Simati v Police
[2025] NZHC 579
•28 February 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-662
[2025] NZHC 579
BETWEEN DANIEL SIMATI
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 25 February 2025 Appearances:
L Burbage and J Liu for the Appellant A Lin for the Respondent
Judgment:
28 February 2025
JUDGMENT OF LANG J
[on appeal against refusal to grant discharge without conviction]
This judgment was delivered by Justice Lang On 28 February 2025 at 12.00 noon
Registrar/Deputy Registrar Date:…………………………
Solicitors/counsel:
Public Defence Service, Auckland
Kayes Fletcher Walker, Crown Solicitor at Manukau
SIMATI v POLICE [2025] NZHC 579 [28 February 2025]
[1] Mr Simati pleaded guilty in the District Court to a charge of assault with a weapon.1 On 29 October 2024, Judge A M Wharepouri declined an application by Mr Simati for an order under s 106 of the Sentencing Act 2002 discharging him without conviction.2 Mr Simati appeals against the Judge’s decision.
[2] The principal ground relied on by Mr Simati in support of his application was the likelihood that a conviction would result in him being deported from New Zealand. Unfortunately, however, the parties did not make the Judge aware of Mr Simati’s correct immigration status at the time that he made his decision. It is therefore necessary to reconsider afresh the likely effect that a conviction will have in relation to the issue of deportation.
Approach
[3] An application for discharge without conviction is governed by s 106 of the Sentencing Act, which relevantly provides as follows:
106 Discharge without conviction
(1) If a person who is charged with an offence is found guilty 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.
…
[4] In applying s 106, the Court must follow the guidance contained in s 107 of the Sentencing Act. This provides:
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.
[5] A court considering an application for discharge under s 106 must consider three issues.3 It must first assess the gravity of the offending having regard to the facts
1 Crimes Act 1961, s 202C.
2 New Zealand Police v Simati [2024] NZDC 26033.
3 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222, at [16]–[17].
of the particular case. This exercise is not restricted to the aggravating and mitigating features of the offending. It may also include aggravating and mitigating factors personal to the applicant. Next, the court must identify the direct and indirect consequences of a conviction being entered. In this context there must be a “real and appreciable” risk that a particular consequence will occur.4 Thirdly, the court must determine whether the consequences of a conviction would be out of all proportion to the gravity of the offending. There is a residual discretion not to grant a discharge but that will rarely be exercised where the statutory criteria have been met.
The offending
[6] On 8 April 2024, Mr Simati was driving his vehicle in a supermarket car park. The victim of his offending walked across the road immediately in front of Mr Simati’s vehicle. This prompted Mr Simati to sound his horn. The victim objected and words were then exchanged between the victim and Mr Simati. Mr Simati’s partner, who was in the front passenger seat of the vehicle, joined in the verbal altercation.
[7] Mr Simati got out of his vehicle, grabbed the victim by his shirt collar and chastised him for speaking to his partner in a manner that Mr Simati considered to be abusive. The victim then said he was going to call the police. At this point, Mr Simati got back into his vehicle and began to drive away. As he did so, the victim approached Mr Simati’s vehicle and struck the back window with his fist. Mr Simati’s partner’s daughter was seated in the rear seat adjacent to the window.
[8] Mr Simati then stopped his vehicle and then got out. He was incensed that the victim had struck the window of his vehicle in close proximity to where his partner’s daughter was sitting. He walked up to the victim and punched him. This led to a scuffle between Mr Simati and the victim. A short time later, Mr Simati went to his vehicle and took out a metal spanner. He threw this at the victim, striking him on the head. Members of the public then intervened and the altercation came to an end. The victim suffered a cut to the top of his head that required two stitches to close.
4 DC (CA47/2013) v R [2013] NZCA 255, at [43].
Fresh evidence
[9] Mr Simati seeks leave to tender further evidence in support of his appeal. This takes the form of an affidavit sworn by Ms Ruth Burgess, a lawyer who specialises in immigration law.
