Neeraj v Police
[2019] NZHC 263
•26 February 2019
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2018-441-38
[2019] NZHC 263
NEERAJ v
NEW ZEALAND POLICE
Hearing: 20 February 2019 Appearances:
J S Jefferson for Appellant
C C Gullidge for Respondent
Judgment:
26 February 2019
JUDGMENT OF CLARK J
Introduction
[1] When Mr Neeraj exited a petrol station on 10 September 2018 he checked for traffic coming from his right but did not see an 87 year old woman on the footpath, crossing the exit. His vehicle struck the woman who sustained resultant injury. Mr Neeraj was charged under s 38 of the Land Transport Act 1998 with operating a vehicle carelessly thereby causing injury.1
[2] Mr Neeraj applied for a discharge without conviction.2 In the District Court on 28 November 2018 Judge Mackintosh declined the application.3 Mr Neeraj
1 Maximum penalty three months imprisonment or a fine not exceeding $4,500 and mandatory disqualification from holding or obtaining a licence for six months.
2 Sentencing Act 2002, s 107.
3 New Zealand Police v Neeraj [2018] NZDC 24752.
NEERAJ v THE POLICE [2019] NZHC 263 [26 February 2019]
appeals that decision. He says the Judge erred in the application of the statutory test for a discharge without conviction and the consequences of a conviction are out of all proportion to the gravity of his offending.
Facts
[3] Mr Neeraj is a 21-year-old Indian National. He has been in New Zealand for three years, initially on a student visa. He attended Rotorua Lakes High School for two years and then Toi-Ohomai Institute of Technology where he obtained a New Zealand Certificate in baking (level 4). Thereafter, Mr Neeraj obtained employment with Pak’nSave. He worked there since April 2018 as a baker.
[4]On 10 September 2018 Mr Neeraj started work at 4 am. He finished at
12.30 pm. After work he picked up his niece from childcare and decided to stop at the Z service station on Kennedy Road to get something to eat. Having pulled into the service station he changed his mind about stopping and, he says, drove slowly across the forecourt.
[5] The police considered Mr Neeraj was effectively taking a shortcut although the Judge made no factual finding with regard to this point and it was not raised on appeal. Rather, the Judge accepted that when exiting the forecourt Mr Neeraj was checking to see if there was any traffic coming from his right and did not see the victim crossing the exit.4
[6] In his affidavit evidence for the District Court hearing Mr Neeraj described his shock at hitting the woman. He felt terrible for having done so. He could only imagine he was tired after a long shift and this affected his concentration.
Decision under appeal
[7] Judge Mackintosh observed the victim sustained quite serious injuries: a dislocated left finger, a fracture to her left ankle, a cut to her left thumb and a minor compression to the L1 section of her spine. As at September 2018, the date of her victim impact statement, the victim had to rely on a walker to get around comfortably.
4 New Zealand Police v Neeraj, above n 3, at [1].
Her left hand was in a cast and her left leg in a “moon boot”. She was unable to shower without help, could not cook and had to rely on family for support. While she had not been disadvantaged financially, she had been restricted physically and had not been able to sleep well since the incident.
[8] Judge Mackintosh then turned to s 107 of the Sentencing Act 2002 pursuant to which an offender may be discharged without conviction. Judge Mackintosh noted she had to be satisfied “the consequences of the conviction outweigh the seriousness of the offence”.5 The Judge observed no alcohol, or anything like that, was involved in the incident and noted as well Mr Neeraj’s willingness to participate in restorative justice but that did not take place.6 Mr Neeraj had good job prospects. When he originally applied for his work visa he had a conviction for drink-driving as a youth which seemed not to deter Immigration New Zealand (INZ) from exercising its discretion to grant Mr Neeraj a work visa.
[9] The Judge then addressed Mr Neeraj’s concern that his work visa would expire on 30 April 2019 and a conviction could prevent him obtaining a further visa. Judge Mackintosh took the view:7
… that it is ultimately a matter for immigration to decide and whilst there is some risk, I am not satisfied that the risk is so great that the discharge ought to be granted. So, the application is declined.
