RICCI ANDREI RUBIO PADERANGA AND THE KING

[2024] NZHC 3650

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2024-412-46

[2024] NZHC 3650

BETWEEN

RICCI ANDREI RUBIO PADERANGA

Appellant

AND

THE KING

Respondent

Hearing:	2 December 2024
Counsel:	C M Andersen (on instructions from L S Collins) for the Appellant M Brosnan for the Respondent
Judgment:	4 December 2024

JUDGMENT OF GWYN J

Introduction

[1]    Ricci Paderanga appeals a decision of Judge Large in the Dunedin District Court1 declining to discharge him without conviction on one charge of making an intimate visual recording.2 The appellant argues that the Judge erred in assessing the gravity of the offending and the consequences of a conviction.3

Background

The offending

[2]    On 4 January 2023 the appellant was shopping at Kmart in Hamilton. At approximately 12.14 pm he was carrying a small basket with track pants inside and his cell phone lying on top, with the front facing camera filing upwards from inside

1      New Zealand Police v Paderanga [2024] NZDC 21028.

2      Crimes Act 1961 s 216H. The maximum penalty is three years’ imprisonment.

3      Sentencing Act 2002, ss 106 and 107.

PADERANGA v R [2024] NZHC 3650 [4 December 2024]

the basket. The appellant stood next to the complainant who was browsing in the kitchen section, placed the basket on the ground, and pushed it under her skirt with his foot. The complainant’s mother witnessed the incident, noticing that the phone was recording under her daughter’s skirt. The complainant’s mother alerted a Kmart employee, and Police arrested him on the scene. Mr Paderanga deleted the footage when detected.

[3]The appellant explained:

It just happened, you know when you find somebody sexy. I haven’t seen my girl in a while. I was just being dumb, it was just lust. I was buying that basket and when I saw that girl, I just wasn’t thinking straight.

Criminal history

[4]The appellant has no criminal history.

Decision under appeal

[5]    Judge Large explained that Mr Paderanga sought a discharge without conviction  which  was  opposed  by  the  Police.  In  support  of  his  application,  Mr Paderanga had taken steps to address his offending including undergoing counselling, attending church, making a referral to the STOP programme, offering to attend restorative justice, offering to pay emotional harm reparation of $1,000 to the complainant and writing a letter of apology.

[6]    The Judge noted that Mr Paderanga’s family is in New Zealand on a temporary residence visa, and he is due to apply for permanent residency. The Judge observed that Mr Paderanga works as a kitchen hand part-time and plans to train as a welder, noting a conviction would not necessarily preclude entry into this occupation.

[7]    The Judge had regard to evidence that Mr Paderanga has attention deficit hyperactivity disorder (ADHD), problems with language comprehension and verbal expression, and immigration legal advice that the mere fact of a conviction makes him liable for deportation.4 The Judge observed that these are powerful mitigating factors.

4      Immigration Act 2009, s 161(1)(a)(iii).

[8]    The Judge applied the three-step test for determining whether to grant a discharge without conviction:

(a)Assessing the gravity of the offending, the Judge found Mr Paderanga’s offending  similar  to  that  in   Pradhan  v  New  Zealand  Police.5   Mr Pradhan had also filmed or attempted to film up a complainant’s skirt in a retail store. The Judge considered the gravity of the making an intimate visual recording was more serious than an indecent assault case6 referred to by the appellant, by reference to Anufe v New Zealand Police.7 The Judge concluded the offending was of low to moderate gravity, falling at the moderate end.

(b)As to the consequences of conviction, the Judge concluded there is no evidence beyond counsel’s submissions that supports a conclusion that conviction would impact upon Mr Paderanga’s current employment or plans to train as a welder, nor obtain a forklift licence. The Judge accepted the broad assertion that conviction would reduce employment opportunities for Mr Paderanga given his young age (24). Despite his relative youth, the Judge considered Mr Paderanga was too old to receive a discount on account of youth.8 The Judge emphasised that the risk of deportation if convicted is only a risk,9 and said it is appropriate for the consequence of a conviction to be resolved by the appropriate immigration authorities.

(c)The Judge concluded that the direct and indirect consequences of conviction are not out of all proportion to the gravity of the offence. The Judge declined to discharge Mr Paderanga without conviction.

[9]    The Judge imposed a sentence of two months’ community detention with a curfew from 9.00 pm to 9.00 am, and 12 months’ supervision. This was the least

5      Pradhan v New Zealand Police [2018] NZHC 2966.

6      Rahim v R [2018] NZCA 182.

7      Anufe v New Zealand Police [2020] NZHC 2396.

8      Tukaki v R [2013] NZCA 411 at [19].

9      Unlike in Datt v R [2024] NZCA 297.

restrictive penalty available in the circumstances that achieves the principles and purposes of sentencing.

