Sami v Commissioner of Inland Revenue
[2022] NZHC 2436
•23 September 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-404-565
[2022] NZHC 2436
BETWEEN RAJESH SAMI
Appellant
AND
COMMISSIONER OF INLAND REVENUE
Respondent
Hearing: 7 June 2022 Appearances:
S G Graham for Appellant
S J Becroft and J G Fenton for Respondent
Judgment:
23 September 2022
JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 23 September 2022 at 11:45am
Registrar/Deputy Registrar
Solicitors:
Young Hunter, Christchurch Kayes Fletcher Walker, Auckland
SAMI v COMMISSIONER OF INLAND REVENUE [2022] NZHC 2436 [23 September 2022]
Introduction
[1] Rajesh Sami (the appellant) seeks an extension of time for filing an appeal against his 17 convictions for tax evasion. He was sentenced on 25 September 2017 to two years and 10 months’ imprisonment for each offence, to be served concurrently.1 He also seeks leave to adduce further evidence, being an affidavit which he has sworn containing information that was not before the sentencing Judge.
[2] He seeks to appeal his convictions on the grounds that a miscarriage of justice occurred. In the alternative, he applies for a discharge without conviction on the basis that the consequences of the convictions are out of all proportion to the gravity of his offending.
Background
[3] The appellant is a Fijian citizen and was, until his deportation notice, a New Zealand resident. He has been living and working in New Zealand for approximately 24 years. His wife and three children all live in New Zealand. He is also a grandfather to two young children.
[4] The appellant operated a construction business for over 10 years through two companies. He was at the relevant time a Licensed Building Practitioner which is a recognised qualification in the building industry.
Facts of the offending
[5]The following factual background is taken from the Police summary of facts.
[6] The appellant’s convictions arose following an Inland Revenue Department (IRD) investigation of his personal income tax affairs after checks revealed that he was receiving large sums of cash as payment for work he had undertaken through his construction business but had failed to file income tax returns for the tax years between 2009 and 2015. The IRD investigation found that the appellant had used various
1 Tax Administration Act 1994, s 143B(2): carrying a maximum penalty of five years’ imprisonment and/or a fine not exceeding $50,000.
personal bank accounts, joint bank accounts with his partner, and his partner’s personal bank accounts to bank business income.
[7] The appellant’s personal bank statements and joint account statements showed: cash deposits; transfers from one of his associated companies, RS Building Services Limited (RSB); and direct credits from clients. Between 2011 and 2015, the cash deposits totalled $166,420.50, direct credits (deemed building-related income) totalled
$457,780.40 and transfers from RSB (deemed shareholder salary) totalled
$623,010.15.
[8] Although the appellant’s income subject to tax exceeded the threshold requirements for registration under the Goods and Services Tax Act 1985 he did not register or file any GST returns.
[9] The appellant’s partner filed personal tax summaries for the 2012 to 2014 tax years, but did not include income from the appellant and RSB. Her personal bank statement analysis showed regular cash deposits. This income was generated from the construction business that the appellant operated. Both the appellant and his partner shared in the business profits, and together chose not to return any of the income generated from the business activity, file GST returns and pay GST.
[10] The appellant was requested by the IRD to supply information including outstanding income tax returns. Despite numerous undertakings and extensions of time, no information or any tax returns were provided.
[11] The appellant admitted that he and his partner had not kept adequate records of construction jobs he had completed, and that as a consequence it was not possible to make accurate income tax and GST liability assessments. During the IRD investigation the appellant and his partner provided income information to a Nominated Person to enable income tax returns for the financial years 2011 to 2015 to be prepared and filed in October 2015. However these returns failed to include more than half of their actual income. The appellant and his partner both knew that these income tax returns were false.
[12] In July 2016, the IRD issued assessments for the 2010 to 2015 tax years under s 89C(eb) of the Tax Administration Act 1994. As no response was received within the four month response period, the assessments were deemed to have been accepted by the appellant.
[13] The IRD investigation also established that the appellant and his partner were frequent visitors to Sky City Casino. Sky City records show that between 2010 and 2015 the appellant had spent a net amount of $566,000 at the casino. In the same period the appellant’s partner had spent a net amount of $306,000. The appellant and his partner had no other source of business income during this period, and the cash they spent at the Sky City Casino was sourced from the construction business.
