Singh v Police
[2019] NZHC 417
•12 March 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2018-404-000379
[2019] NZHC 417
BETWEEN BALJIT SINGH
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 12 March 2019 Appearances:
SG Graham for Appellant
B Charmley for Respondent
Judgment:
12 March 2019
ORAL JUDGMENT OF TOOGOOD J
[Appeal against refusal to grant a discharge without conviction]
SINGH v NEW ZEALAND POLICE [2019] NZHC 417 [12 March 2019]
Introduction
[1] On 22 February 2017, Baljit Singh pleaded guilty to a solitary charge of common assault under s 196 of the Crimes Act 1961.1 He applied for a discharge without conviction pursuant to s 106 of the Sentencing Act 2002.
[2] On 8 August 2017 Judge J Moses declined Mr Singh’s application for discharge2 and sentenced him to undertake 50 hours’ community work.
[3] Mr Singh is an Indian national, now aged 35. He holds a New Zealand resident's visa, but he is not a citizen. Since being convicted and sentenced, he has been served with a deportation liability notice. It appears this came as something of a surprise to Mr Singh. He now appeals his conviction; first, on the basis that he was not fully informed as to the potential repercussions a conviction would have on his immigration status before pleading guilty; second, Mr Singh also appeals Judge Moses’ refusal to discharge him without conviction.
The offending
[4] In the early hours of the morning on 16 December 2015, Mr Singh was at his home address in Manurewa. At the time, Mr Singh shared the address with a number of others, including the victim, as co-tenants.
[5] Earlier that night, Mr Singh and the victim had become involved in an argument over tenancy issues. At around 12:45 am, the victim went to bed. I infer that the argument with Mr Singh had become somewhat heated, because he entered her bedroom a short time later, unannounced, and pulled the blankets off her. In the process, he grabbed the victim by her clothing, breaking her bra strap.
[6] The victim left her bedroom; but Mr Singh followed her into the hallway and the pair began to argue again. Mr Singh slapped the victim in the face and she fell to the ground. She got back to her feet only for Mr Singh to slap her again. One of
1 The maximum penalty is one year’s imprisonment.
2 Police v Singh [2017] NZDC 17439.
Mr Singh’s other flatmates intervened and tried to restrain him. Despite this he was able to kick the victim in the stomach.
Applications for leave
[7]As a preliminary matter, Mr Singh sought leave to:
(a)appeal out of time;3 and
(b)adduce fresh evidence, namely an affidavit deposed by him dated 7 November 2018.4
[8] The applications arose due to Mr Singh only recently being made aware of his precarious immigration status. The Police did not oppose leave being granted; and given there is no prejudice to them I granted leave on both matters.
Further background
[9] Mr Singh came to New Zealand on 7 April 2011. On 17 December 2014, he was granted a resident's visa. He took up work at BP and now works there as a customer service representative; he also has a job at a McDonald’s restaurant in Manurewa.
[10] On 15 October 2017, Mr Singh entered an arranged marriage with his wife, who remains resident in India.
[11] After being arrested, Mr Singh was originally charged with male assaults female.5 In December 2015, Mr Singh instructed Mr Le’au’anae, and says he told counsel that he wanted to defend the charge. A Judge-alone hearing was scheduled but was unable to go ahead due to timetabling issues and the unavailability of interpreting services. The case was adjourned.
3 Criminal Procedure Act 2011, s 248(4).
4 Section 335.
5 Crimes Act 1961, s 194(b); the maximum penalty is two years’ imprisonment.
[12] Mr Le’au’anae has sworn an affidavit, dated 18 January 2019. He says that in the intervening period he advised Mr Singh that it might be prudent to plead guilty to a lesser charge. This would resolve the matter promptly and might assist in a subsequent application for a discharge without conviction. Mr Singh agreed to this course.
[13] Mr Le’au’anae then approached the prosecution and proposed to resolve the matter on the basis of Mr Singh pleading guilty to common assault under s 9 of the Summary Offences Act 1981.6 The prosecution baulked at this offer, but subsequently agreed to accept a guilty plea to common assault under the Crimes Act, which has a higher maximum penalty than the charge of assault under the Summary Offences Act; but the maximum of one year's imprisonment under the Crimes Act was half that of the charge of being a male assaulting a female. In that event, Mr Singh agreed to accept the lesser charge and a guilty plea was entered.
