Patel v Police
[2024] NZHC 591
•20 March 2024
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2023-419-0072
[2024] NZHC 591
BETWEEN PARTH KANTIBHAI PATEL
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 12 March 2024 Appearances:
T J Conder and J McNally for the Appellant A Alcock for the Crown
Judgment:
20 March 2024
JUDGMENT OF ANDERSON J
This judgment was delivered by me on 20 March 2024 at 12:00 pm.
………………………………
Registrar/Deputy Registrar
Solicitors: Holland Beckett, Tauranga
PATEL v POLICE [2024] NZHC 591 [20 March 2024]
Introduction
[1] Mr Parth Patel is an Indian citizen. He has lived in New Zealand since 2014. He currently resides with his wife, and young New Zealand-born child. They are both on a temporary visa and are in the process of applying for permanent residence.
[2] On 5 September 2023, Mr Patel was convicted of two charges of indecent assault in the District Court at Hamilton following a guilty plea. His application for a discharge without conviction was declined by Judge B Crowley who sentenced him to three months’ home detention.1
[3] Mr Patel appeals. He submits that the Judge erred in declining his application for a discharge without conviction. He does so on the basis that the Judge assessed Mr Patel’s culpability at too high a level and the immigration consequences of a conviction are out of all proportion to the gravity of his offending. Alternatively, Mr Patel appeals against his sentence.
[4]Mr Conder for Mr Patel identifies three errors:
(a)That Mr Patel’s sentencing proceeded on an earlier version of the summary of facts that included aggravating features since deleted.
(b)The Judge was wrong to treat as aggravating certain statements made by Mr Patel in his pre-sentence reports, an assertion now buttressed by further evidence from Mr Patel’s counsellor that he seeks to have admitted on appeal.
(c)The Judge should have sentenced Mr Patel to a community-based sentence not to home detention in line with what he says was an informal sentence indication. This issue becomes immaterial if Mr Patel succeeds in his appeal against the refusal to discharge without conviction.
1 Police v Patel [2023] NZDC 19262.
[5] While not an error as such, Mr Conder also submits that new evidence Mr Patel seeks to admit on appeal on the immigration consequences changes the landscape for the assessment of the consequences of conviction, particularly as impacting his wife and their child.
[6] The Crown opposes the appeal. The Crown submits the Judge was right to decline Mr Patel’s application for a discharge without conviction and that the sentence imposed was well within the available range.
Discharge without conviction
[7] 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”.2 This involves establishing the gravity of the offending, the consequences of conviction and whether the latter are out of all proportion to the former.3 It remains open to the Court to decline to exercise its discretion to grant a discharge even if that test is satisfied.4
[8] An appeal against the refusal to grant a discharge without conviction is an appeal against conviction and sentence.5 The appeal must be allowed if a miscarriage of justice has or may have occurred due to a material error by the sentencing Judge or for any other reason.6
The facts of the offending
[9] Mr Patel was a manager at a pizza store. On 14 January 2022 the complainant was working at the store. She was 18, he was 31.
[10] The complainant began mixing dough to prepare pizza bases. She was assisted by Mr Patel. At one point, when the complainant stepped back to pause, Mr Patel approached her from her right side, reached out, grabbed and squeezed her right breast
2 Sentencing Act 2002, s 107.
3 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27]–[28].
4 At [27]–[28] citing Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [13].
5 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [7]–[8].
6 Rahim v R [2018] NZCA 182 at [6] citing Criminal Procedure Act 2011, ss 232(2)(c) and 250; and
Jackson v R, above n 5, at [12]–[13].
over her clothing with his hand. He let go after a few seconds. The complainant was stunned and requested he not do that.
[11] The complainant continued working the dough, trying to get on with her job, when, Mr Patel reached over to her a second time. He grabbed her right breast again, squeezing it and making a high pitched “ooh” noise. The complainant reacted immediately, told him she was leaving and left. She clocked out of the shift and left the store.
