Narayan v Police
[2020] NZHC 2558
•30 September 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-404-000275
[2020] NZHC 2558
BETWEEN DAVEND NARAYAN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 28 September 2020 Appearances:
John Clearwater for the Appellant Conrad Purdon for the Respondent
Judgment:
30 September 2020
JUDGMENT OF MOORE J
[Appeal against conviction]
This judgment was delivered by me on 30 September 2020 at 12:00 pm.
Registrar/ Deputy Registrar Date:
NARAYAN v NEW ZEALAND POLICE [2020] NZHC 2558 [30 September 2020]
Introduction
[1] On 18 February 2020, Community Magistrate P A King, in the District Court at the North Shore, declined Mr Narayan’s application for a discharge without conviction on a single charge of driving with excess breath alcohol.1 She convicted him, ordered a period of disqualification and fined him.
[2] Mr Narayan appealed. On 9 June 2020, Judge A-M J Bouchier, in the District Court at the North Shore, dismissed Mr Narayan’s appeal against the decision of the Community Magistrate.2
[1] Mr Narayan again seeks to challenge the refusal to discharge him without conviction. Because bringing a second appeal requires leave pursuant to ss 237 and 253 of the Criminal Procedure Act 2011, and no such application had been filed, I issued a Minute requesting that Mr Narayan address the issue.3 Mr Clearwater, for Mr Narayan, filed a memorandum to this effect on 25 September 2020. The Crown opposes leave being granted.
[2] This Court must decline leave for a second appeal unless it is satisfied that either the appeal involves a matter of general or public importance or that a miscarriage of justice may have occurred or may occur unless the appeal is heard.4 The threshold is a high one. The Court will be slow to grant leave where success depends upon the court reversing concurrent findings of fact from the decisions below.5
Summary of facts
[3] In the evening of Sunday, 11 August 2019, Mr Narayan was driving a vehicle on Red Beach Road, Auckland. At approximately 7:45 pm, Mr Narayan’s driving was noticed by a member of the public because he was failing to stay within his lane. The Police were called. Mr Narayan was seen to pull into the Red Beach Mobil car park
1 Police v Narayan DC Auckland CRI-2019-044-002830, 18 February 2020.
2 Narayan v Police [2020] NZDC 10525.
3 Dated 25 September 2020.
4 McAllister v R [2014] NZCA 175; [2014] 2 NZLR 764 at [36].
5 Butler v Police [2016] NZCA 27 at [3].
where he got out. The Police arrived shortly afterwards and the member of the public pointed out Mr Narayan, as the driver. Mr Narayan showed signs of recent alcohol intake. Breath test procedures were carried out and Mr Narayan was found to have a breath alcohol level of 973 micrograms of alcohol per litre of breath. In explanation, he said that he was driving to charge his phone and had consumed four or five beers.
The Community Magistrate’s decision
[4] Applying the test for discharges without conviction as set out in ss 106 and 107 of the Sentencing Act 2002, the Community Magistrate assessed Mr Narayan’s offending as moderately serious, on the basis that:
(a)as stated in the Supreme Court in Alwyn v Police drink driving at any level is “dangerous, illegal and socially unacceptable”,6 and Mr Narayan was almost four times the legal limit;
(b)a concerned member of the public reported him because of his driving, which indicates the extreme road safety risk of his driving;
(c)he has been assessed as a non-problematic drinker, and has stopped drinking all together;
(d)he expressed remorse in his affidavit;
(e)he was in a stressed state at the time; and
(f)he has no previous convictions.
[5] As to the consequences of a conviction for Mr Narayan, the Community Magistrate noted:
(a)shame and embarrassment are a consequence of offending; there was no risk to his employment; and
6 Alwyn v Police [2008] NZSC 113; [2009] 2 NZLR 1.
(b)Mr Narayan is on an essential-skills visa; being charged and pleading guilty means he is captured by s 157(1) of the Immigration Act 2009 and thus may be liable for deportation, regardless of a conviction. The Community Magistrate noted the appeal options available to him if he was to be served a deportation liability notice. She considered a conviction for Mr Narayan was unlikely to reach the serious threshold preventing him from staying in New Zealand.
[6] The Community Magistrate found that the additional scrutiny of Immigration New Zealand was not out of all proportion to the gravity of the offending. She declined the application for a discharge without conviction, entered a conviction, fined Mr Narayan $1,000 and disqualified him from holding or obtaining a driver licence for a period of seven months.
Judge Bouchier’s decision
[7] The Judge noted the requirements for an appeal and noted that applications for discharge without conviction in alcohol-related driving cases should always be scrutinised with care. She referred to Waight v Police as a case where extenuating circumstances of the offending led to a discharge.7
[8] The Judge assessed Mr Narayan’s offending as “on the high end of moderately serious, verging onto the very serious”, given his high level of excess breath alcohol, and the fact his driving faults were noticed by a member of the public.
[9] The Judge then assessed the consequences of a conviction for Mr Narayan, including those factors personal to Mr Narayan, those personal to his family and those personal to his employer. She stressed that the consequences for Mr Narayan regarding his liability for deportation can only be decided by Immigration New Zealand. The Judge held that the Court should not interfere with that decision-making process. The Judge further held that a real and appreciable risk that Mr Narayan would be deported had not been made out.
7 Waight v Police HC Auckland CRI-2006-404-465, 24 May 2007.
[10] The Judge concluded that the consequences of a conviction were not out of all proportion to the gravity of Mr Narayan’s offending.
Application for leave
Does the appeal raise an issue of general or public importance?