[10] The principles to be applied when determining an application to adduce fresh evidence on an appeal are set out in the following passage from the advice given by the Privy Council in Lundy v R:5
The Board considers that the proper basis on which admission of fresh evidence should be decided is by the application of a sequential series of tests. If the evidence is not credible, it should not be admitted. If it is credible, the question then arises whether it is fresh in the sense that it is evidence which could not have been obtained for the trial with reasonable diligence. If the evidence is both credible and fresh, it should generally be admitted unless the court is satisfied at that stage that, if admitted, it would have no effect on the safety of the conviction. If it considers that there is a risk of a miscarriage of justice if the evidence is excluded, it should be admitted, notwithstanding that the evidence is not fresh.
[11] In this context the overriding consideration is what is required in the interests of justice.6
[12] The evidence given by Ms Burgess is not fresh because, with due diligence, Mr Simati’s counsel could have placed it before the Judge at sentencing. However, the respondent accepts that the evidence is cogent and credible. The evidence also covers events that occurred after Mr Simati was sentenced in the District Court. The respondent therefore does not oppose leave being granted to adduce the affidavit in support of the appeal. I make an order granting leave accordingly.
Mr Simati’s immigration status
[13] Mr Simati is a Samoan national. He arrived in New Zealand in 2017 under the authority of a visitor’s visa. This required him to leave New Zealand when the visa expired. The evidence does not disclose when the visa expired but it is common ground that Mr Simati remained in New Zealand unlawfully after this occurred.
5 Lundy v R [2013] UKPC 28 at [120].
6 At [119].
[14] Mr Simati is now 31 years of age. He has no previous criminal convictions. He has been in a relationship with his partner, who is a New Zealand citizen, for approximately three years. The relationship has produced two children, aged one year nine months and two months respectively. Mr Simati’s partner also has a five-year- old daughter from a previous relationship.
[15] On 12 December 2023, Mr Simati was granted a temporary visa to remain in New Zealand for a period of 12 months. On 8 March 2024 he applied for a partnership work visa to enable him to assist his partner in a cleaning business that she wished to set up. This application has not yet been determined. As already noted, the offending occurred on 8 April 2024. The Judge was not aware that Mr Simati had applied for the partnership work visa and that this affected his immigration status.
[16] The Minister of Immigration has the power under s 22 of the Immigration Act 2009 (the Act) to certify immigration instructions relating to resident and temporary visas. These are set out in a document called the Immigration Operational Manual. They specify criteria to be met by visa applicants, as well as matters that may be taken into account in assessing an applicant’s eligibility for a visa. These include the character requirements for visa applicants. Applicants must be of “good character”.
[17] When the immigration authorities (Immigration New Zealand) became aware that Mr Simati had committed the present offence, they advised him on 2 December 2024 that they had completed an initial assessment of his application for a partnership work visa. This had led to a concern that he may not meet the character requirements for a visa of the type that he sought. He was asked to provide his comments regarding this concern. He was also asked to provide Immigration New Zealand with any material he considered to be relevant to an assessment as to his character. This would include material relating to the offence including the summary of facts, the Judge’s sentencing remarks and the present judgment.
[18] If the material that Mr Simati provides is sufficient to allay the concerns currently held about his character, his application for a partnership work visa will be processed in the usual way. If it is not, he will need to apply for a waiver of the
character requirement. The fact that the offending occurred means it is likely that Mr Simati will be required to apply for a character waiver regardless of whether he is discharged without conviction.
[19] If Mr Simati does not obtain a character waiver, Immigration New Zealand will determine his application for a partnership work visa in light of that fact. If the application is declined and he does not leave New Zealand voluntarily, he may be issued a deportation liability notice.