Procedural history
[12] Mr Patel pleaded not guilty and elected a judge alone trial. He then sought a sentence indication of whether he would receive a discharge without conviction. That was provided by Judge Crowley on 18 November 2022.7
[13] The Judge assessed the seriousness of Mr Patel’s offending as “at least moderate, or moderately serious offending.” The Judge noted that in the 10 months since the incident, Mr Patel had not sought any help, counselling or accepted he had a problem.8 The Judge considered this demonstrated that Mr Patel was not prepared to show any remorse or make amends.9 In the circumstances, the Judge said he would not discharge Mr Patel without conviction.10 He said that if Mr Patel pleaded guilty “at this stage all I could say that is in line with the authorities … I certainly would sentence you to a community-based sentence”.11
[14] The matter was adjourned until 1 February 2023 when Mr Patel pleaded guilty to the charges.
District Court decision under appeal
[15] At sentencing before Judge Crowley on 5 September 2023, Mr Patel sought a discharge without conviction. The Judge set out the facts based on the summary before
7 Police v Patel DC Hamilton CRI-2022-019-842, 18 November 2022.
8 At [14].
9 At [15].
10 At [18].
11 At [19].
him. He recorded that he had earlier considered the offending as “moderate to serious”.12
[16] The Judge referred back to his comments in the sentence indication that Mr Patel had not sought help or counselling nor undertaken any voluntary work.13 He noted that since then, Mr Patel had completed a “great deal” of community work and counselling. However, the Judge said he had to consider whether Mr Patel’s actions were genuine or whether he has simply done things with the aim of receiving a discharge without conviction.14
[17] On that issue, the Judge reviewed the pre-sentence reports prepared for Mr Patel. The cultural report obtained by Mr Patel relayed that Mr Patel was naïve in sexual matters and faced a situation “with a woman from another culture who was so lousy about sex-related matters to Mr Patel” and that his “momentary” lapse had landed him in grave trouble.15 The report recorded that Mr Patel was taking an appropriate counselling and educational programme to address the issues. It concluded that:
It appears to the writer that the underlying issues were the cultural differences. [Mr Patel] had never come across any woman talking to him so lavishly about sex matters before. No matter what he is fully remorseful of his actions.
[18] The Judge then discussed the independent pre-sentence report and a further report by the same writer when Mr Patel had asked to have a further interview with an interpreter. The first report in April 2023 referred to Mr Patel asserting that he had in fact just “grazed” the victim when he was asked to brush flour off her apron. Mr Patel also alleged that the complainant falsified the complaint in order to become store manager.16 When given an opportunity at the next interview in July 2023 to correct any statements, Mr Patel confirmed he had said the things written in the first report and nothing was untrue or misunderstood. He did say he wanted it to be known that despite he and his wife seemingly blaming the victim, he felt sorry for his actions.
12 Police v Patel, above n 1, at [9].
13 At [8].
14 At [12].
15 At [25].
16 At [31].
[19] The Judge referred to a signed a letter of remorse by Mr Patel. He viewed this as “completely at odds” with everything Mr Patel said to the report writers.17 The Judge held those factors aggravated the offending and he maintained his view expressed at the sentence indication that the offending was moderately serious.18
[20] As to the consequences of a conviction, the Judge acknowledged that the consequences would weigh heavily not just on Mr Patel, but on his wife and child also.19 The Judge referred to Mr Patel’s wife’s evidence (reflecting her understanding at that time) that if Mr Patel was deported, she would face an incredibly difficult decision as to whether to go back to India with him or stay in New Zealand and raise their child on her own.20 The Judge accepted that “both of those choices present enormous difficulties for her.”21
[21] The Judge accepted the evidence of Ms Jane Walker, an immigration expert, who provided an affidavit to the effect that if Mr Patel was convicted there was a heightened risk of him “facing a deportation notice or having to get a character waiver and having a significantly decreased chance of getting a character waiver.”22 The Judge viewed this as a potentially significant consequence to Mr Patel and his wife however did not view those consequences as out of all proportion to the gravity of Mr Patel’s offending.23 The Judge held:24
I do not consider this is a case where the Court should usurp the role of the immigration authorities and effectively shield criminal offending from them by not entering a conviction for it, particularly as I have already said in the context that Mr Patel as the matter progressed has taken an increasingly hard line to blame the victim for what has happened and ascribed dishonest and misleading motives to her for making up an allegation about him.
