of conviction are not out of all proportion to the overall gravity of the offending.

Result

[19]The appeal against conviction is dismissed.

Lang J

8 At [34].