[14] Five of the appellant’s charges related to the evasion of income tax (one for each year). The total tax loss being $433,571.15. Eight charges related to the evasion of GST (one for every six months), with a tax loss of $115,676,39. Four charges related to the appellant’s evasion of income tax on income paid into his partner’s account (one for each year, excluding 2015), with a tax loss of $120,615.53.
[15] The appellant pleaded guilty to the charges and was sentenced on 25 September 2017 to two years and 10 months’ imprisonment for each offence, to be served concurrently.
Events following conviction
[16] On 25 February 2019, the appellant was released on parole. His parole conditions were to report monthly to his probation officer and not to gamble.
[17] Immigration New Zealand (INZ) served the appellant with a deportation liability notice dated 30 January 2019, and on 28 February 2019 the appellant filed an appeal on humanitarian grounds against the deportation notice. On 17 September 2019 the Immigration and Protection Tribunal delivered a decision declining the appeal.2 The appellant has subsequently been unsuccessful in his appeals against
2 Sami v The Minister of Immigration [2019] NZIPT 600584.
deportation and has exhausted all available immigration appeal options to remain in New Zealand.
[18] The appellant unsuccessfully appealed against his deportation notice to the Immigration and Protection Tribunal.
[19] The application to extend time to appeal against the convictions is filed four years out of time.3 The court may extend the time allowed for filing a notice of appeal.4 The principles relevant to an extension of time were set out by the Court of Appeal in R v Knight and confirmed in R v Lee.5 The touchstone is the interests of justice.6 The court is required to balance a number of factors including:7
… the wider interests of society in the finality of decisions, the strength of the proposed appeal, whether the liberty of the subject is involved, the practical utility of any remedy sought, the extent of the impact on others affected and on the administration of justice, and any prejudice to the Crown.
[20] The reasons for the delay and the merits of the proposed appeal are of particular significance, with the latter likely being determinative of the interests of justice and therefore the application for leave.8
[21]The appellant submits that leave to appeal should be granted because:
(a)he first exhausted all available immigration appeal options, including by seeking ministerial intervention which was declined on 12 October 2021;
(b)following the Minister’s decision, he has acted in a timely manner in promptly filing the application to extend time to appeal;
(c)there was a miscarriage of justice due to the appellant not receiving adequate legal advice regarding the possible consequences that
3 Criminal Procedure Act 2011, s 231(2) requires a notice of appeal against conviction to be filed within 20 working days after the date of sentence for the conviction appealed against.
4 Section 231(3).
5 R v Knight [1998] 1 NZLR 583 (CA) at 587; and R v Lee [2006] 3 NZLR 42 (CA) at [95]–[99].
6 R v Knight, above n 5, at 587.
7 R v Lee, above n 5, at [99].
8 Smith v R [2020] NZCA 221 at [3]–[4].
convictions would have on his immigration status, and because of his trial counsel’s failure to advise the sentencing Judge of these possible consequences of convictions;
(d)special circumstances being the consequences of his convictions having had a disproportionately severe impact upon his ability to remain in New Zealand;
(e)there is no prejudice to the respondent if an extension of time to appeal is granted; and
(f)there is real risk of a miscarriage of justice if an extension of time to appeal is refused.
[22] The respondent says that the appellant’s delay in filing his notice of appeal has meant that counsel advising and representing the appellant in relation to the charges and at his sentencing has been required to revisit advice she gave to him approximately five years ago. The respondent says that it has been caused significant prejudice as a result. It says that the merits of the appeal are not strong, and the application for an extension of time should accordingly be declined.
[23] While the time spent by the appellant pursuing his appeal against his deportation notice largely explains his delay in filing an appeal, consideration of whether the interests of justice require the granting of an extension of time to bring an appeal will largely depend upon the merits of the proposed appeal.
Leave to adduce further evidence
[24] As I have noted, the appellant also seeks leave to adduce his affidavit as fresh evidence on the appeal.