[22] The Judge then turned to the matter of sentence. He recorded that he had already said that he would consider a community-based sentence to be appropriate and that nothing he had read since changed his view.25 The Judge adopted a starting point
17 At [28].
18 At [31].
19 At [32].
20 At [32].
21 At [32].
22 At [35].
23 At [36].
24 At [36].
25 At [38].
of nine months’ imprisonment.26 He allowed a discount for Mr Patel’s guilty plea and previous good record,27 imposing a final sentence of three months’ home detention.28
Leave to adduce fresh evidence
[23] Mr Patel seeks leave to adduce further evidence in the form of a counselling report by Robert Jenkinson dated 12 October 2023 and an affidavit affirmed on 24 November 2023 from Rahul Sharma, an immigration adviser.
[24] The overriding consideration on whether to admit evidence on appeal is the interests of justice.29 It will be in the interests of justice to admit fresh evidence if the evidence is fresh, cogent and credible in relation to the appeal.30 Mr Conder emphasised that none of these criteria are binary or absolute. The stronger the further evidence is from the appellant’s point of view, and thus the greater the risk of a miscarriage of justice if it is not admitted, the more the Court may be inclined to accept that it is sufficiently fresh, or not insist on that criterion being fulfilled.31
Counselling evidence
[25] Mr Conder says that the counselling report provides insight into Mr Patel’s mental state and how he understands the offending. He says it adds context to statements interpreted by the Judge as victim-blaming, but which were an attempt by Mr Patel to explain his misinterpretation of the situation. Mr Conder submits that this evidence goes directly to the gravity of the offending and could not have been provided prior to sentencing given it relates to subsequent events (counselling Mr Patel undertook post-sentencing).
[26] The Crown opposes the admission of the evidence. It says Mr Patel had the opportunity to complete this counselling in the 18 months between the first call of the matter and sentencing.32 Further, the Crown submits the report only discloses three
26 At [39].
27 At [40].
28 At [41].
29 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [119].
30 R v Bain [2004] 1 NZLR 638 (CA) at [26] as endorsed in Noble v R [2010] NZSC 85 at [2].
31 R v Bain, above n 30, at [22].
32 Mark v R [2021] NZCA 121 at [16].
additional counselling sessions which would not have had any material impact on the sentence nor render the sentence imposed manifestly excessive.
[27] I do not admit this evidence. I agree that Mr Patel had several opportunities to provide material of this nature and indeed did so. In substance the report provides a further dialogue from Mr Patel to try to explain damaging previous comments. For reasons I will come to, the new evidence does not confront perhaps the worst aspects of Mr Patel’s comments. To the extent it addresses Mr Patel’s misinterpretation, even without the new report, I accept the proposition that Mr Patel was seeking to explain that he held genuine but wholly misguided views about the situation.
Immigration evidence
[28] The affidavit of Mr Sharma outlines the nature of the temporary visa that Mr Patel and his wife currently hold. I refer to the detail of the evidence below. It provides further evidence on the immigration consequences. Also provided after the appeal was filed is updating correspondence from Immigration New Zealand. This material confirms that the immigration consequences on Mr Patel’s wife are intertwined with her husband’s (she will lose residency if he does) and that having received a conviction, ordinarily Mr Patel will not be granted a permanent residence visa unless he receives a good character waiver.
[29] I admit this material on appeal. The communications from Immigration New Zealand are fresh, cogent and relevant evidence. Mr Sharma’s affidavit is not fresh, but I am satisfied it is in the interests of justice to admit all this evidence given the significance of the immigration consequences on the application for discharge.
Analysis
(a)The gravity of the offending
[30] The seriousness of offending in indecent assault cases cannot be determined solely by reference to the nature of the charge. That is because indecent assault encompasses a wide range of conduct from assault tantamount to sexual violation to a
fleeting touch.33 All indecent assaults are treated seriously by the courts but contact with the complainant’s genitalia or in proximity to the genitalia will obviously be regarded as more serious than, say, a non-consensual kiss on the complainant’s face.34
[31] The Judge characterised Mr Patel’s offending as “at least moderate, or moderately serious offending.” He said he based this view on the fact that it was a repeated indecent assault on a person Mr Patel was in a position of authority over and the age difference between them.35
Error one: wrong statement of facts
[32] It is common ground that the Judge had before him the wrong version of the summary of facts, which had not been redacted for material that had been agreed to be removed between the Crown and defence. Material that had been redacted featured in the Judge’s outline of the offending as outlined in italics below.
