Police v Dsouza

[2018] NZHC 1317

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2018-443-8

[2018] NZHC 1317

BETWEEN

NEW ZEALAND POLICE

Appellant

AND

WILFRED LAWRENCE DSOUZA

Respondent

Hearing:	29 May 2018
Counsel:	S J Simpkin for Appellant M S Boyd for Respondent
Judgment:	6 June 2018

JUDGMENT OF THOMAS J

[1]    In April 2017, the appellant, Wilfred DSouza, assaulted his wife using an electrical cord as a weapon.1 Almost a year later, following significant counselling (both alone and with his  wife),  restorative  justice  and  with  his  wife’s  support, Mr Dsouza was discharged without conviction.2 The police now apply for leave to appeal that decision.

Factual background

[2]    At about 7 pm on 19 April 2017, Mr DSouza arrived home after fishing and drinking with friends to find Mrs DSouza had locked her bedroom door following her night shift, working as a nurse. Mr DSouza banged on the door and broke the lock. He snapped his glasses and held the lens to his stomach, threatening to harm himself and to tell the police she had stabbed him. She told him to leave and said he was

1      Crimes Act 1961, s 202C, maximum sentence five years’ imprisonment.

2      Police v DSouza [2018] NZDC 4554.

POLICE v DSOUZA [2018] NZHC 1317 [6 June 2018]

“zero”, meaning he contributed nothing to her life. He began hitting her with his open hand. The summary of facts states he picked up an ironing board and attempted to hit her with it but there is some dispute about whether this happened or not. Mr DSouza picked up an electrical extension cord and began repeatedly hitting Mrs DSouza with it, primarily making contact with her legs and hands. He threatened her with the plug end and tried but failed to hit her with it. Mrs DSouza attempted to protect herself by wrapping up in a blanket. She called a friend for help. The summary of facts states Mr DSouza threatened to plug in an iron and burn her with it but she managed to unplug it. This is also disputed. Mr DSouza continued to hit Mrs DSouza until the friend arrived and stopped him.

[3]    Mrs DSouza received a number of serious welts and bruises to her legs. In her victim impact statement, she said she felt anxious and depressed and suffered low self- esteem because of the way her husband treated her. She said she initially did not want to be with him after the assault but has since changed her position. He is, she says, a wonderful person who is involved with the church and a good father to their child. Without his help, she struggles to care for their child.

[4]    Mr and Mrs Dsouza separated for a period after the assault. During this time, Mr DSouza held prayer and meditation sessions with a local priest and with a priest in Opunake. He has since had family counselling in India with members  of his and  Mrs DSouza’s families. He has undertaken a pilgrimage to a holy place in India and shaved his head as a religious sacrifice to signify giving up false ego and pride. That ceremony included apologising to Mrs DSouza.

[5]    Mr DSouza attended a restorative justice session with Mrs DSouza and support persons in September 2017. Although he accepted responsibility, agreed his actions were wrong and said he was determined not to repeat them, there was some minimisation of his offending.

[6]    Mr and Mrs DSouza undertook couples’ counselling. Mr DSouza has attended several individual counselling sessions as well. Letters indicate Mr and Mrs DSouzas’ relationship has improved and that they are communicating better to work out their differences in a more respectful manner.

District Court decision

[7]    The District Court Judge outlined the  offending.  He  noted  the  injuries Mrs DSouza suffered were not permanent. He referred to her initial victim impact statement and the updated one, reflecting Mr DSouza’s efforts to make amends and her desire to provide a better future for the family together. Although he assessed the gravity of offending as serious, he noted the efforts Mr DSouza had made following the offending which the Judge found amounted to doing “all you could possibly do to put things right”.

[8]    The Judge found the consequences of a conviction were not absolutely certain but were “dire”. This included that Mr DSouza’s immigration status would be vulnerable if he were convicted. While Mrs DSouza has residency status, at the time of the offending Mr DSouza was on a temporary work visa. Following the offending, Immigration NZ granted Mr DSouza a one-time only six month visa which allowed him to continue working until the outcome of the case. That expired on 2 March 2018, seven days before the Judge’s decision. Mr DSouza is now in the country unlawfully pending determination of his visa application, which will not take place until the expiry of all appeal periods. If convicted, he would have to apply for a character waiver. Immigration NZ guidelines state that the surrounding circumstances of the application must be taken into account when deciding whether or not they are compelling enough to justify waiving the good character requirement.