[14] In his affidavit, Mr Singh said he pleaded guilty on the basis of Mr Le’au’anae’s advice; he was told his offending was not serious and an application for discharge would have “a reasonably good chance of success”. During these discussions, Mr Singh says Mr Le’au’anae asked him about his employment. Mr Singh said that a conviction would result in him losing both his jobs at BP and McDonald’s.
[15]Mr Singh says the matter of his immigration status was not broached. He said:
Mr Le’au’anae did not ask me any more questions about the problems I could face with a conviction. He did not discuss my immigration status, nor did he provide any advice about the consequences a conviction would have on my residency status.
[16] This is confirmed by Mr Le’au’anae. He says that Mr Singh only expressed concern about the impact his conviction would have on his employment. This became the focus of the discharge application. Mr Le’au’anae acknowledges that he did not ask Mr Singh about his immigration status; neither did Mr Singh indicate that he was not a New Zealand citizen.
6 The maximum penalty is six months’ imprisonment or a fine of $4,000.
[17] As I have said, Mr Singh’s application for discharge was declined on 8 August 2017. It seems he only became aware of the impact a conviction could have on his immigration status when he was notified that he was liable for deportation on 21 May 2018.
[18] Since that date, Mr Singh has completed the sentence of community work as well as an anger management programme.
Appeal against conviction on grounds that guilty plea should be set aside
Submissions
[19] The crux of Mr Singh’s argument that his conviction on the basis of a guilty plea should be set aside is that he was not fully informed when he entered the plea and instructed Mr Le’au’anae to make an application for a discharge without conviction. He says that is because he did not know that a conviction would pose problems to his immigration status.
[20] The respondent’s position is that there was no information before Mr Le’au’anae that Mr Singh’s immigration status was at risk because Mr Le’au’anae had no reason to think that Mr Singh was not a New Zealand citizen. That is in response to the proposition by Mr Graham, now appearing for Singh, that Mr Le’au’anae ought to have raised immigration status because Mr Singh needed an interpreter for the trial. There is no evidence, however, that Mr Le’au’anae had any difficulty understanding Mr Singh's instructions.
Discussion
[21] A conviction appeal must be allowed if a miscarriage of justice has occurred for any reason.7 A miscarriage of justice includes any error, irregularity, or occurrence in, or in relation to, or affecting the trial that has created a risk that the outcome of the trial was affected.8 A trial includes a proceeding in which the appellant pleaded guilty.9
7 Criminal Procedure Act 2011, s 232(2)(c).
8 Section 232(4).
9 Section 232(5).
[22] It is only in exceptional circumstances that an appeal against conviction will be entertained following entry of a plea of guilty.10 The appellant must show that a miscarriage of justice will result if the conviction is not overturned. Where the appellant fully appreciated the merits of his or her position, and made an informed decision to plead guilty, the conviction cannot generally be impugned.
[23] I acknowledge that Mr Le’au’anae did not enquire as to Mr Singh’s immigration status, but I am not prepared to find that he was at fault. There was nothing in the circumstances of the prosecution to suggest to counsel that Mr Singh was not a New Zealand citizen. Mr Singh, however, must have known the position and he must have known, from information provided to him at the time he received his visa, that a conviction would at least give rise to questions about his immigration status. He cannot now criticise Mr Le’au’anae for not raising the issue with him when he did not do so himself. Mr Le’au’anae’s failure to address the issue did not, in my view, constitute giving erroneous legal advice or any inadequate service by counsel.
[24] I am not persuaded, in any event, that there has been a miscarriage of justice. It is relevant that Mr Le’au’anae advised Mr Singh to plead guilty because the evidence against him was strong. As he said in his affidavit, “the evidence clearly demonstrated there was an assault on the complainant” and “it was also clear that [she] was going to proceed with her complaint”. I note also that there was another witness to those parts of the assault that took place in the hallway. Mr Graham quite reasonably accepts that there was, in fact, no defence and no benefit to be gained by entering a plea of not guilty. Even if Mr Le’au’anae had raised the question of immigration status with Mr Singh it is highly probable that Mr Le’au’anae would have maintained his advice, that is, to plead guilty on the basis that a guilty plea would serve him best in making an application for a discharge.