[4] The summary of facts states that the defendant began asking her personal questions about her relationships and dating almost immediately. He then while she was out on a delivery told her not to buy anything for her lunch and provided her with a meal when she got back. She began then mixing dough to prepare pizza bases. She was being assisted in that by the defendant. She stepped back and paused from that work and the summary states that the defendant approached from her right side, reached out and grabbed her right breast over her clothing with his hand and squeezed. The summary states that he grasped that for a few seconds before letting it go. The victim was stunned and asked him not to do that. The defendant laughed and began separating large dough balls. While handling the dough he commented to her: “This is what your tits feel like, nice and soft.” She did not respond.
[5] He asked her what words she knew in Hindi. She responded that she knew a few words. He asked her to repeat something in Hindi which she did not recognise and she refused to say. He told her that it meant in English: “Suck my dick.” He told her she still owed him for lunch and explained when the one other staff member who was present left they could go into the manager’s office and he could pay her back. The victim refused that and the defendant replied that he did not mean sex. He meant that she should suck his dick.
[6] She continued working and was trying to get on with her job. The defendant reached over and grabbed her right breast again squeezing it and mimicking her. She reacted immediately on the second occasion and told him that she was leaving. She clocked out of her shift and left the store at around 3 pm. She had been in the store for about an hour.
33 Edwards v R [2015] NZCA 583 at [9].
34 Rahim v R, above n 6, at [16].
35 Police v Patel, above n 7, at [11].
[7] She went next door to a dairy, knew the person who was working there and talked to that person, saying she was uncomfortable when the defendant followed her into the dairy. The defendant then telephoned her three times after she had left and during those calls he sent her a text saying that if she felt bad he was sorry and asking her to return his calls. He was spoken to and denied the allegations.
[33] The additional facts did not explicitly factor into the Judge’s assessment of the seriousness of the offending. Moreover, Mr Conder responsibly acknowledges that the offending is appropriately characterised as moderately serious. As the Crown emphasises, the offending involved touching an intimate area. Mr Patel was in a position of power over the complainant and there was a significant impact on her.
[34] However, I accept Mr Conder’s submission that the offending does present as less serious than as it presented to the Judge with the aggravating material included. Accordingly, while the offending is moderate, looked at on a continuum I agree that it is at the low end of moderate. The aggravating nature of the removed material is borne out in part by the Crown’s reliance on the deleted facts in its appeal submissions (before the error of using the wrong statement of facts was pointed out).
Error two: Mr Patel’s explanations were misconstrued
[35] Mr Conder’s second submission on the gravity of the offending is that the Judge misinterpreted Mr Patel’s explanation of his offending as “victim blaming” when he was trying to convey that he genuinely misinterpreted the situation. Mr Patel’s background is said to have led to a situation where he, entirely unreasonably, was misled about what was occurring.
[36] Mr Conder submits that while not exculpatory, this provides an explanation for Mr Patel’s conduct which makes him less culpable than an offender who does the same acts knowing full well the attention is unwanted. Mr Conder says that in assessing culpability, the intention of the defendant is the focus. This needs to be viewed apart from the acknowledged significant impact on the victim which separately weighs into the gravity of the offending.
[37] Mr Conder says that Mr Patel was misunderstood in seeking to convey this in the reports and hence the Judge erred in seeing Mr Patel’s explanations as aggravating.
This led him to discount Mr Patel’s remorse, rehabilitative steps and voluntary work when assessing the gravity of the offending and in the balancing step.
[38] I accept that Mr Patel’s intention has some relevance to culpability. I also accept the proposition that Mr Patel was trying to explain that he misinterpreted the situation, albeit that the way this was conveyed to, and/or by, the cultural report writer was offensive. Also, the Judge rejected Mr Patel’s explanation in part due to facts that were deleted from the summary he ought to have had.