[25] The Court can receive new evidence in an appeal if it thinks it necessary or expedient in the interests of justice.9 Generally, new evidence will need to be credible and fresh.10 The overriding criterion is the interests of justice.11
[26] The respondent does not oppose the admission of the appellant’s affidavit as fresh evidence, and has also filed an affidavit by the appellant’s trial counsel, Ms Karena in which she comments on and replies to the appellant’s affidavit. In his affidavit the appellant has set out his immigration history, the legal advice he had received after he was charged, and his possible deportation. This information is directly relevant to the present appeal and I am satisfied that it is in the interests of justice to admit it, and I accordingly grant the appellant leave to adduce the fresh evidence contained in the affidavit, and also grant the respondent leave to adduce the evidence contained in Ms Karena’s affidavit.
[27] At the hearing of the appeal both the appellant and Ms Karena gave evidence confirming the contents of their affidavits and were cross-examined.
The appeal against conviction
Legal principles
[28] The Criminal Procedure Act 2011 (CPA) provides for the right of appeal against conviction.12 This Court has jurisdiction to hear an appeal against a conviction in the District Court where the convicted person pleaded guilty to the offence before the trial.13 The appellate court must allow the appeal if it is satisfied that a miscarriage of justice has occurred for any reason.14 The CPA defines miscarriage of justice as follows:15
… any error, irregularity, or occurrence in or in relation to or affecting the trial that —
(a)has created a real risk that the outcome of the trial was affected; or
9 Criminal Procedure Act, s 335(2)(c).
10 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120]; and R v Bain [2004] 1 NZLR 638 (CA)
at [22].
11 Lundy v R, above n 10, at [119]–[120]; and R v Bain, above n 10, at [22].
12 Section 229(1).
13 Section 247(1)(c)(ii).
14 Section 232(2)(c).
15 Section 232(4).
(b)has resulted in an unfair trial or a trial that was a nullity.
Counsel error as ground of appeal
[29] In R v Sungsuwan, the Supreme Court set out a two-step approach to appeals where trial counsel error is relied on as a ground of appeal. The Court observed:16
[65] Where error or irregularity is alleged and attributed to counsel, but that would not have affected the outcome – was not material – there will be no need to analyse and judge the conduct of counsel. On the other hand, where the complaint is that counsel’s conduct was such as effectively to deny the accused representation to fairly present the defence, prejudice to the outcome will be readily found – and in extreme cases may need no inquiry.
…
[70] In summary, while the ultimate question is whether justice has miscarried, consideration of whether there was in fact an error or irregularity on the part of counsel, and whether there is a real risk it affected the outcome, generally will be an appropriate approach. If the matter could not have affected the outcome any further scrutiny of counsel’s conduct will be unnecessary. But whatever approach is taken, it must remain open for an appellate court to ensure justice where there is real concern for the safety of a verdict as a result of the conduct of counsel even though, in the circumstances at the time, that conduct may have met the objectively reasonable standard of competence.
[30] A “real risk” that the outcome was affected exists when “there is a reasonable possibility that a not guilty (or a more favourable) verdict might have been delivered if nothing had gone wrong”.17 The standard is “whether there is a reasonable possibility that a different verdict would have been delivered” in the absence of the error, irregularity or occurrence.18
[31] In some limited circumstances, a finding of trial counsel error will be sufficient to evidence a real risk of miscarriage, without anything further being required. The Court of Appeal in Hall v R said:19
[65] We agree with the Crown submission that it is helpful to identify the three fundamental decisions on which trial counsel’s failure to follow specific instructions will generally give rise to a miscarriage. The fundamental
16 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730. See also R v Scurrah CA159/06, 12 September 2006, at [17].
17 R v Sungsuwan, above n 16, at [110].
18 Misa v R [2019] NZSC 134, [2020] 1 NZLR 85 at [46] (emphasis removed).
19 Hall v R [2015] NZCA 403, [2018] 2 NZLR 26.
decisions are those relating to plea, electing whether to give evidence and to advance a defence based on the accused person’s version of events.
[32] The defendant must make properly informed decisions in relation to these fundamental decisions, and trial counsel must inform and advise the defendant before receiving their instructions on those matters.
[33] In R v Le Page the Court of Appeal provided a broad category of three situations where an appeal against conviction following a guilty plea may be allowed:20
(a)the appellant did not appreciate the nature of the charge;
(b)on the facts, the appellant could not have been guilty of the offence charged; or
(c)the guilty plea was induced by a ruling which embodied a wrong decision on a question of law.
