Singh v Police
[2024] NZHC 1797
•4 July 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-106
[2024] NZHC 1797
BETWEEN AGYAPAL SINGH
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 21 May 2024 Appearances:
J J Rhodes for Appellant
L S Seybold for Respondent
Judgment:
4 July 2024
JUDGMENT OF BOLDT J
[Appeal against conviction and sentence]
This judgment was delivered by me on 2024 at am/pm
Registrar/Deputy Registrar
Solicitors:
Meredith Connell, Auckland for Respondent
SINGH v NEW ZEALAND POLICE [2024] NZHC 1797 [4 July 2024]
Introduction
[1] On 7 March 2024, the appellant, Mr Agyapal Singh, appeared for sentence after pleading guilty to two charges of driving with excess breath or blood alcohol and one of driving at a dangerous speed.
[2] Mr Singh unsuccessfully sought a discharge without conviction pursuant to s 106 of the Sentencing Act 2002. Judge N Mathers convicted Mr Singh and sentenced him to 120 hours of community work, 12 months’ supervision, disqualification from driving for six months (backdated by six months in recognition of his need to drive as part of his employment) and an alcohol interlock sentence lasting 12 months.1 On 25 March 2024, Judge Mathers delivered her reasons for refusing the discharge without conviction.2 Mr Singh appeals against that refusal.
[3] Mr Singh is an Indian national. He has been living in New Zealand since 2013 and is in the process of seeking a resident visa. His principal submission is that convictions on the three charges may result in his failing to meet the good character requirements of his existing visa and the resident visa he hopes to obtain. He argues that if his convictions stand, he is unlikely to be able to remain in New Zealand and will be forced to return to India, with serious adverse consequences both for him and his young family. He argues this indirect consequence of conviction will be out of all proportion to the gravity of his offending.
Background
[4] Mr Singh’s offending dates back to 2020 and 2021.3 On 14 November 2020, he was driving in Manurewa. His driving caught the attention of Police, and he was pulled over. Mr Singh was found to have a blood alcohol level of 219 mg of alcohol per 100 ml of blood, more than four times the legal limit.
1 Police v Singh [2024] NZDC 5521 [Sentencing decision]. The Judge also backdated the commencement of the alcohol interlock sentence by 28 days, allowing the appellant to drive immediately.
2 Police v Singh [2024] NZDC 6413 [Discharge decision].
3 Mr Singh did not plead guilty immediately, though much of the delay was also attributable to adjournments necessitated by the pandemic.
[5] Two months later, Police observed Mr Singh driving at 95 kph through a 50 kph zone in Thames. He was breath tested and produced a result of 1080 mcg of alcohol per litre of breath, once again more than four times the legal limit.
[6] Mr Singh was not a first offender. In 2019 he admitted driving with a breath-alcohol level of 1055 mcg of alcohol per litre of breath. He unsuccessfully sought a s 106 discharge on that occasion, relying on similar grounds to those he seeks to advance in the present case.
[7] As matters transpired, while Mr Singh’s 2019 disqualification cost him his job, his visa was not cancelled. His 2019 offending prompted Immigration New Zealand (INZ) to examine whether he continued to meet the character requirements for a work visa, and required Mr Singh to seek a character waiver. While INZ initially determined his offending was too serious to permit a character waiver, Mr Singh successfully sought reconsideration of that decision and obtained a new visa in 2020.
The appellant
[8] Mr Singh moved to New Zealand on a student visa and studied business management for two years. After a period on an open job search visa, he found employment at an Auckland car dealership, which sponsored his application for a work visa. As noted above, he lost his job in 2019 as a result of the disqualification which followed his conviction that year.
[9] After just over a year of looking for work Mr Singh found a new position at a car dealership in Thames. He left that position in mid-2021, and since January 2022 has been working at a dealership in Glen Eden. His employer has agreed to sponsor his application for a new work visa, and describes Mr Singh as hardworking, trustworthy and loyal.
[10] Mr Singh’s change of employer meant he had to seek a modification to his work visa before he could start his new job. He told the Judge Mathers that he fell into a state of extreme stress while waiting for his visa to be re-issued, and it was that stress which led him to drive while heavily intoxicated in November 2020. While he was working in Thames at the time of his January 2021 offending, Mr Singh said he
was “very lonely, depressed and anxious” at the time. He has expressed considerable remorse, acknowledging that his decision to drive was selfish, and apologised for the danger his decision to drive caused to other members of the public. Mr Singh described his final episode of offending as a “huge wake-up call”. He has diligently attended programmes to address his drinking and has completed a defensive driving course.
