Sarandovs v Police
[2014] NZHC 926
•6 May 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-404-000327 [2014] NZHC 926
BETWEEN ARTJOMS SARANDOVS
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 5 May 2014 Appearances:
J Schlebusch for Appellant
J Collins for RespondentJudgment:
6 May 2014
JUDGMENT OF VENNING J
This judgment was delivered by me on 6 May 2014 at 4.30 pm, pursuant to Rule 11.5 of the High
Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Public Defence Service, Auckland
Meredith Connell, Auckland
ARTJOMS SARANDOVS v NZ POLICE [2014] NZHC 926 [6 May 2014]
[1] On 25 September 2013 Artjoms Sarandovs was sentenced to community work of 140 hours on three charges of using a document for pecuniary advantage under s 228(b) Crimes Act 1961.1 On two of the three he had been jointly charged with his brother Arturs Sarandovs who was sentenced to 100 hours of community work on the two charges he pleaded to.
[2] In sentencing Mr Sarandovs to community service Judge Sinclair rejected his application for a discharge without conviction. He now appeals that decision.
Background
[3] The offending involved Mr Sarandovs going to separate appliance stores in Auckland on three occasions, swapping labels from less expensive coffee machine boxes onto more expensive coffee machine boxes and then paying the price for the less expensive machines. Mr Sarandovs then left the stores with the more expensive machines. On the first occasion on 2 March 2011 Mr Sarandovs acted on his own. He obtained a machine worth $2,900 for $400. On the second occasion on 8 March
2011 both brothers acted together and obtained a machine worth $3,379 for $340. On the last occasion on 24 March both brothers again acted together. They obtained a machine worth $3,379 for $340. The loss to the stores was in excess of $8,500.
[4] When charged with the offending Mr Sarandovs denied liability. Following a full defended hearing on 12 December 2012 the Judge found the charges proved. Mr Sarandovs continued to maintain his innocence after conviction when speaking to the probation officer in preparation for sentence.
[5] However, when he came before the Court for sentence Mr Sarandovs ultimately accepted responsibility and sought a discharge without conviction. The discharge was sought on the grounds that the direct and indirect consequences of conviction outweighed the gravity of his offending. In particular Mr Sarandovs argued that the risks of deportation and the ultimate refusal of his application for
residence in New Zealand outweighed the gravity of his offending.
1 NZ Police v Sarandovs DC North Shore CRI-2011-044-001932, 25 September 2013.
[6] Mr Sarandovs is a Latvian citizen with a Latvian passport. However his mother has been in New Zealand since 2003 and is a New Zealand citizen. Other members of his family, his father and his brother both reside in New Zealand.2 Mr Sarandovs came to New Zealand in 2009 having been granted a 30 month work visa, which included a provision permitting him to apply for residency. At the time he was granted a special character waiver in respect of two previous convictions for drug offending in Latvia.
District Court decision
[7] In declining Mr Sarandovs’ application for discharge Judge Sinclair assessed the overall gravity of the offending as reasonably high. She was satisfied there was a risk for Mr Sarandovs that he would be deported but considered it was for the Internal Affairs Department to make its own assessment. The Judge reasoned:
[30] I consider it would be inappropriate to usurp the Internal Affairs assessment processes in any way. My view is the Immigration Service should be fully apprised of all of your circumstances so that it can make its own considered assessment. It appears even if a discharge without conviction is granted the Internal Affairs Department could still decline your application based on you failing to meet the good character requirements.
[31] Relevant and recent decisions from the High Court and Court of Appeal support the view that Internal Affairs should be the agency to deal with all issues in relation to immigration applications and for you, Mr Artjoms Sarandovs, your particular implications if you had to return to Latvia.
[8] Ultimately the Judge concluded that, when she balanced the gravity of the offending against Mr Sarandovs’ particular and specific circumstances, the direct and indirect consequences of conviction did not outweigh the gravity of that offending. The application for discharge was declined accordingly and convictions entered.