[25] Moreover, the plea of guilty was entered as part of a package arrangement with the prosecution to reduce the charge, which I have to say would have been entirely appropriate, of male assaulting a female. So the downgrading of the charge to common assault was favourable to Mr Singh, as was the end sentence. The adverse
10 R v Le Page [2005] 2 NZLR 845 (CA) at [16].
consequences to Mr Singh’s immigration status would have provided a further ground for discharge to advance before Judge Moses, but that needs to be the real focus of the appeal rather than the fact that Mr Singh entered a guilty plea in the first place. He did not say in his affidavit that he was not guilty of the offence. Mr Singh has not raised any legal argument that might have affected the prospect of a conviction, and the plea may be taken to have been a true and appropriate acknowledgement of his guilt. The ignorance of the effect of his guilt and conviction on his immigration status does not alter that assessment.
Appeal against refusal to grant discharge without conviction
Judge Moses’ decision
[26] The primary ground for discharge advanced before Judge Moses was the impact of a conviction on Mr Singh’s employment. Mr Singh argued that he would immediately lose both his jobs if his respective employers found out about his conviction. That possibility was rejected by Judge Moses. The Judge said:
[10] In my view this is… moderately serious offending involving a female victim who was slapped hard enough to go to the ground and who was then kicked in the stomach. The victim impact statement from her indicates that as a result of falling down her thumb was hurt and she had swelling to her hand…
[11] I am not satisfied that the consequences that you set out in support of the application are such that a conviction being entered would be out of all proportion to the seriousness of the offending and in those circumstances the application for a discharge without conviction is declined.
Approach to appeal
[27] An appeal against a refusal to grant discharge without conviction is a composite appeal against both conviction and sentence. Generally, such an appeal will succeed if the sentencing Judge made an error such that a miscarriage of justice occurred.11 However, as with any appeal against conviction, the appeal must be allowed if a miscarriage of justice has occurred for any reason.12
11 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [12]-[13] and s 232(2)(b) of the Criminal
Procedure Act 2011.
12 Section 232(2)(c).
[28] Here, it is not suggested that Judge Moses made an error insofar as he directed his attention to the employment issues. Rather, Mr Singh submits that a miscarriage of justice occurred because information about the impact a conviction would have on his immigration status was not before the Judge. Although he has alleged error on the part of Mr Le’au’anae in not making enquiries about immigration status, I have held there was no error by Mr Le’au’anae. But the Supreme Court has said:13
… there will be cases, rare cases … where the conduct of counsel, although reasonable in the circumstances in which it occurred, nevertheless can be shown to have given rise to an irregularity in the trial that prejudiced the accused’s chance of acquittal (or conviction of a lesser offence) such that the appeal Court is satisfied there was a miscarriage of justice. The Court will always reserve the flexibility to identify and intervene to prevent a miscarriage of justice however caused.
[29] The ultimate enquiry therefore, irrespective of whether Mr Le’au’anae erred in the conduct of his representation of Mr Singh, is whether justice has miscarried through the absence of any consideration by the District Court of the immigration consequences of a conviction. I will determine the appeal on that basis.
[30] A discharge must not be granted 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.14 This assessment requires a three-step analysis:15
(a)assessing the gravity of the offending. That means first looking at all the relevant circumstances of the offending and of the offender, and then standing back and deciding how serious the offending is;
(b)determining the direct and indirect consequences of a conviction for the offender; and
(c)determining whether those consequences are out of all proportion to the gravity of the offending.
13 Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [67].
14 Sentencing Act 2002, s 107.
15 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [8]-[9].
Gravity of the offending
[31] Mr Graham argues that the offending is at “the lower-mid end of the spectrum of severity and culpability”. He notes that the victim was not seriously injured and that none of the aggravating factors in s 9 of the Sentencing Act was present. Further, Mr Singh has no history of offending and the assault, therefore, may be considered to be completely out of character.