[34] The Court in Le Page also said that an appellant must in effect show that a miscarriage of justice will result if the conviction is not overturned.21
Appellant’s submissions
[35] Here the appellant appeals against conviction on the basis that his trial counsel’s error resulted in a real risk that a miscarriage of justice occurred at trial. In particular, he says that his trial counsel erred in two respects:
(a)counsel ought to have provided him with legal advice regarding the impact or possible impact that a conviction would have on his immigration status; and
(b)the impact on the appellant’s immigration status was a matter that counsel should have brought to the attention of the sentencing Judge.
20 R v Le Page [2005] 2 NZLR 845 (CA) at [17]–[19].
21 At [16].
[36] Mr Graham for the appellant submits that the appellant is not required to establish that his trial counsel conduct was negligent. He says that all the appellant is required to show is that his trial counsel failed to advise him of the possible effect of convictions on his immigration status, and had also failed to inform the sentencing Judge of that possibility, even if the omission to do so may have satisfied the “objectively reasonable standard of competence”.22 Mr Graham submits that the Court would be justified in allowing the appeal on the grounds of counsel conduct, and he refers to case law on incorrect advice as to the non-availability of certain defences,23 inadequate advice about an essential element of the charge,24 incorrect advice as to sentence,25 and judicial intervention on pleading guilty.26
[37] In his affidavit dated 21 December 2021 the appellant says of the legal advice he received from his trial counsel:
27.My lawyer at the time was Ms Renee Karena.
28.Ms Karena was a Court appointed legal aid lawyer. I recall meeting with her briefly to discuss my case. This was a very short meeting which I estimate was in the region of 10 minutes. During that meeting I recall answering certain questions about the charges. I also told her that I was from Fiji and a New Zealand resident. She did not say anything to me about my residence status nor did she mention that a conviction of this nature could raise immigration problems for me in the future. I recall her telling me that I should enter guilty pleas to the charges at my earliest opportunity.
29.Based on Ms Karena’s advice, I instructed her to enter guilty pleas and we were given a new date to return back to the Court for sentencing on 25 September 2017.
30.I do not recall having any further meetings with Ms Karena. I recall we may have had one or two telephone calls. I recall providing her with details about my family and again explaining that I was a New Zealand resident.
31.I met with Karena approximately 10 minutes before my sentencing hearing. She asked me some further questions and I provided answers as best as I could. I told her that I was concerned about the sentence which the Court may impose. She said that it was likely that I would receive a sentence of home detention.
22 R v Sungsuwan, above n 16, at [70].
23 R v Merrilees [2009] NZCA 59.
24 Watts v R [2011] NZCA 41.
25 Su’a v R [2017] NZCA 439.
26 Gleason-Beard v R [2018] NZCA 349, [2018] 3 NZLR 699.
32.When the Court sentenced me to 2 years and 10 months imprisonment, I was shocked. I had not prepared myself for prison.
33.Had I known that the convictions would also cause problems for my immigration [status], I would have sought advice from Ms Karena, and I would have told her to tell the judge about this fact.
34.I did not have any further communications with Ms Karena after my sentence.
[38] In his evidence at the hearing of the appeal, the appellant said he recalls meeting Ms Karena twice and having three or four phone calls with her. He said that while the phone calls were “not very long” some were of up to 30 minutes duration. He repeated that when he met with Ms Karena although he told her that he was a New Zealand resident, there was no further discussion regarding the matter.
[39] However, when cross-examined the appellant confirmed that he had accepted the IRD summary of facts and had pleaded guilty. He explained:
[Counsel] told me to plead guilty … she doesn’t want me to fight the case. She said: “You can’t win this case. You have to plead guilty so your sentence will be reduced.” That’s what I was told …
[40] The appellant was also referred to a handwritten memorandum of instructions written by Ms Karena which he read and signed on 21 July 2017 which includes the following:
I have had extensive communication with my lawyer about these charges and the resolution reached is a withdrawal of one charge to the value of
$78,734.17. This leaves a total of $669,863.07.