The appeal
[9] Mr Schlebusch accepted the offending was, in his submission, “moderately serious” in that there were serious aspects to it and little mitigation but nevertheless
submitted that the Judge erred in finding that the direct and indirect consequences of
2 Mr Sarandovs’ father has been in New Zealand since 2006 and has applied for citizenship. His brother has been living in New Zealand since 2005 and is a permanent resident.
conviction did not outweigh the gravity of the offending. He submitted the Judge was unduly influenced by the consideration that Mr Sarandovs’ immigration status should be left to consideration of the Immigration authorities.
[10] Mr Schlebusch sought to adduce further evidence for the purposes of the appeal, namely confirmation that Mr Sarandovs’ visa had effectively expired last year. Mr Sarandovs was permitted to stay in New Zealand solely for the express purposes of attending the current Court hearings. Ms Collins did not oppose the introduction of that material but submitted that although the document was not before the District Court Judge the Judge had in any event been generally aware that that was the position.
[11] The District Court Judge was well aware of the risk to Mr Sarandovs. As an exhibit to his affidavit Mr Sarandovs attached a letter from an immigration adviser stating the rather common sense proposition that if Mr Sarandovs was discharged without conviction he would have a stronger case for residency.
[12] Mr Schlebusch noted that at the time Mr Sarandovs was granted the visa he was eligible to apply for residence on an adult sibling category. He had applied on that basis. That category is however now closed and no longer available to him. While Mr Sarandovs’ application could still be processed, as his visa expired in May last year once the Court proceedings are completed Mr Sarandovs will effectively be illegally in New Zealand and will be liable to be deported forthwith.
[13] Mr Schlebusch submitted that even if Mr Sarandovs’ application for residency on the adult sibling category could still be pursued while he was out of New Zealand it would be more difficult for him to do so if the convictions stood. Most significantly in Mr Schlebusch’s submission, the conviction would effectively make it more difficult for him having regard to the provisions of the operations manual of New Zealand Immigration, in particular, para A5.25:
A5.25 Applicants normally ineligible for a residence class visa unless granted a character waiver
Applicants who will not normally be granted a residence class visa, unless granted a character waiver (see A5.25.1(b) below), include any person who has been:
...
(c) convicted at any time of any offence involving dishonesty.
[14] Mr Sarandovs would have to obtain a further character waiver if the present convictions remain.
Decision
[15] The approach to an application for discharge without conviction has been recently reconsidered by the Court of Appeal in Z v R.3 What is required is consideration of:
(a) the gravity of the offence;
(b) the direct and indirect consequences of a conviction; and
(c) whether those consequences are out of all proportion to the gravity of the offence.
[16] The latter requirement is the key. The Court must be satisfied that the consequences of a conviction would be out of all proportion to the gravity of the offending before it is entitled to consider whether the discretion conferred by s 106 should be exercised.4
The gravity of the offence
[17] In accordance with Z v R, it is relevant to consider all aggravating and mitigating factors relating to the offending and the offender.5
[18] Mr Schlebusch was right to accept the offending was serious. The Judge was satisfied that on each occasion Mr Sarandovs had removed the label from the less valuable coffee machine box and placed it on the more valuable coffee machine box
in order to mislead the shop employees. He did so dishonestly and without any
3 Z v R [2013] NZCA 142 (CA).
4 At [9].
5 At [27].
lawful belief in his entitlement to do so. As a result he obtained items worth considerably more than what he had paid for. The stores lost over $8,500.
[19] The offending was premeditated and planned, it was not opportunistic.
[20] Next, Mr Sarandovs was challenged after the first incident by a shop employee who followed him to his car. Although he returned initially to the shop he then left when the employee went to seek further assistance. Despite that warning, Mr Sarandovs carried on to offend on two further occasions and involved his brother in the offending.
[21] Mr Sarandovs cannot receive any credit for remorse. As was his right Mr Sarandovs defended the charges. However, even following conviction he initially maintained his innocence. It was only shortly before the sentencing exercise that he was prepared to accept responsibility in order to pursue the application for discharge. Any concern he may have is as to his personal position rather than empathy for the victims of his offending.