Submissions

For the appellant

[10]   Ms Andersen, for the appellant, submits the Judge erred by assessed the gravity of the offending as moderate and going on to find that the real and appreciable consequences of conviction were out of all proportion to the gravity of his offending.

[11]   The appellant submits that categorising the offending as moderate was an error because, although the offending was highly distressing for the complainant and an intrusion of her privacy, the appellant did not abuse the trust in an established relationship; the filming occurred over clothes; the appellant immediately deleted the video; and he did not view or share the video.

[12]   Ms Andersen emphasises the mitigating features of the appellant’s character including absence of previous convictions, being of previous good character, diagnosed ADHD and language difficulties. The appellant says his ADHD in particular gave him poor impulse control and impacted on his consequential thinking. The psychological assessment provided to the Court did not identify other factors known to increase his risk of sexual reoffending. Further, the appellant has taken responsibility for and shown insight into his offending. This low risk of reoffending is relevant to suitability for discharge without conviction10 and the appellant’s personal circumstances reduce the gravity of the offending from moderate on its facts to low, in all the circumstances.

[13]   The appellant submits that although the Court cannot determine what immigration authorities might ultimately do, Mr Laurent’s evidence was that there was a real and appreciable risk of the appellant being deported. The appellant has not lived in his home country since he was 11, and if deported, he would be separated from his family. That is a significant consequence.

10 At [29].

[14]   Beyond the immigration consequence, the appellant submits the Judge failed to place any real weight on the other consequences that would follow from conviction, particularly as regards employment. The appellant disputes that his offending is more serious than Anufe v New Zealand Police because there, the appellant had made a recording at his workplace through a hole in the wall of the female bathroom. He had admitted to making such recordings on more than 10 prior occasions.

[15]   Ms Andersen says the appellant’s offending is more analogous to Rahim v R where the appellant was charged with two indecent assaults by way of placing his hand on the buttock of a person in a lift at the hospital where he worked. The appellant says, like that offending, his was fleeting and could not be viewed or shared later.  Mr Rahim was discharged without conviction.

[16]   The appellant submits his conviction should be overturned. He has completed his community detention without breach and is well engaged with supervision.

For the Crown

[17]   Ms Brosnan, for the Crown, submits no miscarriage of justice occurred and the appeal should be dismissed.

[18]   Counsel says the District Court correctly assessed the gravity of the offending as more moderate than low. Unlike in Pradhan, Mr Paderanga successfully made a recording. Also unlike in Pradhan, Mr Paderanga targeted the complainant on the basis that he found her “sexy” when he saw her, and he manoeuvred himself and his cell phone to a position able to take the recording. He took advantage of the seemingly innocent location with an unsuspecting complainant and her mother.

[19]   The Crown says the Judge correctly referred to Davidson J’s comments in Anufe v New Zealand Police that the appellant possessed an electronic recording capable of being replayed, shared with others, and uploaded to the internet. He only deleted it when caught by the complainant’s mother. The gravity of the offence must

be seen in the context of surreptitious filming, involving an invasion of privacy made easier due to technological developments.11

[20]   The Crown also submits the Judge appropriately had regard to factors personal to the appellant. The Judge observed that there are “powerful mitigating factors”. The Crown accepts that the appellant has shown remorse and pleaded guilty early, but suggest that it is difficult to see what defence would have been available given he was caught while filming. Similarly, the Crown accepts that absence of previous convictions is a mitigating factor, but this must be seen in the context of the appellant’s age (23 at the time of the offending) which is a small length of time to demonstrate good character. There is no evidence of the appellant serving the community.

[21]   The Crown acknowledges that the appellant’s ADHD had a causal connection with his offending. However, the Crown says, in view of his comments to the Police, impulsivity was not the only or primary driver behind his offending.

[22]   The Crown suggests that although some consideration should be given to the appellant’s rehabilitative steps to address sexual offending, taken prior to sentencing, this must be seen in the context of the pre-sentence report writer’s comments that there was a lack of identifiable rehabilitative needs available for the appellant.