[20] On 6 December 2024, Immigration New Zealand advised Mr Simati that, as from 13 December 2024, he was entitled to remain in New Zealand under an interim visa for a six-month period or until his application for a partnership work visa has been determined (if at an earlier date). If the application is granted, he will be issued with the visa he has applied for. He would thereafter no longer be residing in New Zealand under the authority of the temporary or interim visa. If the application is declined, the interim visa will expire 21 days later. Mr Simati would then be required to leave New Zealand within that period.
[21] The fact that Mr Simati has committed an offence whilst in New Zealand under the authority of a temporary visa may also trigger liability for deportation under s 157 of the Act. Ms Burgess explains that, unlike those who hold a resident’s visa, liability for deportation for Mr Simati flows from the commission of an offence rather than the entry of a conviction. In that event s 157 is triggered and a deportation liability notice will eventually be issued unless there is an intervening visa application and a character waiver is granted. Where a person has applied for another class of visa, Immigration New Zealand will usually await the outcome of that process, including any application for character waiver, before issuing a deportation liability notice. This appears to be the situation in which Mr Simati now finds himself.
[22] If a deportation liability notice is issued, Mr Simati would have the right within 14 days to provide good reasons why the deportation should not proceed.7 He would also have the right to appeal to the Immigration and Protection Tribunal (the
7 Immigration Act 2009, s 157(2).
Tribunal) against deportation on humanitarian grounds.8 This would require him to establish that he would need to show that exceptional circumstances of a humanitarian nature exist that would make it unjust or unduly harsh for him to be deported, and that in all the circumstances it would not be contrary to the public interest to allow him to remain in New Zealand.9
[23] If this should fail, Mr Simati could ask the Minister of Immigration to exercise the discretion to cancel or suspend the deportation liability notice under s 172 of the Act or request a special direction under s 378. However, Ms Burgess is of the opinion that the existence of a conviction would make these two options highly unlikely to succeed.
This case
The overall gravity of the offending
[24] As the Judge noted, the offending involved several aggravating features.10 They include the use of a weapon, an attack to the head of the victim and infliction of a moderate injury.
[25] The gravity of the offending is mitigated by the fact that it involved a degree of provocation from the victim. In addition, Mr Simati entered an early guilty plea, expressed remorse for his offending and attended a restorative justice conference where he apologised to the victim. He also performed community work on a voluntary basis and made an offer to meet the cost of repairing a gold chain belonging to the victim that was broken during the altercation. In addition, he has completed a “Stopping Violence” course.
[26] Like the Judge, I am satisfied that the overall gravity of Mr Simati’s offending lies in the low to moderate range.
8 Section 206(1)(b).
9 Section 207.
10 New Zealand Police v Simati, above n 2, at [4].
The likely consequences of conviction
[27] It appears to be common ground that the principal consequences of a conviction relate to the effect that this would have on Mr Simati’s application for a character waiver. Although a discharge without conviction would not prevent Immigration New Zealand from declining the character waiver, it would materially increase the chances of a waiver being granted. Should that occur, Mr Simati may be able to obtain the partnership work visa that he seeks. In that event a deportation liability notice will not be issued.
[28] However, two factors unrelated to the present offending may affect Mr Simati’s prospects of obtaining a character waiver. The first is that Mr Simati remained in New Zealand after his initial visitor’s visa expired. The second is that he disclosed in his application for a partnership work visa that he has already been working for his wife. Ms Burgess says that Immigration New Zealand regards any breach of visa conditions as serious, and as an indication that the applicant may not comply with visa conditions in the future.
[29] Ms Burgess considers that both Immigration New Zealand and the Tribunal are likely to regard Mr Simati’s willingness to work and his family circumstances as being important factors. They will be relevant not only to the character waiver issue but also to any decision as to whether Mr Simati should be deported. She provides the following insight into the role these factors are likely to play in relation to both issues:
…
Like Mr Singh,11 if convicted the defendant [Mr Simati] will be caught by section 157 of the Immigration Act 2009. However, Mr Singh’s situation can be distinguished from the defendant’s circumstances not just because the charges were more serious and carried a higher penalty, but because he had no partner or dependent New Zealand citizens relying on him. It is the presence of family and the effect of both the offence and conviction on innocent New Zealanders that carry weight with both INZ [Immigration New Zealand] and the IPT
{Immigration Protection Tribunal] in any appeal process.