[41] The appellant also accepted that he had read over and signed a written instruction to his counsel on the day of his sentencing, 25 September 2017, stating:
I, Rajesh SAMI have pleaded guilty to 17 charges of IRD fraud. Value
$669,863. My lawyer has explained today’s aim is to get a sentence of home detention. I understand IRD seek imprisonment. Where possible, I seek home detention. I understand the amount involved is serious and too serious for community work.
I am supported by my employer, Mr [P].
[42] The appellant also acknowledged under cross-examination that he had not raised any other matters regarding his instructions with his counsel.
[43] Mr Graham submits that the appellant’s case is unique in terms of his immigration status, as the real and appreciable risk of liability for deportation arises due to the convictions he received, and because the convictions are the sole cause of his deportation. He notes that the maximum penalty of the offences for which the appellant was convicted was five years’ imprisonment and/or a fine of $50,000, and says that the appellant’s case can be distinguished from other cases such as Sok v R27 and Zhu v R28 which involved significantly more serious offending and the charges involved carried penalties in excess of five years’ imprisonment.
[44] Mr Graham notes that the appellant has been living in New Zealand for approximately 24 years and has effectively spent his adult life living here. He says that the appellant has established deep roots in his community. His ex-wife is reliant on the appellant for her day-to-day support, and his children and grandchildren are New Zealand citizens. Deportation would mean that the appellant’s immediate and extended family unit would be broken up. He submits that if the Court considers that the consequences of convictions for the appellant’s offending are out of all proportion to the gravity of the offending, then it is open to the Court to discharge the appellant without conviction pursuant to s 106 of the Sentencing Act 2002.
Respondent’s submissions
[45] Ms Fenton for the respondent submits there was no trial counsel error, and that even if the alleged error is established, it would not have affected the outcome.
[46] Ms Fenton notes that in Ms Karena’s affidavit sworn on 20 April 2022, she strongly refutes the appellant’s allegations on three points:
(a)brevity of meetings pre-trial;
(b)failure to inform him of the seriousness of the charges and likely penalty; and
27 Sok v R [2021] NZCA 252.
28 Zhu v R [2021] NZCA 254.
(c)failure to act upon the information counsel was given by the appellant regarding his immigration status.
[47] Ms Fenton notes that Ms Karena disputes the appellant’s allegation that she had brief meetings of “10 minutes” with him, and exhibits a file note she made in which she recorded that she had a 30 minute conversation with the appellant on 13 July 2017. In her file note Ms Karena also records that the appellant had made admissions of tax evasion when interviewed by IRD investigators and that he did not have any defence available to him. Ms Karena says that she was well aware that these were serious charges, and she gave the appellant repeated advice that imprisonment was a real prospect.
[48] Ms Fenton also notes that Ms Karena does not accept the appellant specifically told her that he was a Fijian citizen and had resident status in New Zealand. However, she acknowledges that the 2017 IRD summary of facts states that he is “a New Zealand resident”. Ms Karena also acknowledges that she may have overlooked the reference to the appellant as being a New Zealand resident, and she says that she did not make any enquiries around his residency or visa status. She says that in the course of her discussions with the appellant prior to him entering his plea and prior to his sentencing, he made no mention of his residency status. She says that in her experience most criminal lawyers practicing in the District Court do not advise defendants regarding visa or deportation issues that may arise as a consequence of criminal charges and convictions of their clients, and they will generally refer defendants to specialist lawyers for immigration advice when those issues arise.
[49] In her evidence Ms Karena confirmed that she had advised the appellant that he clearly had no defence to the charges, and that in her view the Court would not have granted a discharge without conviction in these circumstances. She also notes that prior to his sentencing on 25 September 2017 she obtained his written instructions confirming that he had been advised that the IRD was seeking a sentence of imprisonment and that his aim was to be sentenced to home detention if possible.
[50] Ms Fenton submits the evidence set out in Ms Karena’s affidavit shows that there was no trial counsel error. She submits that Ms Karena gave the appellant careful
and thorough advice in circumstances where he had no defence to the charges, and the gravity of those charges made an application for a discharge without conviction unrealistic. Moreover, as the appellant did not mention his residency status to Ms Karena, she was not made aware of the risk to the appellant’s immigration status if he was convicted. There was therefore no “omission”, as alleged by the appellant, and because Ms Karena was not given any information by the appellant regarding his residency status in New Zealand, she did not consider or advise him regarding the consequences of convictions on his residency status.