[11] Mr Singh describes himself as committed to a future in New Zealand. He says this country is now his home and he cannot imagine living anywhere else. In 2022 he returned to India and married; he and his wife have a 9-month-old son. He says his goal is to obtain New Zealand residency, and for his wife and son to move to New Zealand to be with him.
District Court decision
[12] Judge Mathers noted that the courts ordinarily regard driving with excess blood or breath alcohol as offending of moderate seriousness, but that in the present case she was faced with two excess blood or breath alcohol charges, each of which involved a “very high” reading, as well as a charge of driving at a dangerous speed.4 After taking account of his personal mitigating factors, the Judge indicated she regarded the overall gravity of Mr Singh’s offending as moderate to serious.5 She observed that his driving posed a grave danger to the public, and that it was very fortunate there had not been a fatal accident.6
[13] The Judge noted the offending had occurred after Mr Singh had succeeded in having the revocation of his visa reconsidered after his 2019 conviction.7 She accepted that the consequences of a conviction for the appellant will be serious, both with respect to his employment and “as to what INZ may or may not do as to his immigration status”.8 But she noted the courts’ traditional reluctance to intervene in
4 Discharge decision, above n 2, at [14].
5 At [15].
6 At [18].
7 At [19].
8 At [19].
the decision making of a specialist body such as INZ, particularly where they are already involved, as they were in Mr Singh’s case.9
[14] The Judge took careful steps to protect Mr Singh’s employment. Notably, she backdated both his disqualification (to the point where it had already been completed), and the commencement of his alcohol interlock sentence to minimise the risk he would lose his job.10
[15]The Judge concluded:
[22] I have given anxious and careful consideration to this application, but in the end for all the reasons I have given and despite the consequences to Mr Singh, I am not satisfied in this case the consequences of these convictions outweigh the gravity of the offending. It is a bridge too far.
The appeal
[16] An appeal against a refusal to grant a discharge without conviction is a composite appeal against conviction and sentence. The decision to enter a conviction is the principal focus.11 Section 107 of the Sentencing Act provides the statutory gateway. It reads:
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.
[17]In R v Taulapapa,12 the Court of Appeal observed:
[22] It is settled law that a court considering a discharge should: examine the gravity of the particular offence, taking into account all aggravating and mitigating factors of the offending and the offender; identify the direct and indirect consequences of conviction; and consider whether those consequences are “out of all proportion” to the gravity of the offence. Only then does it move to considering the residual discretion under s 106. There must be a “real and appreciable” risk that any given consequence will happen: this standard recognises that the court is assessing the likelihood of something that may happen in the future.
9 At [21].
10 Sentencing decision, above n 1, at [18] and [20]. It appears the steps the Judge took have been effective. It is no longer part of Mr Singh’s case that he risks losing his job if he is convicted.
11 Jackson v R [2016] NZCA 627 at [15]–[16].
12 R v Taulapapa [2018] NZCA 414, citing Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR
142 at [27].
[18] The appeal is a rehearing,13 meaning it is open to me consider afresh the gravity of the offending and the likely consequences of conviction. The ultimate question is whether a miscarriage of justice has occurred, arising either from a material error by the Judge in entering a conviction, or in her application of s 107.14
Submissions
[19] On behalf of Mr Singh, Mr Rhodes submitted that while the sentencing Judge referred to Mr Singh’s personal mitigating factors, she gave them insufficient weight when balancing gravity against consequences. He acknowledged that the offending, considered in isolation, was undoubtedly moderate to serious, but he argued the Judge’s overall assessment neglected to take those mitigating factors into account. Indeed, Mr Rhodes went as far as to submit that the Judge’s remarks read as though Mr Singh’s personal mitigating had not affected her analysis of the gravity of the offending at all. He argued that Mr Singh’s extensive rehabilitative work and guilty pleas substantially reduce the overall gravity of his offending.
[20] More importantly, Mr Rhodes argued the Judge gave insufficient weight to likelihood Mr Singh will be deported if convictions were entered. The parties had the advantage, in this Court, of the Supreme Court’s recent decision in Bolea v R, which was decided after sentencing.15 Bolea concerned an Australian citizen who pleaded guilty to a charge of participation in an organised criminal group.
