R v Police HC Wellington CRI-2008-485-113
[2009] NZHC 57
•4 February 2009
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2008-485-113
R
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 11 November 2008
Counsel: S Insley for Appellant
F Moraes for Crown
Judgment: 4 February 2009
JUDGMENT OF JOSEPH WILLIAMS J
[1] On 10 September 2008, R was convicted on a charge of burglary in the District Court at Porirua. His counsel sought a discharge without conviction under s 106 of the Sentencing Act 2002. This application was declined. Mr R now appeals against that conviction.
Background
[2] The facts are as follows.
R V NEW ZEALAND POLICE HC WN CRI-2008-485-113 4 February 2009
[3] Mr R was at a family gathering when, with three other people at the gathering, he went to the storage premises of a business at which he was formerly employed. He knew how to bypass whatever security arrangements were in place at the storage facility and, together with his associates, he stole four Mag wheels valued at $800.
[4] All four were apprehended at the site by a passing police patrol. When the matter came before the District Court an arrangement was made whereby the charges would be dropped against the other three defendants in return for a guilty plea from Mr R . Matters proceeded on that basis although I note in passing that there is no record on the file of Mr R ’s guilty plea. Counsel for Mr R understandably did not wish to take this matter further.
[5] It is clear that both Mr R and his counsel had heightened expectations of a s 106 discharge because when the matter came before the Court on 27 August 2008 the Judge then presiding indicated that he would be prepared to grant a s 106 discharge provided there was confirmation of community work, a letter of apology, and a receipt for a charitable donation. Although the Judge also indicated that he could not finally dispose of the matter because the position of the police had not at that stage been clarified and the matter was remanded to a later date. When the matter finally did come up for sentencing on 10 September 2008 a different Judge took a different view of matters.
[6] A key argument for Mr R on sentencing was that he and his parents and four siblings were in the country on work permits and the Immigration Service had invited the entire family to apply for residency under the Skilled Migrant category. This requires evidence of good character including (I understand) certification by the police that the applicants have no convictions. Counsel for Mr R submitted in the District Court that a residency permit would not normally be issued to the applicant if convicted of a dishonesty offence and therefore that the consequences of a conviction would far outweigh the gravity of the offence.
[7] Mr R duly undertook the community work, provided a letter of apology and indicated a preparedness to pay a donation of $200 to a charity if called upon to
do so. At the hearing, the police opposed (as they did before me) a discharge without conviction primarily because of the seriousness of the offending. The learned Judge accepted the police submission. He considered (rightly in my view) that the seriousness of the offending was aggravated because of the breach of trust inherent in the fact that Mr R used insider information to gain access to the premises. Secondly, he considered that the offending was not spontaneous but planned and that Mr R and his associates entered the premises on two separate occasions to procure the four Mag wheels. I do not think the learned Judge was right to conclude there were two entries but I do not think that factor was decisive so I will not consider that further.
[8] Against those factors contributing to seriousness, the learned Judge considered that any impact of a conviction on Mr R ’s immigration status was too speculative. It was, he considered, not a foregone conclusion that a conviction would result in him being denied residency or citizenship. On that basis, he considered that the consequences of a conviction would not be out of all proportion to the gravity of the offence in accordance with the test contained in s 107 of the
2002 Act.
[9] Counsel for Mr R pressed similar arguments before me on appeal. For the Crown, Ms Moraes argued that the learned Judge had carefully weighed relevant factors and come to a proper conclusion.
[10] In my view the only matter capable of serious argument on appeal is the issue of the effect of conviction on Mr R ’s immigration status and I will focus the remainder of my comments on that question.
[11] The statutory test is contained in s 107 of the Act. It provides:
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.
[12] The direct consequence of a conviction is that it will be more difficult for Mr R to obtain residency in New Zealand on the expiry of his work permit. The Immigration New Zealand Operational Manual provides that applicants for a
residence Visa or permit must be of good character (A5.15). Applicants who have been convicted at any time of any offence involving dishonesty or who are convicted of an offence while holding a temporary permit will not normally be eligible for a residence Visa or permit unless granted a character waiver (A5.25(c) and (f)).
[13] Visa and Immigration officers must not automatically decline residence applications on character grounds but officers must consider the surrounding circumstances of the application to decide whether or not they are compelling enough to justify waiving the good character requirement. Such considerations can include:
a) The seriousness of the offence;
b) The number of offences;
c) How recent the offending was;
d)Whether the applicant has any immediate family lawfully and permanently in New Zealand;
e) Whether the applicant has a strong emotional or physical tie to
New Zealand;
f) Whether the applicant’s potential contribution to New Zealand will be significant.
[14] The Immigration Manual makes it clear that a waiver is not impossible to obtain. Counsel for Mr R obtained data under the Official Information Act. It indicates that good character waivers were granted as follows:
Year
Number of Applications Granted
2004 316 2005 430 2006 443 2007 635 2008 401
[15] The letter from the New Zealand Immigration Service rather candidly indicates that the “information is not particularly accurate and does not provide a true picture of the applications where a character waiver was granted”. On that basis, the best we can say is that the number of waivers granted is in the hundreds rather than dozens.
[16] As I have said, the direct consequence is that it will be more difficult for Mr R to obtain a residence permit but clearly not impossible. The Immigration Service will be required to take into account not just the negative considerations in this case (the nature and timing of the offending) but also the fact that Mr R has family in New Zealand who would – I assume given that the Immigration Service invited the applications – receive residence permits in due course.
[17] The indirect consequence of this offending is, in the event that a waiver is not granted, that Mr R will be required to return to his country of origin and will be separated from his family unless they also return.
[18] If those two indirect consequences were inevitable or even highly likely, it seems to me that there is a real argument that the impact on Mr R will be out of all proportion to the offence for which he received a conviction. If on the other hand all genuinely deserving cases do receive waivers – and if I may say so, in my view this is such a case – then there can be no argument about whether a conviction is warranted. The problem in this case is really that the information does not lead to a clear conclusion one way or the other. Hundreds of waivers are granted but we have no idea how many are declined.
[19] Section 107 says that the Court must not discharge an offender without conviction unless it is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. In other words, there must be sufficient evidence on the balance of probabilities that Mr R will be sent home if convicted. In my view, although Mr R ’s case seems to me to be a genuinely deserving one, it does not meet the test. The appeal must be dismissed accordingly.
“Joseph Williams J”
Solicitors:
S Insley, Barrister, Porirua
Luke, Cunningham & Clere, Wellington
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