[11] Mr Clearwater submits that the questions of law raised on appeal are as follows:
(a)whether the District Court Judge erred in her assessment of the gravity of the offending;
(b)whether the District Court Judge erred in holding that the real and appreciable test had not been made out; and
(c)whether the District Court Judge erred in holding that the direct and indirect consequences of a conviction were not out of all proportion to the gravity of the offence.
[12] The Crown submits that there can be no suggestion that Mr Narayan’s appeal raises an issue of general principle or general importance in the administration of the criminal law by the Courts.
[13] The procedure for discharges without conviction is governed by ss 106 and 107 of the Sentencing Act 2002. Under s 107, the Court must carry out the well-known three-step test:8
(a)assess the gravity of the offence, taking into account all the aggravating and mitigating factors relating to the offending and offender;9
8 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16].
9 Z (CA447/2012) v R [2012] NZCA 599 at [27].
(b)assess the direct and indirect consequences of a conviction, where the Court is satisfied there is a ‘real and appreciable’ risk such consequences would occur;10 and
(c)determine whether those consequences are all out of proportion to the gravity of the offence.
[14] If the offender meets the s 107 threshold, the Court may go on to consider whether or not to exercise its residual discretion to discharge the offender under s 106. However, once the s 107 test is satisfied this will normally result in a discharge.11
[15] In the present case, Mr Narayan does not suggest that either the Judge or Community Magistrate applied the wrong test. Instead, it is submitted that the Judge ought to have reached different conclusions from applying the law to the facts. These issues do not meet the standard of involving a matter of general or public importance; that is, a question which has broad application beyond the circumstances of this particular case.12
Miscarriage of justice
[16] Mr Clearwater also submits that a miscarriage of justice is likely to occur if the appeal is not heard, because the existence of a conviction may influence or affect the likelihood of deportation, and this would be out of all proportion to the gravity of the offending because:
(a)the mitigating factors present are sufficient to reduce the gravity of the offending. These mitigating factors include: Mr Narayan’s guilty plea, remorse, assessment as a non-problematic drinker and continued abstinence and his good character, as well as the mitigating factors of
10 DC (CA47/13) v R [2013] NZCA 255 at [43].
11 R v Hughes, above n 7, at [12].
12 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.
the offence itself, namely that Mr Narayan was acting in a state of shock at serious family news;
(b)although the offending alone can trigger liability for deportation, the evidence from immigration expert Alastair McClymont concedes that the likelihood of Mr Narayan being served a deportation liability notice in circumstances where he has been granted a discharge without conviction will be possible, maybe even probable. However, with a conviction, the evidence is that there is a real risk Mr Narayan will not be able to apply for a further visa and will likely not be successful with any appeal against his liability for deportation. A discharge without conviction would give the appellant a solid basis for a request to the Minister of Immigration for a Special Direction cancelling any deportation liability; and
(c)the likely consequences that will be faced by third parties, namely the appellant’s family and employer. Mr Narayan’s wife and son joined him in New Zealand in 2019. Evidence from Mr Gibson, Mr Narayan’s employer states that he is a key member of staff and that there is a shortage of people experienced in stainless steel and aluminium fabrication in New Zealand. It is submitted there is a real likelihood that his company will face financial hardship if Mr Narayan is deported.
[17] The Crown submits that the Judge made no error that might have, or could result in a miscarriage of justice.
Did the District Court Judge over-estimate the gravity of the offending?
[18] I do not consider that either of the courts below made any identifiable error in their assessment of the gravity of the offending. Both the Community Magistrate and the Judge took the mitigating factors personal to Mr Narayan, and the circumstances
that led him to be driving at that time, into account. They noted the seriousness of drink driving, and the further factors that aggravated Mr Narayan’ offending.
[19] I do not consider there is a risk of a miscarriage of justice occurring on this ground.
Did the District Court Judge under-estimate the consequences of the offending?
[20] The Judge took into account the likely consequences of Mr Narayan’s inability to remain in New Zealand, but found that immigration decisions should be left to the immigration authorities. This is the usual and orthodox practice in the application of s 107.13 The Courts are traditionally reluctant to usurp the role of immigration authorities by pre-empting a deportation decision. As Asher J in Zhang v R put it:14
“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 any event, than where the query will be only as to prior convictions, for instance in an application for professional certification.”
[21] Rare exceptions may arise where an offender clearly establishes that deportation is likely because of the conviction, rather than because of their conduct, and will result in serious harm to their family unit.15
[22] I am satisfied these exceptions do not apply here. It is open to Mr Narayan to appeal to the Immigration Protection Tribunal if he becomes liable for deportation. The culpability of his offending is accurately reflected in the charge. Further, the other consequences advanced, as to the risks to his family and employer if he is deported, are factors that should be left for consideration by the immigration authorities. These factors were weighed in an orthodox manner in the decisions of the District Court. I do not find that there is a risk of justice miscarrying if Mr Narayan is not granted a second appeal.
13 Singh v R [2020] NZCA 411 at [14].
14 Zhang v Ministry of Economic Development HC Auckland CRI 2010-404-453, 17 March 2011 at [14]; confirmed in Ho v R [2016] NZCA 229.
15 Rahim v R [2018] NZCA 182 at [30]—[31].
[23] Thus in summary, I am not satisfied that a miscarriage of justice may occur unless the appeal is heard and it follows I refuse leave to appeal.
Result
[24]The application for leave to bring a second appeal is declined.
Moore J
Solicitors:
Mr Clearwater, Auckland Crown Solicitor, Auckland
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