[23]   The Crown submits that the Judge did not err when considering the potential consequences on the appellant’s employment. There was insufficient specificity about how a conviction might impact on his ability to gain employment, as the Judge noted, and no evidence from prospective employers as to the likely impact of conviction. Nor was there evidence that the appellant is currently seeking employment. Further, the appellant appears indeterminate as to his future plans and has demonstrated difficulty retaining employment over the past few years due to personal factors. There is accordingly no real and appreciable risk of this consequence. In any event, the consequence to the appellant should yield to the employer’s right to know.12

11     Seymour v R [2021] NZHC 2322.

12     R v Taulapapa [2018] NZCA 414 at [42(a)].

[24]   As to the immigration consequences, the Crown submits that the courts’ general rule is that if the evidence does not establish that conviction would expose the offender to consequences beyond the risk of deportation, the usual course is to allow the immigration assessment to proceed.13 In these circumstances, the evidence only establishes a risk of deportation; the Court should not pre-empt the immigration authorities’ process. There is no real and appreciable risk that the appellant will indeed be deported. Further, there is an over 50 per cent chance that the appellant will have his deportation liability suspended, as Mr Laurent deposed.

[25]   Finally, the Crown submits that the gravity of the offending outweighs the consequences of conviction. The consequences are not out of all proportion. Given the jurisdiction test under s 107 has not been  established, residual  discretion under  s 106 is not engaged.

Relevant law

[26]   Section 106 of the Sentencing Act 2002 provides that if a person who is charged with an offence is found or pleads guilty, the court “may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence”. Section 107 guides the application of s 106:

107     Guidance for discharge without conviction

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.

[27]About the s 107 test, the Court of Appeal said in Prasad v R:14

It is settled that a court considering a discharge under s 106 of the Sentencing Act 2002 should follow a three-step process addressing the guidance given in s 107. These steps are:

(a)identification of the gravity of the particular offence, taking into account all aggravating and mitigating factors of the offending and the offender;

13     Singh v R [2023] NZCA 665 at [23], referring to Anufe v New Zealand Police, above n 7, and Zhu v R [2021] NZCA 254. See also Bolea v R [2024] NZSC 46, [2024] 1 NZLR 205 at [43].

14     Prasad v R [2018] NZCA 537 at [11] (footnotes omitted).

(b)identification of the direct and indirect consequences of conviction; and

(c)a determination of whether those consequences are “out of all proportion” to the gravity of the offence.

Only if that threshold is met can the court move to consider the residual discretion under s 106. There must be a “real and appreciable” risk that any given consequence will happen. This standard recognises that the court is assessing the likelihood of something that may happen in the future.

[28]   The Court of Appeal has explained the correct approach to assessing consequences to the offender’s employment:15

[46]   When determining the effects of conviction on employment the court must identify the consequence, assess the evidence offered for it, evaluate the risk that the consequence will happen to the particular applicant, and form an overall assessment of seriousness. These are matters of judicial judgement. We make three points about this:

(a)When assessing the evidence offered, the court may find that the stated consequence of conviction for a given career or job is a question of present fact that is capable of proof in the normal way.

(b)For this reason, where an applicant points to the effect of conviction on a specific career it is usually necessary to provide the court with entry criteria establishing that the stated effect exists.

(c)Evidence of the attitude of employers may not be reasonably available, and in that case the court will do the best it can on the evidence available. Judicial notice of facts may be taken where appropriate.

[29]   This is appeal against the refusal to grant a discharge without conviction is a composite appeal against conviction and sentence under s 232 of the Criminal Procedure Act 2011.16 The basis for determining the appeal is whether a miscarriage of justice has occurred:17

(a)by virtue of a material error by the sentencing Judge in entering a conviction; or

15     R v Taulapapa, above n 12, at [46] (footnotes omitted).

16     Datt v R, above n 9, at [6], citing Gaunt v New Zealand Police [2017] NZCA 590 and Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [12].

17 At [12].

(b)as a result of an error by the judge in applying the principles of discharging an offender without conviction under s 107 of the Sentencing Act.

[30]   The Court of Appeal in R v Hughes noted that such an appeal is not an appeal against the discretion of the Court.18 It is a matter of fact requiring judicial assessment and the discretionary power of the court to discharge without conviction arises only if the s 107 threshold has been met.19 The usual appeal principles apply as set out in Austin, Nichols & Co Inc v Stichting Lodestar.20

Analysis

Gravity of the offence

[31]   As Whata J observed in Pradhan,21 like indecent assaults, the courts must take this type of offending (making an intimate visual recording) seriously. As the Judge also observed,22 the key aggravating factors are inherent in this kind of offending – it is a premeditated, attempted unauthorised intimate video recording. Here, as the Crown submits, the appellant took advantage of the public location and unsuspecting complainant to fulfil his “lust”, as he himself described it.

[32]   But in terms of the assessment of gravity for discharge purposes, each case must be assessed on its own facts. Here, as in Pradhan, the offending was isolated and unsophisticated. There is no suggestion that Mr Paderanga specifically targeted, identified or sought to identify the intended victim.