The consequences of conviction
[22] Whether Mr Sarandovs’ conviction remains or not his current visa has expired and he is liable to be deported at the end of the legal process. The principal consequence arising from the conviction is that it will make his current application for residence more difficult.
[23] To gain residence in New Zealand, Immigration New Zealand need to be:
[assured] that you and any family included in your application are of good
character. …
As noted, Mr Sarandovs had previously been convicted of drug offending in Latvia in 2002 and 2003. Despite those convictions he was granted a special character waiver when initially granted a visa. By letter of 15 May 2009 the Associate Minister of Immigration authorised the grant of a special direction in relation to the drug convictions. Of note, in the same letter, the Associate Minister recorded that Mr Sarandovs was also granted a character waiver in relation to his non-declaration
of those convictions on the arrival form when he visited New Zealand in December
2007.
[24] Mr Sarandovs was on notice that he would be required to meet character and health requirements if he was to be approved for any resident visa application. Despite that, within two years of that notice and before the expiry of his special visa Mr Sarandovs engaged in the offending which has brought him before the Court.
[25] Although a conviction will mean Mr Sarandovs will have to seek a character waiver because of his convictions involving dishonesty A5.25.1 of the manual provides:
Action
a.An immigration officer must not automatically decline residence class visa applications on character grounds.
b.An immigration officer must consider the surrounding circumstances of the application to decide whether or not they are compelling enough to justify waiving the good character requirement. The circumstances include but are not limited to the following factors as appropriate:
i. if applicable, the seriousness of the offence (generally indicated by the term of imprisonment or size of the fine);
ii. whether there is more than one offence;
iii. if applicable, the significance of the false, misleading or forged information provided, or information withheld, and whether the applicant is able to supply a reasonable and credible explanation or other evidence indicating that in supply or withholding such information they did not intend to deceive INZ;
iv. how long ago the relevant event occurred;
v. whether the applicant has any immediate family lawfully and permanently in New Zealand;
vi. whether the applicant has some strong emotional or physical tie to New Zealand;
vii. whether the applicant’s potential contribution to New
Zealand will be significant.
[26] In particular in the present case b. i., ii., iv., and v. would seem relevant to consideration of Mr Sarandovs’ position. However I am satisfied that the appropriate body to consider and weigh those factors is the Immigration Service rather than this Court.
[27] In Zhang v Ministry of Economic Development Asher J stated:6
[14] In relation to a conviction affecting an offender’s immigration status, or indeed ability to travel overseas, the courts often conclude that it is appropriate for the consequences of conviction to be resolved by the appropriate authorities, rather than the Court attempting to pre-empt that decision-making process by a decision to discharge without conviction: R v Foox, Liang v Police and Steventon v Police. There is nothing that requires the courts to intervene to try and impose their perception of what the right immigration consequences should be. That is best left to the immigration authorities. But a Court’s assessment of culpability in the sentencing exercise may assist those authorities. And there will always be occasions where in a finely balanced case a discharge may be warranted on these types of grounds: R v Hemard. The case for discharge may not be so strong where the details of the offending will be known and closely examined by the relevant authority in any event, than where the query will be only as to prior convictions, for instance in an application for professional certification.
[28] Mr Schlebusch submitted that if Mr Sarandovs was granted a discharge without conviction he would not formally need to obtain a character waiver. He might only be required to provide a police certificate as evidence of good character. The certificate would disclose he had no convictions. Mr Schlebusch submitted that nevertheless the Court could be assured the Immigration Service was aware of Mr Sarandovs’ actions in any event. However, as Asher J noted towards the conclusion of the passage cited, if that is the case, it does not advance the case for discharge.
[29] Finally I note that s 107 refers to the consequences being out of “all” proportion to the gravity of the offence. Some meaning must be attributed to Parliament’s intention in including the word “all” before “proportion”. In my judgment by including that word Parliament intended that the direct and indirect consequences of conviction must clearly outweigh the gravity of the offending. It
must not be a finely balanced matter.
6 Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011.
Result
[30] For the above reasons I am not satisfied in this case that it can be said the
consequences of conviction are out of all proportion to the gravity of Mr Sarandovs’
offending. The appeal is dismissed.
Venning J
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