[9]    The Judge concluded the consequences of a conviction were out of all proportion to the gravity of the offending. He did not expressly undertake a s 106 analysis as to the residual discretion but granted a discharge without conviction.

Grounds of appeal

[10]The police seek leave to appeal on the following questions of law:

(a)Did the Judge err in his assessment of the gravity of the offending?

(b)Did the Judge err in failing to have regard to the general principle that, as a matter of public interest, a sentencing Judge ought not to usurp the function of the immigration authorities?

(c)Did the Judge err in finding the consequences of a conviction would be out of all proportion to the gravity of the offending?

(d)Did the Judge err in failing to recognise the existence of a discretion under s 106 of the Sentencing Act 2002, even where the s 107 test is met?

Law

Leave to appeal

[11]   The appeal proceeds by way of s 292 of the Criminal Procedure Act 2011, which relevantly provides:

292     Right of appeal

(1)This section applies if a person has been charged with an offence.

(2)The prosecutor or the defendant may, with the leave of the first appeal court, appeal under this subpart to that court on a question of law against a ruling by the trial court.

(3)The question of law in a first appeal under this subpart must arise—

(a)in proceedings that relate to or follow the determination of the charge; or

(b)in the determination of the charge (including, without limitation, a conviction, an acquittal, the dismissal of the charge under section 147, or a stay of prosecution).

…

[12]   Questions of law in the context of subs (2) must raise one or more of the following three errors:3

(a)a misdirection of law apparent in the decision … ;

3      Brown v R [2015] NZCA 325, (2015) 30 FRNZ 471 at [16], citing Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [25]–[26]; and Vodafone New Zealand Ltd v Telecom New Zealand Ltd [2011] NZSC 138, [2012] 3 NZLR 153 at [51]–[52].

(b)oversight of a relevant matter, or consideration of an irrelevant matter; or

(c)a factual finding unsupported by any evidence, or an omission to draw an inference of fact which is the only one reasonably possible on the evidence.

Discharge without conviction

[13]   A discharge without conviction involves a proportionality test. It is not a matter of discretion but a matter of fact requiring judicial assessment.4 Adams on Criminal Law dismisses suggestions that the test for a discharge is a stiff one, only available in exceptional or extreme circumstances or used sparingly, on the basis that it is a factual assessment – disproportionality is either made out or it is not.5

[14]   The Court of Appeal in A (CA747/10) v R set out a three step-approach to s 107 assessments:6

[22]     Section 107 codifies the common law criteria for a discharge without conviction and requires a three-step process:

(a)Identify the gravity of the offending by reference to the particular facts of the case;

(b)Identify the direct and indirect consequences of a conviction; and

(c)Determine whether the direct and indirect consequences of conviction would be out of all proportion to the gravity of offending.

[15]   The fourth step under s 106, if the Court determines the consequences are out of all proportion to the gravity of the offence, is to consider whether it should exercise its discretion to grant a discharge without conviction. Rarely will a Court not exercise its discretion to grant a discharge without conviction when the criteria for a discharge under s 107 are satisfied.7

[16]   An appeal against a refusal to grant a discharge without conviction proceeds as both an appeal against sentence and an appeal against conviction.8 It is therefore

4      R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [10]–[11]; and H (CA680/11) v R [2012]

NZCA 198.

5      Adams on Criminal Law (online ed, Thomson Reuters) at [SA107.01].

6      A (CA747/10) v R [2011] NZCA 328 (citations omitted).

7      Police v Filipo [2016] NZHC 2573 at [53(4)].

8      Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144.

subject to standard appellate principles when a factual matter is being assessed on appeal.9

Analysis

Did the Judge err in his assessment of the gravity of the offending?

[17]   The question as posed is not a question of law. The submissions under this heading allege an ambiguity in the Judge’s final finding on gravity and whether it was appropriate to place significant weight on Mr DSouza’s post-offending steps when there were indications in his affidavit that he continues to minimise his offending. The police submit the Judge suggested domestic violence may have been acceptable in India and that minimised the seriousness of the behaviour. The police also submit the Judge erred in taking into account as a mitigating factor that Mr DSouza had been drinking.