[32] Mr Graham’s initial assessment of the seriousness of the offending was partly premised on what he now acknowledges to be a mistaken understanding of the nature of the charges. In any event, counsel's point is that although there was an assault which involved more than one blow being struck, the nature of the offending was not as serious as in some other cases which he has cited and in which a discharge was granted.
[33] As noted by Judge Moses, Mr Singh assaulted the victim four times and she did suffer some mild injuries as a result. But the essence of Mr Singh’s criminality lies not so much in the degree of violence or the injury done to the victim as in the nature of the attack. Mr Singh entered the victim’s bedroom and pulled her out of bed. He struck her in the face; the first time with such force that she fell to the ground, and the second time after she had climbed to her feet again. In this way, his offending was unprovoked and concerningly measured. Not only that, while being restrained by another flatmate he kicked the victim in the stomach. The seriousness of the offending was aggravated by the victim's vulnerability, having been dragged out of her bed and the invasion of her privacy and personal security. She was a resident of the property and entitled to be safe there. I do not agree with Mr Graham's assessment, therefore, that the offending was at the lower mid-end of the spectrum. I accept Judge Moses' description of the offending, with which Ms Charmley respectfully concurs, as moderately serious.
Direct and indirect consequences of a conviction
[34] There is no real dispute as to the consequences of a conviction for Mr Singh. He has been served with a deportation liability notice. His only recourse is to apply
to the Minister to cancel his liability for deportation16 or appeal to the Immigration and Protection Tribunal on humanitarian grounds.17 Mr Singh has chosen to pursue the latter option, but Mr Graham is not optimistic about his chances of success. As it stands, Mr Singh is liable to be served with a deportation order at any time.18
[35] For the Police, Ms Charmley accepts that liability for deportation is a serious consequence, and indeed it is.
Consequences out of all proportion
[36] Mr Singh says deportation, which is currently a real and immediate risk for him, would have a disproportionate effect on him when compared to the seriousness of his offending. Since arriving in New Zealand eight years ago, he has established himself in a tight-knit community that he considers to be family. After immigrating here, Mr Singh studied towards and completed a diploma in computing at the Royal Business College; he says this qualification would not be recognised in India. Mr Singh fears that he will struggle to find employment there or, that if he did, this would be substantially less lucrative. He says also that his wife had planned to relocate to New Zealand after their marriage, but her arrival has been delayed by some immigration issues. However, the threat of his deportation now jeopardises this possibility and certainly it would seem, if he is deported, there is no prospect that she would come here.
[37] Mr Graham submits that these consequences are severe and extreme, while the offending was only a “momentary lapse in judgment which resulted in a common assault of relatively minor severity”.
[38] Ms Charmley differs from that view. She accepts that deportation would be a serious consequence for Mr Singh but says that would not be out of proportion to the offending. Moreover, Ms Charmley points to the courts’ general reticence to intervene
16 Immigration Act 2009, s 172.
17 Section 206.
18 Section 175.
with decisions more appropriately left to the immigration authorities. In Ho v R the Court of Appeal said:19
[15] … It is a matter for immigration services to decide whether to renew [a defendant’s] visa, having regard to factors including the Court’s assessment of the gravity of… offending. The Court should not usurp that assessment.
[39] The reluctance of courts to intervene in the decision-making of specialist bodies such as Immigration New Zealand is most often evident when the outcome cannot reasonably be predicted; in such cases, the consequence of a conviction will be the risk that an offender’s immigration status may change.20 Unless clarifying evidence is filed, the extent of that risk is necessarily difficult to quantify.
[40] Rahim v R was a case where such evidence was filed. Mr Rahim was convicted and sentenced in the District Court on a charge of indecent assault. The Court of Appeal, after granting leave to bring a second appeal, characterised the assault – a fleeting touch on the victim’s bottom while Mr Rahim and she shared a lift – as “low on the scale of seriousness”.21 In support of his submissions about the risk of deportation, Mr Rahim provided the District Court with an affidavit from a respected and experienced immigration lawyer. In allowing Mr Rahim’s appeal, the Court of Appeal found the evidence useful in assessing the level of the risk of deportation. The Court said the evidence established:22
…that the real and appreciable risk is significantly higher than the mere prospect of deportation; it is that, after Mr Rahim has undergone all of the statutory processes, a conviction is likely to result in his being required to leave New Zealand.