[51] The respondent accordingly submits there was no trial counsel error in this case giving rise to a miscarriage of justice, and the appeal should be dismissed.
Analysis
[52] While failures or omissions by trial counsel to properly inform the defendant regarding the charges before receiving instructions regarding the entering of a guilty plea,29 or errors or irregularities attributed to counsel resulting in a real risk of the outcome being affected will be sufficient to establish the real risk of a miscarriage, that is not the situation in this case.
[53] The trial counsel errors alleged by the appellant do not fall within the scope of the three broad categories described in Le Page. Here the appellant clearly understood the nature of the charges and this is not a case where he could not possibly have been guilty of the offences charged. He very clearly had no defence. Moreover, this is not a case where the appellant’s guilty pleas were influenced by incorrect legal advice. Although the categories in Le Page are not an exhaustive list, they nevertheless indicate the type of circumstances in which trial counsel’s errors or omissions in relation to the provision of advice to a defendant regarding their decision to plead guilty could give rise to a real risk that a miscarriage of justice has occurred. Here there is no suggestion that he pleaded guilty when he was in fact innocent. Therefore this is not a situation in which a miscarriage of justice will occur unless the conviction is overturned.
29 Hall v R, above n 19, at [65].
[54] Turning then to the two-step approach for assessment of trial counsel error, as set out in Sungsuwan.
Was there in fact an error?
[55] I accept Ms Karena’s evidence that the appellant did not mention the issue of his residency status in the course of providing her with his instructions. It is quite clear that the appellant had no defence to the charges and that being the case Ms Karena’s advice to him to plead guilty in order to secure a sentencing discount was both appropriate and correct. In fact Ms Karena effectively negotiated the withdrawal of one of the tax evasion charges originally laid resulting in a reduction of the reparation schedule of $78,716 and an amendment to the prosecution summary of facts. By advising Mr Sami to plead guilty at the earliest possible stage (following negotiations to withdraw one of the charges) she was able to argue for the maximum guilty plea discount at sentencing, which he received.
[56] Having regard to the serious nature of the appellant’s offending over an extended period of approximately six years involving significant tax evasion of large sums of money, even if the possibility of deportation had been raised at the sentencing there was never any realistic possibility that the Court could be persuaded to discharge the appellant without conviction.
[57] Furthermore, this case is quite unlike Chand v New Zealand Police, in which trial counsel was aware of the defendant’s immigration status and the risk of deportation attached to conviction.30 Ms Karena was not aware of Mr Sami’s residency status and the topic was not discussed during their pre-trial meetings.
[58] It appears from Ms Karena’s evidence that she was not given any information by the appellant regarding his immigration status or asked to advise him about the consequences of convictions on his immigration status, and certainly she was given no instructions to convey this information to the sentencing Judge.
30 Chand v New Zealand Police [2017] NZHC 2188.
[59] I reject the appellant’s evidence that he had one 10 minute meeting with Ms Karena, prior to her instructing him to enter a guilty plea. I accept Ms Karena’s evidence supported by her contemporaneous file note dated 13 July 2017 that she had a number of attendances with the appellant prior to his entering guilty pleas including one which lasted for half an hour during which the issue of whether he had a defence to the charges was properly and realistically considered, and in which he accepted that he did not have any defence available to him. The file note records that Ms Karena advised the appellant that an end sentence of imprisonment was a very real prospect and that he was realistic about that prospect.
[60] I also accept Ms Karena’s evidence that if the appellant had raised concerns about the impact of his convictions on his residency status, she would have referred him to an immigration lawyer, rather than advise him herself.
[61] For these reasons, I find that Ms Karena did not err when she advised the appellant regarding his guilty pleas prior to his decision to plead guilty. He was properly informed as to the seriousness of the charges he faced, and the possibility of imprisonment. He pleaded guilty in order to obtain the benefit of a full discount at sentencing.
If so, is there a real risk that the error affected the outcome of the trial?
