Rogers v Police HC Christchurch CRI-2010-409-000228

[2011] NZHC 395

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2010-409-000228

ADELINE KATE ROGERS

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         1 April 2011

Appearances: A M McCormick for Appellant

D Elsmore for Respondent

Judgment:      1 April 2011

ORAL JUDGMENT OF CHISHOLM J

[1]      On 17 February 2011 I dismissed the appellant’s appeal from a decision of the District Court refusing to discharge the appellant under s 106 of the Sentencing Act 2002. The appellant now seeks leave to appeal to the Court of Appeal.

[2]      The question of law that the appellant wishes to have determined by the

Court of Appeal is:

Did the High Court err by applying the wrong standard of proof to the assessment of the consequences of a conviction when undertaking the balancing test required by s 107 of the Sentencing Act 2002?

[3]      Mr McCormick argued that this question arises because  I had effectively

elevated the standard of a “real and appreciable risk” that deportation would occur to the  higher  standard  of  requiring  the  appellant  to  establish  that  deportation  was

ROGERS V NEW ZEALAND POLICE HC CHCH CRI-2010-409-000228 1 April 2011

inevitable or would probably occur.  Although he accepts that the test of a “real and appreciable risk” of deportation was used in the judgment, he submits that references to there being a right of appeal to the Minister of Immigration or the Immigration and Protection Tribunal reflected that the higher threshold had actually been used. However, he did not dispute that the right of appeal to the Minister or the Tribunal was a relevant consideration.

[4]      I am afraid that I have not been persuaded that there is a question of law involved in the appeal which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.  In other words, the appellant has not surmounted the threshold of s 144 of the Summary Proceedings Act 1957.

[5]      At [22] of the decision it is clear that the test being applied was that used in Mohammad  v  NZ Customs Services,[1] namely a “real and appreciable risk” that deportation would occur. There is further reference to that test at [23]. Mr McCormick is not questioning that test. To my mind there is no indication that a different test was applied.

[1] Mohammad v NZ Customs Services Auckland Registry, CRI 2009-404-56, 29 May 2009 at [49]

[6]      In  the  end  this  case  came  down  to  balancing  the  direct  and  indirect consequences against the gravity of the offending.   Whether the direct or indirect consequences were out of proportion to the offending was described as “the critical issue”.[2]   Primarily this involved a weighing of the particular facts of this case.  I am doubtful that any question of law was involved.  Even if it was, I cannot see how it could  be  a  matter  of  general  or  public  importance  or  for  any  other  reason  a

[2] At [24]

determination by the Court of Appeal is required. [7]  The application is dismissed.

Solicitors:

Brandts-Giesen McCormick, Christchurch

Raymond Donnelly & Co, Christchurch