[41] In that case, Mr Rahim’s deportation from New Zealand would have split him from his family. No such evidence has been filed by Mr Singh. And it would not be appropriate to apply the opinion evidence provided to the Court in Rahim to this case. For one thing, a conviction for indecent assault may be rated by the immigration authorities as a more serious type of offending than common assault. The likelihood of deportation must necessarily be assessed by Immigration New Zealand on a case-
19 Ho v R [2016] NZCA 229. And see Rahim v R [2018] NZCA 182 at [28].
20 Rahim v R at [29].
21 At [22].
22 At [30].
by-case basis. Therefore, while I appreciate that Mr Singh faces the risk of deportation, I am unable to quantify that risk to any significant degree.
[42] There may be occasions where a discharge is warranted in finely balanced cases; but it should be noted that the case for discharge may not be strong where the details of the offending will be known and closely examined by the relevant authorities.23
[43] Counsel have referred me to a number of other discharge without conviction decisions made in the context of an impending risk of deportation.24 I have considered them, but the variations in the facts of those cases mean that they are not particularly helpful to my assessment, which must necessarily turn on the facts of this case.
[44] Approaching the matter in that way, I have determined that the serious consequence supposed by the risk of deportation cannot properly be held to be out of proportion to the seriousness of Mr Singh’s offending. Mr Singh’s offending was not a momentary lapse of judgment of the kind that characterised Mr Rahim’s offending, for example. It was an unprovoked attack on a vulnerable and unprepared victim that took place in the safety of her own home. The domestic context in which the attack took place is concerning. I am also minded that Mr Singh did not relent of his own accord; he needed to be restrained; and despite that, continued to lash out at the victim, kicking her in the stomach. The offending in Rahim, where the appeal was allowed, was much less serious in its impact on the victim.
[45] The financial loss caused to Mr Singh by a potential deportation seems to be largely speculative and, even if established, not particularly acute. He says that the qualification he has attained here will not be recognised in India but advances no other evidence to support that proposition. In any case, the professional experience he has accumulated since coming to New Zealand will not be made redundant by his deportation. I accept that, as a matter of general impression, employment prospects in India may be poorer than in New Zealand; but without evidence of specific hardship
23 Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011 at [14].
24 Chand v Police [2017] NZHC 2188; Jeon v Police [2014] NZHC 66; Kumar v Police [2015] NZHC 3293.
or unfairness, I do not consider it appropriate for the Court to place weight on the significance of relocation to a country with generally worse economic conditions. The financial consequence of deportation to India, if relevant, is a matter best considered and weighed by the immigration authorities.
[46] Unlike the cases of Jeon, Chand, Rahim and Kumar, Mr Singh has no immediate family in New Zealand. His deportation to India will not separate him from his family. On the contrary, it would create the opportunity for reintegration with his wife, albeit not in New Zealand, and with his parents. I am also disinclined to give undue regard to what seems at this stage are aspirational travel plans and I am conscious that Mr Singh and his wife married only after he was convicted of the offending.
[47] Mr Singh has avenues of challenging the decision to serve him with a deportation liability notice. He has already made use of one of these and his success is undetermined at present. I consider this to be a situation where it is more appropriate to leave the matter to the immigration authorities. They will be fully aware of the nature of Mr Singh’s offending and the sentence he received. It is not unreasonable to expect that the decision-making undertaken by the relevant immigration authorities, supervised by their own processes of review and appeal, will be fair and measured. What has followed from Mr Singh’s conviction so far, insofar as his immigration status is concerned, is a routine matter of procedure. The gravity of his offending is not so slight, and the hardship which he anticipates by the risk of deportation is not so grave, that this Court should feel compelled to subvert that procedure.
[48] For that reason, I do not consider a miscarriage of justice has occurred, notwithstanding that information about Mr Singh’s immigration status was not before the District Court Judge. Moreover, I agree with all other aspects of the Judge’s decision.
Results
[49]I dismiss the appeals against the conviction entered in the District Court.
…………………….
Toogood J
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