[62] The respondent submits that even if Ms Karena could be said to have erred in failing to discuss the possibility of a discharge without conviction with the appellant and not raising it with the sentencing Judge, that error would not have had any effect on the outcome in this case. Although I have found that Ms Karena made no error, I now turn to consider whether this is nevertheless a case such as described by the Supreme Court in Sungsuwan in which although the conduct of counsel was reasonable it can nevertheless be shown to have given rise to an irregularity in the trial that prejudiced the appellant’s chance of an acquittal such that a miscarriage of justice has occurred.31
31 R v Sungsuwan, above n 16, at [67].
[63] Having regard to the circumstances and seriousness of the appellant’s offending is it quite clear that had the appellant applied for a discharge without conviction it would not have been granted. Where a conviction may have consequences for the offender’s immigration status in New Zealand, the courts have often observed that it is appropriate for the issue to be resolved by the immigration service rather than by the courts.32
[64]In Ji v R the Court of Appeal noted:33
… it is well-established that the courts should not usurp the function of the immigration authorities in deciding whether a person should be deported or not.
[65] In Sok v R, the Court heard an appeal against a decision declining an application for discharge without conviction under s 106 of the Sentencing Act, on a charge of injuring a five-month-old baby with reckless disregard for the baby’s safety.34 Although the Court of Appeal accepted that the appellant faced a real risk of deportation which would have very serious consequences not only for him but also for his family, it was not prepared to accept that these were consequences of the conviction. Rather, the Court held that these were consequences of the offending.35
[66]Similarly, in Zhu v R, the Court of Appeal said:36
[28] We accept that once liable to deportation Mr Zhu is at risk of being served with a deportation liability notice, which in turn may lead to deportation. However, we do not accept that these are consequences of conviction. They are consequences of the offending, which will be considered by immigration decision-makers along with his personal and family circumstances.
[29] For these reasons Mr Zhu cannot point to consequences of conviction that would be out of all proportion to the gravity of his offending.
[67] As the holder of a residence class visa the appellant’s convictions for offences rendered him liable for deportation pursuant to s 161(1)(b) of the Immigration Act
32 Chai v R [2019] NZCA 628 at [60]–[61]; George v New Zealand Police [2014] NZHC 1725 at [46]; and Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011 at [14]. See also Jeon v New Zealand Police [2014] NZHC 66 at [20].
33 Ji v R [2015] NZCA 308 at [49].
34 Sok v R, above n 27.35 At [72].
36 Zhu v R, above n 28.
2009. The convictions caused the issue of a deportation liability notice which was served on him on 30 January 2019, and his appeal against deportation was subsequently heard and determined by the Immigration and Protection Tribunal. Having regard to the seriousness of the appellant’s offending, I do not consider that the appellant has shown that the failure of his trial counsel to apply for a discharge without conviction on the grounds that the consequences of convictions and their effect on his resident visa status would be out of all proportion to the gravity of his offending, resulted in a miscarriage of justice. He has also failed to show that an application for discharge without conviction would have ever had any realistic prospect of success, or that his proposed appeal would have any realistic prospect of success.
[68] The appellant has already exhausted his right to appeal against the deportation decision, through the Immigration and Protection Tribunal. He has also claimed refugee status. His efforts in this regard have been unsuccessful. The Immigration and Protection Tribunal is a specialist body with expertise in this type of decision-making. They have carefully considered Mr Sami’s personal and family circumstances and weighed these considerations against the seriousness of his offending.
[69] In my view, this is not a case where the Court should have usurped the function of the immigration authorities. Accordingly, even if Ms Karena could be said to have erred in failing to discuss the possibility of a discharge without conviction with the appellant and by not raising it with the sentencing Judge, that error would not have had any effect on the outcome in this case. An application for a discharge without conviction would inevitably have been declined by the sentencing Judge. There has been no miscarriage of justice in the circumstances of this case.
[70] I also note for completeness that it would not generally be appropriate for this Court to grant an application for a discharge without conviction on appeal when no such application was made in the District Court.37
37 See Ho v R [2016] NZCA 229 at [11]; Winterburn v R [2019] NZHC 104 at [9]–[11]; and
Barrington-Nash v New Zealand Police [2012] NZHC 868 at [7].
[71] I accordingly find that the proposed appeal against conviction is without merit, and there is no basis for granting an application for a discharge without conviction on appeal, where no such application was before the District Court. I therefore find that it is not in the interests of justice to grant the appellant’s application for an extension of time to file his notice of appeal.
Result
[72]The application for an extension of time is declined.
Paul Davison J