[21] In Bolea the Supreme Court provided fresh guidance to sentencing courts about how the possibility of deportation should be treated when considering a discharge without conviction. Mr Rhodes emphasised the Supreme Court’s observation that it is necessary for sentencing judges to consider a discharge without conviction, whether or not the defendant may face a later process which will consider similar factors (such as immigration proceedings or a decision about ongoing employment).16 The Court stressed that in applicable cases both liability to deportation and the risk of actual deportation must be regarded as consequences of a conviction. The task of a
13 See Sena v Police [2019] NZSC 55, [2019] 1 NZLR 57, at [26]–[32].
14 Jackson v R, above n 11, at [12].
15 Bolea v R [2024] NZSC 46.
16 At [43].
sentencing court is to consider whether those outcomes are out of all proportion to the gravity of the offending.
[22] Mr Rhodes tendered updated independent evidence from Ms Aurora Christensen, a lawyer and licensed immigration adviser, who helpfully explained Mr Singh’s visa status and the likely consequences if his convictions remain undisturbed. Ms Christensen’s report emphasised that while INZ will consider Mr Singh’s offending as part of its character assessment regardless of whether a conviction is entered, a s 106 discharge would improve his chances of receiving a second character waiver.
[23] Mr Singh’s own immigration adviser, Mr Manpreet Singh, was blunter. He gave evidence that he has not heard of anyone with multiple driving-related convictions obtaining a character waiver. He said it is difficult, but possible, to obtain a character waiver after one or two driving convictions, especially if the applicant has taken effective steps towards rehabilitation, and can persuade INZ the offending was a one-off mistake. On the other hand, Mr Manpreet Singh suggested a character waiver “would likely be impossible” after three convictions, as INZ would likely regard the offending as a harmful pattern which shows the applicant poses too great a risk.
[24] Mr Rhodes submitted that while a discharge without conviction would not guarantee a character waiver, it will materially improve Mr Singh’s chances. He argued that the consequences of deportation for Mr Singh will be profound. It will destroy his long-held dream of living permanently in New Zealand and carry significant financial consequences for him and his family. He submitted that those consequences would be out of all proportion to the seriousness of the offending, and that the Judge made an error when she declined his s 106 application.
[25] On behalf of the Police, Ms Seybold supported the Judge’s approach, arguing, especially in light of the number of charges and the very high alcohol readings, that the Judge had assessed the seriousness of the appellant’s offending appropriately. Ms Seybold submitted the Judge approached the possibility of deportation in a manner
consistent with the Supreme Court’s analysis in Bolea, and noted, in any event, that the immigration issue in that case was very different to the one confronting Mr Singh.
[26] Ms Seybold acknowledged the profound consequences deportation would have for Mr Singh. Nonetheless, she submitted the Judge was right not to discharge him without conviction. INZ will assess Mr Singh’s character in light of his offending whether he is convicted or not. Section 106 discharges are rare in cases of driving with excess blood and breath alcohol, and the Judge made no error when she described the prospect of a s 106 discharge as a bridge too far.
Discussion
[27] Driving with excess blood or breath alcohol is an inherently serious offence. It is dangerous and socially unacceptable. Discharges without conviction are rare.17 At the same time, the courts have stressed that s 106 applications in excess blood or breath alcohol cases must be measured against the same standard they would in any other case.18 If the direct and indirect consequences of a conviction for driving with excess blood or breath alcohol really are out of all proportion to the gravity of the offending, it is open to the Court to consider a discharge under s 106.
How does Bolea affect the s 107 analysis?
[28] Mr Rhodes relied heavily on the Supreme Court’s decision in Bolea. Ms Bolea was in a relationship with a New Zealander who was deported from Australia under s 501 of the Migration Act 1958 (Cth). They have a daughter together. At her then-partner’s direction, she drove a rental car to Christchurch with a commercial quantity of methamphetamine in the boot. She pleaded guilty to a charge of being a member of an organised criminal group. Her involvement in the enterprise was brief and there was no suggestion she received any direct personal benefit.19
[29] Ms Bolea sought a discharge without conviction on the basis that entry of a conviction was highly likely to result in her deportation, which would force the family
17 See R v Singh [2020] NZCA 411 at [15]; New Zealand Law Society v Stanley [2020] NZSC 83 at
[72] and [102]; and Alywin v Police [2008] NZSC 113, [2009] 2 NZLR 1 at [17].
18 See Basnyat v Police [2018] NZCA 486, [2019] 2 NZLR 344 at [19].
19 Bolea v R, above n 15, at [11].
to separate.20 She was in New Zealand on a residence class visa, which is the default visa status for Australian citizens who come to New Zealand. Under s 161(1)(b) of the Immigration Act 2009, a person who has held a residence class for less than five years becomes liable for deportation if convicted of an offence punishable by imprisonment for two years or more.