[10] Mr Neeraj was fined $400 and ordered to pay court costs of $130. He was disqualified from driving for the statutory minimum period of six months.8
The appeal
Appellant
[11] Mr Jefferson, counsel for Mr Neeraj, submitted the Judge did not apply the three-step process which the Court must engage in when considering an application to discharge without conviction under s 107 of the Sentencing Act 2000. Specifically,
5 At [9].
6 At [2].
7 At [10].
8 At [11].
the Judge did not identify the gravity of the offence, did not identify the direct and indirect consequences of conviction nor provide an analysis of why she concluded the consequences of a conviction are not disproportionate to the gravity of the offence. In those circumstances Mr Jefferson submitted the appeal court will undertake its own analysis de novo.9
[12] Mr Jefferson took no issue with the disqualification of six months but suggested an award of emotional harm reparation could be made pursuant to s 106(3)(b)(ii) in lieu of the fine and court costs imposed. More significantly, Mr Jefferson submitted the gravity of the offending in terms of Mr Neeraj’s culpability is low, yet the consequence of a conviction is that there is a real and appreciable risk Mr Neeraj will not be issued a character waiver by INZ and, in consequence, will not be allowed to continue working and will have to leave New Zealand.
Respondent
[13] Mr Gullidge, for the respondent, submitted the Judge was cognisant of the gravity of the offending and the direct and indirect consequences of conviction. In particular, Her Honour was correct in considering the impact of the conviction on the appellant’s immigration status was a matter for the immigration authorities.
[14] Mr Gullidge accepted the Judge erred by regarding herself as having to be satisfied that the consequences of the conviction outweigh the seriousness of the offence but that error resulted in no prejudice to the appellant given the test under s 107 is a stricter test than that applied by the Judge.
Approach to appeal
[15] Section 232 of the Criminal Procedure Act 2011 governs first appeals against conviction. A first appeal court must allow a first appeal under subpart 6 of the Criminal Procedure Act if satisfied that —
9 Citing Austin, Nichols & Co Ltd v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
…
(b)in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(c)in any case, a miscarriage of justice has occurred for any reason.
[16]In this context miscarriage of justice means:10
… any error, irregularity, or occurrence in or in relation to or affecting the trial that —
(a) has created a real risk that the outcome of the trial was affected; or
(b) has resulted in an unfair trial or a trial that was a nullity.
[17] With specific regard to applications for discharge without conviction under s 107 of the Sentencing Act the Court of Appeal has determined that a miscarriage of justice will have occurred “for any reason” if the Judge erred in applying the s 107 principles.11 The Court of Appeal also confirmed that a discharge without conviction is not a sentence and, conceptually, an appeal against the entering of a conviction is an appeal principally against conviction.12
Discussion
[18] In the course of the hearing I indicated my sympathy for Mr Neeraj’s position but, also, my preliminary view that I was inclined to dismiss the appeal because to do otherwise would be contrary to principle. Having reflected further on counsels’ helpful written submissions and oral argument, I am confirmed in that view.
[19]The three-step process which s 107 requires involves:
(a)assessing the gravity of the offence;
(b)identifying the direct and indirect consequences of a conviction; and
10 Criminal Procedure Act s 232(4).
11 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [12].
12 At [15].
(c)considering whether those consequences would be out of all proportion to the gravity of the offending.13
[20] Having undertaken these steps, the Court must consider whether or not to exercise its discretion to grant a discharge without conviction.
[21]In Police v Filipo Collins J described the process in this way:14
[53] The following four-stage process should be followed by a court when deciding whether or not to discharge a defendant without conviction. The first three of these steps give effect to s 107 of the Act. The final step involves the exercise of the residual discretion conferred upon sentencing judges by s 106 of the Act:
(1)First, the Court should consider the gravity of the offence. This involves the Court considering all the aggravating and mitigating factors relating to the offending and the defendant.
(2)Second, the Court should then identify the direct and indirect consequences of conviction for the defendant. This involves the Court evaluating all relevant information. The Court does not have to be satisfied that the direct or indirect consequences will inevitably or probably occur. It is sufficient if the Court is satisfied that there is a “real and appreciable risk” that the consequences will occur.
(3)Third, the Court must then consider whether the consequences are out of all proportion to the gravity of the offence.
(4)Fourth, if the Court determines that the consequences of a conviction are out of proportion to the gravity of the offence the Court must still consider whether it should exercise its discretion under s 106 of the Act to grant a discharge without conviction. Rarely, however, will the Court not exercise its discretion to grant a discharge without conviction when the criteria for a discharge in s 107 of the Act are satisfied.