[39] Notwithstanding all this, the Judge was not wrong to discount Mr Patel’s stated remorse. That is because as recently as July 2023, following the steps he was relying upon, Mr Patel had reaffirmed “his side of the story” to his pre-sentence report writer. This had included the assertions that the complainant had falsified the complaint and that he had only brushed the complainant. As well, while misinterpretation could potentially mitigate the gravity of the first incident of indecent assault, the complainant had immediately asked Mr Patel “that he not do that”, yet he reached for her a second time. The Judge regarded that as aggravating the offending.
[40] In summary then, the Judge was not wrong to discount Mr Patel’s remorse. I accept that the community work and counselling Mr Patel undertook counted for him, but this does not materially change the assessment. I accept that the corrected summary of facts does somewhat reduce the gravity of the offending. I characterise the overall gravity of offending as at the lower end of moderate. Mr Conder did not submit that it should be characterised any lower.
(b)Direct and indirect consequences of conviction
[41] The consequence identified by the Judge was the heightened risk of Mr Patel “facing a deportation notice or having to get a character waiver and having a significantly decreased chance of getting a character waiver” if convicted.36 Mr Conder submits that the likely consequences on Mr Patel and his family are severe.
36 At [35].
Immigration status
[42] Mr Patel and his wife hold temporary visas. They have applied for permanent residence which is in process with Immigration New Zealand.
[43] Mr Rahul Sharma is a director of Sharma Law in Hamilton. He has practised in immigration law for 18 years. Mr Sharma’s evidence on appeal is that Mr Patel and his daughter are joined in his wife’s application for a one-off 2021 residence visa. This was a simplified and fast-track residence pathway introduced to support migrants who helped New Zealand’s economy in the COVID-19 pandemic, and retained skills required by New Zealand.
[44] There is no option to sever Mr Patel’s application from that of his wife’s. The form of residency pathway is a one-off and will no longer be available for either of them if the present opportunity for a residency visa is lost. There will be no ability to re-apply.
Immigration consequences
[45] Immigration New Zealand applies “Immigration Instructions” to an assessment of a person’s application for a visa. These instructions record that a person will not be granted a permanent resident visa if they have been convicted of any offence of a sexual nature unless they receive a character waiver.37 Consistent with this, Mr Patel has been advised that a character waiver is now required in light of his conviction, and that processing will not await the outcome of appeal.
[46] An immigration officer must not automatically decline an application for a character waiver. Rather, the immigration officer must first record that the applicant falls into a category where a waiver is required. That turns on the fact of conviction.
[47] Second, the officer must then consider whether a waiver should be granted.38 At this stage the officer must consider the surrounding circumstances of the
37 Immigration New Zealand Operation Manual, A4.25.5(a)(iv).
38 A5.25.
application.39 These include the seriousness of the offence, how long ago the events occurred, whether the applicant has family in New Zealand, the extent of the applicant’s connections to New Zealand and whether the applicant’s potential contribution to New Zealand will be significant. An officer must only make a decision after they have considered all relevant factors including compliance with fairness and natural justice requirements.40 An unsuccessful applicant for a residence class visa has a right of appeal to the Immigration and Protection Tribunal.41
[48] Mr Patel is also liable to deportation. By section 157 of the Immigration Act 2009 a temporary entry class visa holder is liable for deportation if the Minister determines that there is a “sufficient reason”. This is defined to include, among other things, “criminal offending” and “other matters relating to character.”
[49] Issue of a deportation liability notice (DLN) is not automatic.42 Immigration New Zealand prepares a briefing paper for the Minister (or his or her delegate) for the decision-maker to consider whether a DLN should be served.43 As part of this process, immigration officials give the visa holder an opportunity to be heard and make submissions.44 Submissions can canvass issues about the gravity of offending, personal circumstances and the impact for them of deportation.45
[50] If a DLN is issued, there is a right to appeal to the Immigration and Protection Tribunal on humanitarian grounds.46 Such an appeal has a very high threshold. As relevant, it requires the Tribunal to be satisfied that there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant be deported from New Zealand. The Minister also retains an overriding discretion under s 172 of the Act to cancel a person’s deportation liability or to suspend it for a period of no more than five years.
