Pio v Police

[2021] NZHC 2248

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-292

[2021] NZHC 2248

BETWEEN

AUKUSO PIO

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	On the papers
Counsel:	P K Hamlin and A J Gordon for Appellant F E Gourlay for Respondent
Judgment:	30 August 2021

JUDGMENT OF WHATA J

This judgment was delivered by me on 30 August 2021 at 1.00 pm.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           Meredith Connell, Auckland

PIO v POLICE [2021] NZHC 2248 [30 August 2021]

[1]    Aukuso Pio appeals against conviction and sentence on one charge of assault with intent to injure.1 He was convicted and sentenced to three months’ community detention and ten months’ supervision.2 His appeal was filed out of time, but the Crown takes no issue with that. I grant leave to file out of time accordingly.

[2]    The substantive matter can also be dealt with succinctly. Mr Pio pleaded guilty not realising that his conviction could trigger his deportation from New Zealand. He did not receive legal advice in respect of this important fact. It is apparent from the available evidence that had Mr Pio been given the relevant advice, he would not have pleaded guilty without advising the Court of his intention to apply for discharge without conviction.3

[3]    Ms Gourlay, for the Crown, agrees deportation is a relevant matter going to the entry of the conviction and the sentencing Judge was not given the opportunity to consider a s 106 application. On that basis, the Crown does not oppose the appeal against conviction, and submits that the matter be sent back to the District Court for Mr Pio to confirm his guilty plea and apply for a discharge without conviction. An alternative approach is to allow the appeal and consider an application for discharge without conviction pursuant to s 106 in this Court. But Mr Hamlin, for Mr Pio, agreed that is problematic insofar as this Court would still be acting in its capacity as the first appeal Court, rather than a first instance Court. This, among other things, has implications for rights of appeal. Mr Hamlin was therefore happy for the matter to be referred back to the District Court.

[4]    Given the consensus reached about the proper outcome, and in view of the risk of deportation, I am content to allow the appeal, quash the conviction and refer the matter back to the District Court for reconsideration. This approach is supported by authority dealing with the entry of guilty plea on a mistaken or misinformed basis.4 In Whichman v R, the Court of Appeal identified the following thresholds apply to an

1      Crimes Act 1961, s 193. Maximum penalty three years’ imprisonment.

2      Police v Aukuso Pio [2020] NZDC 27539.

3      Sentencing Act 2002, ss 106 and 107.

4      Whichman v R [2018] NZCA 519 at [38].

appeal based on trial counsel error in advising as to sentence, all of which must be satisfied before a Court should vacate a guilty plea and quash the resulting conviction:5

(a)first, the advice given was erroneous;

(b)secondly, there is or was a genuine prospect of acquittal at trial had the plea not been entered; and

(c)thirdly, there is credible evidence that but for the erroneous advice, the guilty plea would not have been entered.

That Court also noted that the appellate court should “not overanalyse the merits of available defences” as this “risks eroding the essential responsibility of a first appeal court under s 232(4) of the Criminal Procedure Act 2011 to concern itself with whether the error resulted in a miscarriage of justice because it ‘created a real risk that the outcome of the trial was affected’.”6

[5]    While this is not a case of erroneous advice, it is a clear case of a guilty plea given and conviction entered on an uninformed basis and it is common ground that the risk of deportation is a relevant consideration for the purpose of an application for discharge without conviction. The process has gone wrong, and accordingly the proper outcome is to allow the appeal. Usually the guilty plea is vacated at the same time as a conviction is quashed. Mr Hamlin confirms, however, Mr Pio does not seek to have his plea vacated. Rather, Mr Pio will simply be making an application under s 106 of the Sentencing Act in the District Court.

[6]    On the basis of the foregoing, I allow the appeal and refer the matter back to the District Court for purpose of enabling Mr Pio to apply for discharge without conviction.

5 Above n 4, at [41].

6 At [41].