[22] I do not agree that the Judge failed to properly apply the analytical steps. While the Judge did not go through the steps in a structured way she did address the gravity of the offending. On the one hand it was a low-level offence in terms of the maximum penalty of imprisonment being only three months.15 On the other hand the injuries to the victim were “quite serious”.16 The Judge referred also to factors which mitigated
13 Adams on Criminal Law (online looseleaf ed) at [SA107.01]–[SA107.02], commentary and the cases cited.
14 Police v Filipo [2016] NZHC 2573 at [53] (footnotes omitted).
15 New Zealand Police v Neeraj, above n 3, at [9].
16 At [2].
the offending, such as the fact no alcohol was involved, and the referral to restorative justice (even if that did not take place).17 Noting Mr Neeraj’s current employment the Judge considered his good job prospects and that he had spent some considerable time in training.18
[23] The Judge was manifestly cognisant of the potential consequences of conviction for Mr Neeraj, namely the risk that when faced with Mr Neeraj’s second conviction within a period of approximately 12 months, INZ may view Mr Neeraj as an unsuitable candidate for a work visa.19
[24] In considering (albeit erroneously) whether the consequences of the conviction outweighed the seriousness of the offence the Judge said she could not second-guess what immigration may do in relation to his work visa.20 I do not regard the Judge’s misstatement of the legal test as constituting an error resulting in a miscarriage of justice. Section 107 requires the Judge to be satisfied the consequences are “out of all proportion” to the gravity of the offending not merely that they “outweigh” the seriousness of the offending. Given the Judge could not reach a view about whether the consequences of the conviction outweighed the seriousness of the offence it is only logical to assume the Judge would likewise have been unable to satisfy herself that the consequences would be out of all proportion to the gravity of the offence, that threshold being so much higher. The Judge concluded that while there is some risk, the risk was not so great the discharge ought to be granted.
[25] I share the Judge’s assessment. As Mr Gullidge submitted in his detailed written submissions, should Mr Neeraj apply for a second work visa then, consistent with the Operational Manual which guides INZ in these matters, a character check will be carried out. Applicants who have been convicted of an offence punishable by imprisonment of three months or more will not normally be granted a temporary entry class visa unless they are granted a character waiver. The appellant is already required to apply for a character waiver due to his earlier conviction for driving with excess breath alcohol. The instant conviction for careless driving causing injury does not
17 At [2].
18 At [7].
19 At [4] and [9].
20 At [9].
change that requirement. One can only speculate about the approach INZ will take to the second conviction and the impact of the second conviction on any decision by INZ with regard to the grant of a character waiver.
[26] Referring to a decision of the Immigration and Protection Tribunal Mr Gullidge submitted it was not unlikely a character waiver would be granted.21 It is unnecessary for me to explore that argument as it takes me into the realm of mere speculation. While Judge Mackintosh considered there “is some risk”,22 ultimately, it is not possible to be satisfied there is a real and appreciable risk of adverse consequences for Mr Neeraj as a result of this conviction.
[27] To my mind, a key factor in the proportionality analysis is the fact that, even if discharged without conviction, Mr Neeraj is obliged to inform INZ of the careless driving charge. What INZ makes of that charge — or conviction — when considering the good character criterion, is a matter for INZ. The Court of Appeal has confirmed that where the circumstances of an applicant’s offending bear close scrutiny, it will be appropriate for the Court to withhold its opinion on the likely effect of a conviction as that is a question for the proper authorities.23 In this case that authority is INZ.
[28] Judge Mackintosh’s conclusion that, ultimately, it is for INZ to decide is in line with Court of Appeal authority.
[29]The appellant has not demonstrated error in the Judge’s approach.
[30]Before concluding I wish to record the following observations:
(a)Section 8 of the Land Transport Act requires those who drive vehicles to not drive them “carelessly or without reasonable consideration for other persons”. In looking to his right towards oncoming traffic (the traffic from the left being separated by a median strip) and not seeing the complainant crossing the exit, Mr Neeraj was careless and thereby fell short of the statutory standard in s 8.
21 Referring to Re (UI) (2017) NZIPT 204199.
22 New Zealand Police v Neeraj, above n 3, at [10].
23 R v Foox [2000] 1 NZLR 541, 17 CRNZ 216 (HC) at [39].
(b)When Judge Mackintosh observed that obviously one has to be very careful when driving, she did so in the course of acknowledging the submission that “this was really, simply a momentary lapse in concentration”.24 I accept Mr Jefferson’s submission that all Mr Neeraj has achieved in New Zealand stands to be lost by a moment’s inadvertence.
(c)I accept, as well, a further point which Mr Jefferson made with some tact and sympathy for the victim. A more robust citizen may not have suffered the level of injury suffered in this incident. This victim’s vulnerability may have tended to aggravate the offending.
(d)That Mr Neeraj was willing to engage in restorative justice is to his credit. From my review of the court file it appears pre-conference work was undertaken but a decision was made by a facilitator not to proceed.
(e)Importantly also, as I have mentioned, no alcohol or drugs were involved.
Result
[31]The appeal is dismissed.
Karen Clark J
Solicitors:
Crown Solicitor’s Office, Napier for Respondent
24 New Zealand Police v Neeraj, above n 3, at [7].
3
0