[30] Actual deportation was not inevitable, given Ms Bolea’s right of appeal to the Immigration and Protection Tribunal and her right to seek recourse from the Minister.21 That said, her liability for deportation was triggered automatically upon entry of a conviction, and the Court was prepared to conclude that deportation was a likely outcome, notwithstanding her rights of review and appeal.22
[31] The Court drew a distinction between cases like Ms Bolea’s, where liability for deportation arose from the entry of a conviction, and a second class of case where liability for deportation arises from the defendant’s offending, and where INZ scrutiny is inevitable whether or not a conviction is entered. The Court explained the distinction with reference to the Court of Appeal’s decision in Sok v R:23
[48] Sok v R, which involved the requirement for good character, is an example of a case where the evidence made it clear the conviction was not the actual barrier to the outcome of concern to the person liable to deportation. Mr Sok’s visa application had been declined on the basis he failed the good character requirements that were applicable to him. In determining the good character requirements were not met, the decision maker had relied on the conduct which formed the basis of the charge against Mr Sok. The position was further complicated by the fact that, the visa application having been declined, Mr Sok was then unlawfully in New Zealand and it was too late for him to seek a character waiver. In that situation the Court, with the benefit of evidence as to the immigration pathways available to Mr Sok to try to regularise his position, said that there was “no reason to think a discharge would materially alter Mr Sok’s prospects of obtaining a visa”.
[49] On the other side of the coin, there will also be some cases where it is obvious that immigration authorities will not look beyond the conviction. The cases envisage situations where it will be apparent that the immigration authorities will not consider all of the circumstances of the offending. In those situations it will be clear that the risk of deportation will be a consequence of conviction as that will be the determining factor.
20 Her then-partner, having been deported, would have been unable to accompany her to Australia: Migration Act 1958 (Cth), s 503.
21 Immigration Act 2009, ss 161(2)(a), 172 and 207(1).
22 Bolea v R, above n 15, at [46].
23 Citing Sok v R [2021] NZCA 252, (2021) 29 CRNZ 962.
[32] As an example of the latter type of case, the Supreme Court referred to the Court of Appeal’s decision in Anufe v Police.24 Mr Anufe, like Ms Bolea, was in New Zealand on a residence class visa and pleaded guilty to a charge of making an intimate visual recording. As in Bolea, it was the conviction which triggered the appellant’s liability for deportation. The corollary was that if a s 106 discharge were entered, he would not be liable. The Court of Appeal distinguished Mr Anufe’s position from that of other offenders where immigration consequences arise with or without a conviction.25
[33] In Bolea, the Supreme Court held that in cases where liability for deportation is triggered by entry of a conviction, both the defendant’s liability to deportation and risk of actual deportation should be weighed, as consequences of the conviction, under s 107. The same approach is appropriate where it is plain INZ will not look beyond the fact of the conviction.26 The Court noted, however, that “[t]he position may be different if it is clear a conviction does not add anything (as was the case in Sok).”27
[34] Sok was an unusual case, in that the appellant was both liable for deportation and ineligible for a character waiver. It contrasted starkly Bolea, as Mr Sok’s deportation was inevitable regardless of his conviction. Mr Singh’s case does not fall at either extreme. A s 106 discharge will be neither decisive (as in Bolea and Anufe) nor irrelevant (as in Sok).
[35] The Supreme Court made clear that s 107 requires an assessment of the particular circumstances of the defendant, including an examination of the applicable immigration process and its relationship to the discharge decision.28
[36] Mr Singh is presently in New Zealand on an interim visa, and his liability for deportation arises under s 157 of the Immigration Act. The relevant parts of that section provide:
24 Anufe v New Zealand Police [2021] NZCA 253.
25 At [15].
26 Bolea v R, above n 15, at [56(b)].
27 At [56(c)].
28 At [56(a)].
157 Deportation liability of temporary entry class visa holder for cause
(1)A temporary entry class visa holder is liable for deportation if the Minister determines that there is sufficient reason to deport the temporary entry class visa holder.
(2)The person has 14 days from the date of service of the deportation liability notice to give good reason why deportation should not proceed.
…
(4)A temporary visa holder or interim visa holder who is liable for deportation under this section may, not later than 28 days after the date of service of a deportation liability notice, appeal to the Tribunal on humanitarian grounds against his or her liability for deportation.
(5)For the purposes of subsection (1), sufficient reason includes, but is not limited to,—
(a)breach of conditions of the person’s visa:
(b)criminal offending:
(c)other matters relating to character:
…
[37] It will be open to Mr Singh to seek a character waiver, as he ultimately succeeded in doing after his 2019 conviction, but the critical feature of s 157 is that its application is triggered, among other things, by criminal offending and matters relating to character. It does not depend on entry of a conviction.