39 A5.25.10.
40 A5.25.10(d).
41 Immigration Act 2009, s 187.
42 Truong v R [2023] NZCA 97 at [48] citing Zhu v R [2021] NZCA 254 at [12].
43 At [48].
44 Bolea v R [2023] NZCA 39 at [12] citing Zhu v R, above n 42, at [12] and [24]; and Anufe v Police
[2021] NZCA 253 at [12] and [19].
45 At [12].
46 Immigration Act, ss 157(4) and 206(1)(b).
[51] The evidence filed on behalf of Mr Patel from both Mr Sharma and another immigration specialist, Ms Walker, includes assessments of the likely outcomes for Mr Patel concerning his visa application and risk of deportation.
[52] Ms Walker deposed that while s 157 refers to “criminal offending” as the trigger for a deportation, in practice it is the conviction that triggers Immigration New Zealand to issue a DLN. She says that in her experience, if a person is discharged without conviction, it is extremely unlikely that a DLN would be issued. She refers to instances where clients with relatively serious offending did not have a conviction entered and a DLN was not served. Conversely, in her experience, clients with offending at the bottom end of the scale are served with a DLN as soon as a conviction is entered.
[53] She says that while a discharge without conviction could result in a DLN on the basis of “other matters relating to character” based on the conduct, she says the risk of a DLN being issued is far higher if there is a conviction.
[54] In a case of two convictions for indecent assault, Ms Walker considers a DLN is highly likely to be issued. If a DLN is issued the prospects of this being cancelled or for a successful appeal on humanitarian grounds are very unlikely, despite Mr Patel’s personal situation. Mr Sharma confirms Ms Walker’s views on the prospects of a DLN being issued and the low chances of this then being cancelled or a successful humanitarian appeal.
[55] Ms Walker says that putting aside a DLN, Mr Patel would likely be declined a character waiver in a visa application. Similarly, Mr Sharma deposes that if Mr Patel’s convictions are upheld, there is a high likelihood that Immigration New Zealand will decline his residency application due to non-compliance with good character requirements.
Analysis of consequences of the offending in the context of the case law
[56] Here, the statutory trigger for Mr Patel’s deportation liability is “criminal offending”. This may be contrasted with cases under s 161 of the Immigration Act where the trigger is “conviction”.
[57] Even where the trigger is “conviction”, the fact that there is an opportunity to persuade Immigration New Zealand not to issue a DLN (in the case of deportation) usually means that the Court will characterise the immigration consequences as flowing from the offending not the conviction. For example, in Truong v R, in refusing a discharge without conviction, the Court of Appeal held:47
[52] In our view the process by which the appellant will have an opportunity to make submissions regarding whether her deportation should proceed, which will be considered by the Minister before a decision is made as to whether a deportation liability notice is to be served on her, is significant. The appellant will have an opportunity to put her whole history before the Minister for his or her consideration and explain her concerns regarding the impact that her deportation would have on her and her children. While the imposition of the convictions has the effect of involving the appellant in the process by which the Minister will determine whether or not to proceed with service of a deportation liability notice on her, and that process gives rise to a real and appreciable risk of her deportation, before a decision to proceed with deportation is made, the Minister is required to consider any written submissions made by the appellant, and to also consider whether to cancel or suspend the appellant’s deportation liability so that deportation does not necessarily follow. The Minister can be expected to take all relevant considerations into account in making his or her decision.
[58] Similarly, while conviction is the trigger for needing a character waiver in a visa application, the ability to make submissions to Immigration New Zealand on whether this should be granted is usually regarded as severing the link between the conviction and its consequences.48
[59] That approach is not absolute. Appeals against discharge without conviction have been successful on the grounds of immigration consequences in cases where there is a high risk of serious impacts on a family unit, although generally in context
47 Truong v R, above n 42. In dismissing an application for leave to appeal the Supreme Court regarded the outcome as not turning on principle but on the evidence (Truong v R [2023] NZSC 119 at [9]–[11]).