[33]   In addition, the appellant’s personal circumstances mitigate the gravity of the offending. He has no previous convictions and was of good previous character. He suffers symptoms of diagnosed ADHD, which makes him more prone to impulsive actions; and he has difficulties with language comprehension and verbal expression.

18 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.

19 At [28].

20 Austin, Nichols & Co v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141. This approach was confirmed in Brown v New Zealand Police [2019] NZHC 2348; and Sharma v New Zealand Police [2018] NZHC 2471.

21 Pradhan v New Zealand Police, above n 5, at [11], citing Edwards v R [2015] NZCA 583 at [9].

22 Pradhan v New Zealand Police, above n 5, at [12].

He is relatively young. Mr Paderanga has undergone targeted STOP counselling, offered $1,000 emotional harm compensation to the victim, written a letter of apology and offered to meet the victim at a restorative justice conference.

[34]   Taking all these factors into account, I am satisfied that the gravity of the offending is at the low end of the spectrum.

Consequences of conviction

[35]   As the Judge recorded, there is no evidence of specific consequences on the appellant’s employment as a result of conviction. There is no evidence that he will, or is likely to, lose his current employment as a kitchen hand as a result of conviction. Nor is there evidence that if he pursues as a career as a welder or attempts to obtains a forklift licence, the conviction is likely to affect either of those potential future career paths.

[36]   But, as the Court of Appeal noted in J v R,23 a sentencing Judge is entitled to take into account the general consequences of a conviction. The Court said:24

While the courts have tended to more readily accept the existence of general consequences where young people are involved, the principle is not to be constrained in this way. Every case must be considered on its own facts and circumstances.

[37]   The Court went on to give a number of examples, involving defendants of a range of ages, where the general consequences of a conviction on employment prospects were taken into account, even in the absence of evidence of specific consequences.

[38]   I  accept  that  the  general  adverse  consequences  of   a   conviction   for   Mr Paderanga are relevant to my assessment. It is reasonable to infer that a conviction for making an intimate visual recording may well attract a pre-emptive response from prospective employers.

23     J (CA32/2021) v R [2021] NZCA 690 at [42].

24 At [49].

[39]   The critical factor in this case is the specific consequences that may result in terms of Mr Paderanga’s immigration status. I accept that there is a real and appreciable risk of Mr Paderanga being deported from New Zealand if a conviction is entered. Mr Laurent’s evidence addresses this. As he notes, the appellant’s offending engages s 161(1)(a)(iii) of the Immigration Act 2009 because the offence was committed within two years of him receiving a Residence class visa, thus rendering him “liable for deportation”. The appellant would remain liable for deportation for period of 10 years from the date of conviction.

[40]   Mr Laurent’s view is that conviction will almost inevitably result in deportation action of some kind by Immigration New Zealand — usually by serving a Deportation Liability Notice (DLN). Mr Laurent’s evidence discusses the possibility of the appellant securing suspension or cancellation of his deportation liability — a power held by the Minister of Immigration under s 172 of the Immigration Act — but notes his experience that this is less likely for a sexual offender. Mr Laurent assesses the chances of Mr Paderanga getting liability suspended as “somewhat more than 50%”. Mr Laurent also canvasses what might happen if Immigration New Zealand were to proceed with service of a DLN, in which case Mr Paderanga would have to demonstrate “exceptional humanitarian circumstances that would make it unjust or unduly harsh” for him to be deported.25 Mr Laurent’s view is the appellant does not meet that high threshold.

[41]   Mr Laurent observes that if Mr Paderanga is discharged without conviction, there would be no ground upon which he could be liable for deportation.

Proportionality

[42]   I conclude that the real and appreciable consequences of conviction are out of all proportion to the gravity of the offence. The offence was an unacceptable invasion of the complainant’s privacy and caused her harm, but it was an isolated, unsophisticated attempt at an intimate visual recording. Having regard to all relevant factors, the gravity of the offence was low. Mr Paderanga has shown insight and made a genuine attempt to rehabilitate and address the causes of his offending. He is not a

25     Immigration Act, s 207.

recidivist offender and has successfully completed the community detention element of his sentence. In contrast, the potential consequences in terms of possible deportation from New Zealand, could have a highly disruptive impact on the appellant’s life. He could face isolation from his family and support networks, and the country where he has lived for the past 13 years.

Residual discretion

[43]   There is nothing in the circumstances of the case that would make it appropriate for me to nevertheless exercise my residual discretion under s 106 to decline the  application  for  discharge  without  conviction.  I  assess  the  risk  of  Mr Paderanga reoffending as low.

Conclusion

[44]I allow the appeal and discharge Mr Paderanga without conviction.

Gwyn J

Solicitors:
Crown Solicitor, Dunedin