If convicted these family circumstances will inform the character waiver assessment on the defendant’s current partnership work visa application.
11 The appellant in Singh v R [2022] NZCA 23, a case referred to by Ms Burgess.
The defendant’s family may provide humanitarian grounds for both the character waiver and any appeal. Both Courts and INZ have recognised that the deportation of a defendant can cause serious harm to their family especially if this involves a New Zealand-based family unit being broken up.
…
Despite [working in breach of the terms of his visa], the defendant’s will to support his family and reduce any state burden of care for the family is a humanitarian factor that will be favourably considered in any appeal and by INZ. The care of vulnerable New Zealand citizens is a positive public policy consideration in any appeal assessment or INZ character waiver.
In my opinion, the defendant’s family circumstances may be enough to gain a character waiver from INZ. However, the character waiver process is discretionary and while immigration officers are required to give reasons for their decision (and therefore can be held to standards of fairness and natural justice) it is not a guaranteed outcome. Should the character waiver be declined and a DLN issued then the defendant’s family circumstances would be likely to meet the humanitarian limb of any appeal test.
(Original footnotes omitted).
[30] I consider Ms Burgess’ evidence on these issues to be important in the present context. If her evidence is correct, a character waiver is not a guaranteed outcome but Mr Simati’s family circumstances and willingness to work may lead to the waiver being granted even though Mr Simati has committed and/or been convicted of the present offence. Ms Burgess considers the same factors are likely to weigh heavily in any decision by Immigration New Zealand as to whether to issue a deportation liability notice and by the Tribunal in any subsequent appeal.
[31] Ms Burbage emphasises on Mr Simati’s behalf that he and his partner are in a financially precarious position. Legal aid is not available for an appeal to the Tribunal and Mr Simati does not have the means to engage a lawyer for that purpose. He would therefore be forced to pursue an appeal without legal representation. She points out that a lack of legal representation has already jeopardised Mr Simati’s application for a partnership work visa. It led to him disclosing that he had already been working in his wife’s business in breach of the terms of his temporary visa. Ms Burbage submits that, if Mr Simati represents himself on an appeal to the Tribunal, his prospects of being able to remain in New Zealand are significantly reduced.
[32] I do not accept this submission because I have no doubt that the Tribunal will be well aware of the significance of Mr Simati’s family circumstances. Lack of legal representation should not affect Mr Simati’s prospects of success if he is required to appeal to that body.
[33] In assessing the likely consequences of a conviction I need to bear in mind Ms Burgess’ evidence that Mr Simati’s potential liability for deportation arises as a result of the offending rather than the existence of a conviction. I accept there is a real and appreciable risk that the immigration authorities may decline to grant a character waiver and this would obviously jeopardise Mr Simati’s application for a partnership work visa. However, in light of the evidence given by Ms Burgess I consider it unlikely that Immigration New Zealand will elect to issue and enforce a deportation liability notice. Deportation would require Mr Simati’s family unit to disintegrate because there would be no reason for his partner and the three children to accompany him back to Samoa. In all probability they would remain in New Zealand. This would result in the two youngest children being separated from their father at a very early age.
[34] Bearing in mind Ms Burgess’ evidence I consider it even more unlikely that, even if Mr Simati was to represent himself on an appeal, the Tribunal would find that he could not establish exceptional circumstances of the type necessary to avoid deportation.
[35] Taking these factors into account I consider the likely consequences of a conviction are also low to moderate. It follows that Mr Simati has failed to establish that the direct and indirect consequences of conviction are out of all proportion to the gravity of the offending.
Result
[36]The appeal against refusal to grant a discharge without conviction is dismissed.
Lang J
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