48 Ho v R [2016] NZCA 229.
of offending at the low end.49 It has also been recognised that sometimes even the consequence of exposure to the scrutiny of Immigration New Zealand would be undue. Those cases will usually involve offending which is not a serious example of its kind, not intrinsically serious and in which there are substantial mitigating factors.50 However, Singh v R is a case where the defendant did not challenge that the offending was “moderate or just above moderate” yet on appeal a discharge was ordered on the basis of comprehensive specialist evidence as to the real risk of deportation and the effects for his daughter if Mr Singh was deported.51 I return to this below in the proportionality exercise.
[60] On the facts of this case, Mr Patel’s conviction is the trigger for the need for a character waiver in his application for a residence visa. In that event, the immigration authorities will consider Mr Patel’s specific circumstances as to whether to grant the waiver, including the impact on his family. However, the evidence before me is that he is unlikely to obtain this.
[61] If Mr Patel is not granted a character waiver, he will not obtain residence and neither will his wife. The residence pathway available to them under the 2021 residence visa was one-off and no other applicable pathway applies to them. In my view, even the exposure to that risk is a significant consequence. It distinguishes the current case from many others, particularly for its effect on Mr Patel’s wife.
[62] Separately, Mr Patel’s “criminal offending” (as opposed to the conviction per se) exposes Mr Patel to liability to deportation. If Immigration New Zealand propose to issue a DLN, they will first seek input from him and have a discretion whether to issue the notice. If a DLN is issued there is an appeal available on humanitarian grounds. The evidence before me is that a DLN is highly likely to be issued, and if so, Mr Patel’s circumstances would not justify a humanitarian appeal.
49 See, for example, Rahim v R, above n 6; R v Tang [2019] NZHC 2056; and Bong v R [2020] NZCA
94. As the Court of Appeal said in Sok v R [2021] NZCA 252, at [50], the intervention of the Court does not mean, as the Judge said here, that the role of the immigration authorities is otherwise usurped. “It is more accurate to say that legislative policy decisions and statutory powers and processes may not only establish consequences for an offender but also determine whether those consequences are the product of a conviction and influence the proportionality assessment.”
50 Truong v R, above n 42, at [54].
51 Singh v R [2023] NZCA 665.
(c)Proportionality assessment
[63] The Crown submits that this case is similar to Mohammed v R where the consequence of liability to deportation was held to be a consequence of the offending rather than the conviction.52 The Crown submits that the consequences of the convictions in this case are not more than those to be expected of someone who offends in the way that Mr Patel did. I disagree.
[64] Against offending at the lower end of moderate seriousness, Mr Patel’s wife risks the loss of her one-off pathway for permanent residence as a consequence of Mr Patel’s conviction. Based on the evidence before me the likelihood of that occurring is high. Whereas usually the defendant’s partner faces a choice to stay or leave with their partner (which itself is a significant consequence), the prospect for Mr Patel’s partner is even more severe. I accept that this risk itself is a consequence out of all proportion to Mr Patel’s offending.
[65] Moreover, the interests of Mr Patel’s two-year-old child are relevant here.53 She was born in New Zealand and is settled here. The affidavits filed suggest that it will not be easy for the family to settle back in India and the greater advantages Mr Patel and his wife saw for raising a family here remain.
[66] On the particular facts here, I have concluded that a discharge without conviction is the appropriate response in light of the new evidence on appeal. That is not in any way to minimise the impact of the offending on the complainant. It reflects my view that Mr Patel’s wife and their child should not be exposed to the fallout from Mr Patel’s offending.
Sentence appeal
[67] Mr Patel’s alternate appeal was against his sentence of three months’ home detention. Mr Conder submitted the sentence imposed was manifestly excessive because Mr Patel relied on the Judge’s informal sentence indication that he would impose a community-based sentence, home detention not being a community-based
52 Mohammed v R [2023] NZCA 119.
53 Singh v R, above n 51, at [21] and [24].
sentence. Because I have upheld the appeal on the discharge without conviction, I need not address the sentence appeal.
Result
[68]The appeal is allowed.
[69]The convictions are quashed.
[70] The appellant is discharged without conviction under s 106 of the Sentencing Act 2002.
Anderson J
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