[38] In assessing whether he is eligible for a character waiver, INZ will consider all relevant circumstances, including his 2019 conviction, the nature of his 2020 and 2021 offending (including the very high alcohol readings he returned on each occasion) and the dangerous speed at which he was driving on the latter occasion.
[39] At the same time, INZ will take account of those factors which weigh in Mr Singh’s favour, including his extensive efforts at rehabilitation since his offending in January 2021, the high regard in which he has been held by his employers, and his longstanding commitment to make a home for himself and his family in New Zealand. INZ followed the same process when it granted a character waiver after Mr Singh’s 2019 conviction.
[40] In argument, Mr Rhodes accepted that INZ will make an independent assessment of Mr Singh’s character whether or not his convictions stand. He may be deported even if discharged; he may be allowed to stay even if convicted. Mr Rhodes’
central submission was that a discharge without conviction will improve Mr Singh’s chances. He relied on Ms Christensen’s observation that a s 106 discharge would indicate that the presiding Judge, who had all the information, “did not consider the offending as serious enough to impose a conviction when balanced against the possible repercussions, i.e. deportation and/or the decline of future visa applications”.
[41] I do not know how heavily the entry of a conviction—as distinct from the fact of Mr Singh’s offending—would influence consideration of his application for another character waiver, but it should not be decisive. The central question for INZ will remain the same whether Mr Singh is convicted or not. INZ’s task is to assess Mr Singh’s character in light of his offending. Its role is not to punish him, but to make a broad assessment of his character with an eye to the future. As part of that, INZ will consider the nature and seriousness of Mr Singh’s offending, his history, and all the changes he has made in the four years since he last offended.
[42] Put another way, the outcome of this appeal says nothing about whether, in 2024, Mr Singh is of sufficiently good character to stay in New Zealand. That is an independent decision for INZ, and I have no doubt it will take Mr Singh’s many positive attributes into account alongside his offending.
[43] Ms Christensen gave evidence she does not believe INZ will look much beyond Mr Singh’s convictions when deciding whether to issue another character waiver. If she is right, that would be an improperly narrow approach. It will, of course, be open to INZ to decline a waiver, but in coming to its decision it must consider Mr Singh’s character in the round, as it did after his 2019 offending.
[44] The theoretical but unquantifiable benefit Mr Singh might obtain from a s 106 discharge is not sufficient to alter the s 107 analysis, at least on the facts of this case. While I accept there is a real risk that Mr Singh will, in fact, be deported, INZ will take account of the same factors in its character assessment even if he is discharged.
Was there an error in declining to discharge without conviction?
[45] In any event, I am satisfied the Judge made no error in declining to discharge Mr Singh under s 106. I reject Mr Rhodes’ submission that the Judge’s assessment of the gravity of the offending took no account of Mr Singh’s personal mitigating factors. The Judge went out of her way to acknowledge them in both of her decisions, and she took the extraordinary step of backdating Mr Singh’s disqualification, to the point where it had already been served, to help him keep his job.
[46] Despite Mr Singh’s personal mitigating factors, there is no escaping the seriousness of his offending. On both occasions, Mr Singh’s intoxication levels were extreme. The second episode was further aggravated by the fact he was driving at a dangerous speed. The Judge was right to note the serious danger he caused, and that it was very fortunate nobody was injured or killed. Both episodes were aggravated by his 2019 conviction. Even taking account of the admirable efforts Mr Singh has made to address his difficulties with alcohol, and to improve his driving, the Judge was right to regard the gravity of the offending as moderate to serious. Other judges may have assessed it even more harshly.
[47] Against that, Mr Singh risks deportation, with all the consequences that would entail both for himself and his family. But, as already noted, the entry of a conviction will be—or at least should be—of limited relevance to INZ’s assessment. In Bolea the appellant’s discharge removed her liability for deportation; a discharge would not have the same effect here.
[48] Even if this were a case where liability for deportation turned on the entry of a conviction, I would have considered Mr Singh’s offending too serious for a s 106 discharge. In light of his previous conviction and the serious nature of the two episodes before the Court, I agree with Judge Mathers that it would be wrong for the court to attempt to influence the immigration process. Mr Singh’s ongoing eligibility to live in New Zealand should be determined by INZ in the usual way.
Result
[49] Mr Singh has not demonstrated that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of his offending. The appeal is dismissed.
Boldt J
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