[18]   It is clear from his decision the Judge found the gravity was serious but reduced to some degree by Mr DSouza’s subsequent efforts to make amends. That is a relevant consideration and the only aspect which might arguably be in error is the weight given to it. It does not, given the lengths Mr DSouza went to, amount to a misdirection on the law or otherwise make out a question of law.

[19]   I do not accept the Judge minimised the offending when making reference to how such conduct might be treated in India. The Judge was emphasising how seriously domestic violence is considered in New Zealand. Nor do I accept the suggestion Mr DSouza’s drinking was taken into account so as to render it a material error in the assessment of the gravity of the offending. It was a brief reference in the context of outlining the circumstances.

[20]   The approach to considering the gravity of the offence is to consider all the aggravating and mitigating factors relating to the offending and the offender.10 The

9      Kumar v Police HC Wellington CRI-2010-404-140, 17 June 2010 at [12], applying Anton, Nichols and Co Inc v Stitching Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

10     A (CA747/2010), above n 6; and Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142.

Judge approached the consideration of the gravity of the offending correctly. His conclusion cannot be considered to be plainly wrong.

Did the Judge err in failing to have regard to the general principle that, as a matter of public interest, a sentencing Judge ought not to usurp the function of the immigration authorities?

[21]   This may be a relevant question of law in that, if the Judge had so failed to have regard to a relevant principle, he would have misdirected himself on the law. The police submit that discharges without conviction should not be given merely because of difficulties with immigration11 and to do so would be usurping the authority of Immigration NZ.12 Further, the police submit the Judge overstated the significance of the consequences to Mr DSouza and that there is no real and appreciable risk he will be deported.

[22]   I am not persuaded the Judge misdirected himself on the law in this regard. He correctly stated the principle when outlining the police submissions. He then went on to say he had considered Mr DSouza’s position in relation to his visa and what was to be considered by the immigration authorities. The Judge was alive to the law and made an appropriate assessment in light of it. Further, I note this is not a case of concealing his offending from the appropriate authorities because Immigration NZ is already aware of these proceedings.13

[23]    The test is whether the consequences of a conviction would be out of all proportion. In this case, Mr DSouza has gone to considerable efforts to make amends and rehabilitate himself, which reduces the gravity of his offending. The consequences for Mr DSouza would be significant. They include the need to obtain a character waiver and, if he cannot, he will be unable to obtain a working visa and will be parted from his family. The fact that Mr DSouza would be able to find work in India, as submitted by the police, does not diminish the harm which would be caused by being in India without his wife and child. It is inappropriate to assume Mrs DSouza would give up her New Zealand residency, leave her employment and social network in

11     Solicitor-General v Mohib [2016] NZHC 1908 at [50].

12     Ji v R [2015] NZCA 308 at [49].

13     Solicitor-General v Singh [2017] NZHC 255 at [37].

New Zealand, and disrupt her child’s life to the extent that the Court can discount the likelihood of separation. Applying the “real and appreciable risk” test, I am not persuaded that the Judge was wrong in finding the consequences were made out as required.

[24]   The Judge did not materially overstate the significance of the consequences of a conviction. He assessed them as “dire” in the context of possible deportation and separation from his family.

Did the Judge err in finding the consequences of a conviction would be out of all proportion to the gravity of the offending?

[25]   This also is not a question of law. The Judge’s comments indicate the assessment weighed in favour of finding the consequences were out of all proportion to the gravity of the offending. I find no error in the Judge’s assessment in this regard.

Did the Judge err in failing to recognise the existence of a discretion under s 106 of the Sentencing Act 2002, even where the s 107 test is met?

[26]   A failure to consider a step in a legal test is an error of law. It is not clear on the face of the judgment whether the Judge took this into account or not. While it is preferable to state expressly when one is exercising a residual discretion, failure to do so does not mean a Judge has failed to turn his or her mind to it. I note the residual discretion in s 106 would rarely be exercised against the interests of a defendant who had made out the s 107 test. It is therefore understandable that the Judge did not expressly refer to the discretion, particularly in circumstances where he had found the s 107 test clearly made out.

[27]   If the Judge did not turn his mind to the discretion under s 106, I am not persuaded it ought to have been exercised in any other way.

Result

[28]   For the reasons given, leave to appeal is refused. In any event, there was no error in the Judge’s approach and the appeal is dismissed.

Thomas J

Solicitors:

Crown Solicitor’s Office, New Plymouth for Appellant Boyd Law, New Plymouth for Respondent