Singh v The King
[2023] NZCA 665
•20 December 2023 at 3.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA601/2022 [2023] NZCA 665 |
| BETWEEN | GURPRITH SINGH |
| AND | THE KING |
| Hearing: | 26 September 2023 |
Court: | Gilbert, Peters and Hinton JJ |
Counsel: | N P Chisnall KC and L A Elborough for Appellant |
Judgment: | 20 December 2023 at 3.30 pm |
JUDGMENT OF THE COURT
A The application to adduce further evidence is declined.
BThe convictions are set aside. The sentence of 200 hours’ community work is set aside.
DWe make an order under s 106(1) of the Sentencing Act 2002 discharging the appellant without conviction on two charges of assault on a person in a family relationship.
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REASONS OF THE COURT
(Given by Peters J)
The appellant, Mr Singh, appeals against a decision of Judge K Lummis, declining to discharge him without conviction on two charges of assault on a person in a family relationship.[1] A jury found Mr Singh guilty of the offending following a trial before the Judge in May 2022.
[1]R v Singh [2022] NZDC 21824 [District Court judgment]; Sentencing Act 2002, s 106.
The Judge declined Mr Singh’s application as she was not satisfied the direct and indirect consequences of conviction would be out of all proportion to the gravity of his offending.[2] The Judge convicted Mr Singh and sentenced him to 200 hours’ community work.[3] The Judge also declined an application by the prosecution to make a protection order in respect of the victim of the offending, Mr Singh’s former wife.[4] The Judge was satisfied that Mr Singh’s offending was a “one off” incident and unlikely to be repeated.[5]
[2]District Court judgment, above n 1, at [41]–[42].
[3]Mr Singh completed that sentence in May 2023.
[4]District Court judgment, above n 1, at [49].
[5]At [46]–[47].
Mr Chisnall KC, counsel for Mr Singh on appeal, contends the Judge erred in determining the consequences of conviction were not out of all proportion to the gravity of the offending. Mr Chisnall made several specific submissions in support of this contention. These included that the Judge treated Mr Singh’s attempt to defend the charges as an aggravating, and almost determinative, factor; that the Judge erred in the manner in which she addressed the consequences of conviction on Mr Singh’s employment prospects;[6] and that she also erred in failing to give reasons as to why she did not consider the consequences of conviction were out of all proportion to the gravity of the offending.
[6]In support of this submission, Mr Chisnall sought leave to adduce what is essentially an updating affirmation from Mr Singh as to employment matters. For the reason given in [4] above, it is unnecessary for us to receive this evidence.
As it turns out, we are persuaded to allow this appeal on the basis of the consequences of conviction as regards Mr Singh’s immigration status and, in turn, the implications of those consequences for his relationship with his child. It follows that we need not address the other submissions made or the application to adduce further evidence which, neither individually nor collectively, would have persuaded us to allow the appeal.
Background
The offending occurred in October 2019. Mr Singh and his (then) wife had been married for a little more than a year and were expecting their first child. In the course of an argument, Mr Singh slapped his wife on the face, punched her in the stomach and pushed her backwards onto the bed. In her decision, the Judge described the offending as a “single incident involving a heated domestic situation”.[7]
District Court decision
Gravity of the offending
[7]District Court judgment, above n 1, at [26].
The Judge held the gravity of the offending was:[8]
... moderately serious but the mitigating factors that are considered relevant to discharge do reduce the gravity slightly, taking it somewhere to moderate or just above moderate but not much.
[8]At [20].
There is no challenge to the Judge’s assessment of the gravity of the offending. We do note, however, that the Judge expressly acknowledged that this assessment reflected her inability to give Mr Singh credit for a guilty plea or remorse. But for that, the Judge would have assessed the gravity of the offending itself at a lower level.[9]
Consequences of conviction
[9]At [20]. The Judge made the same point again at the end of her decision, referring to the “very limited credit” available to Mr Singh, given that he had sought to defend the charges: see District Court judgment, above n 1, at [50].
The adverse consequences of conviction on which Mr Singh relied concerned his employment prospects, and the risk posed to his immigration status.
As to the former, the Judge was not persuaded the consequences of conviction would be as adverse as Mr Singh predicted.[10] As we have said, it is unnecessary for us to address Mr Chisnall’s submission on this aspect of the appeal.
[10]At [34].
As the Judge said, the real force in Mr Singh’s application was, and is on appeal, the potential consequences of conviction on his immigration status.
Mr Singh is an Indian citizen and holds a residence class visa. He is aged 35, has been living in New Zealand since 2015, has no prior convictions and, at least up until his trial, was gainfully employed. Mr Singh and his wife have separated. Their child, a daughter who is a New Zealand citizen, is now three years old.[11]
[11]Mr Singh’s updating affirmation is to the effect that he has access to the child, albeit at present that access is modest.
In support of his application, Mr Singh filed affidavits from Mr Alastair McClymont and Mr Peter Moses, both lawyers specialising in immigration law.
Mr Moses’s evidence was particularly comprehensive. He referred to the fact that convictions would render Mr Singh liable for deportation under s 161 of the Immigration Act 2009. On being advised of the convictions, Immigration New Zealand (INZ) would investigate and brief the Minister of Immigration or the Minister’s delegate on whether to cancel or suspend the liability to deportation, or to serve a deportation liability notice. In the course of the investigation, Mr Singh would be given an opportunity to make submissions as to why deportation should not proceed.
Mr Moses then went on to review the matters he thought likely to be considered relevant in the decision-making process. These were that the offending was in the nature of domestic violence which Mr Moses thought would be of greater concern than, for instance, an assault after an argument in a bar; that, despite the two “Living without Violence” courses Mr Singh had completed, the police had seen fit to seek a protection order (that the Judge declined this would presumably count in Mr Singh’s favour); and that Mr Singh was unemployed and had no special expertise or skill that would make it desirable to retain him. Mr Moses said that, although the decision-maker would be conscious of the effect of deportation on Mr Singh’s relationship with his daughter, the decision-maker was unlikely to give that matter much weight, given her relatively young age and Mr Singh’s limited role in her upbringing.
Mr Moses also considered that, if a deportation liability notice were served, Mr Singh’s prospects on appeal to the Immigration and Protection Tribunal would be poor.
Having considered all of these matters, Mr Moses concluded there was “very clearly a real and appreciable risk of Mr Singh being deported”.
The Judge accepted this evidence. She also accepted that, if Mr Singh were deported, it was likely he would lose contact with his daughter and that this would be significant. Given that Mr Singh’s former wife did not intend to return to India, “regular and meaningful contact with [the child] would simply not be possible”.[12]
Proportionality assessment
[12]District Court judgment, above n 1, at [39].
Although acknowledging that the proportionality assessment was finely balanced, the Judge concluded the direct and indirect consequences of conviction were not out of all proportion to the gravity of the offending.
Submissions on appeal
Mr Chisnall submits that the Judge erred in concluding that these two real and appreciable risks of conviction — deportation and, as a result, the severing of the relationship between Mr Singh and his daughter — were not out of all proportion to the gravity of the offending.
Mr Chisnall submits the fact of a real and appreciable risk of deportation makes the case different to those in which, although conviction exposes the offender to the risk of deportation, the actual risk of deportation following the INZ process referred to above cannot be predicted.
As to the severing of the relationship, Mr Chisnall referred us to several authorities in which this Court and the High Court has taken into account the desirability of preserving family relationships in the proportionality assessment.[13] Mr Chisnall also referred us to the Supreme Court’s recent decision in Philip v R.[14] In that case, the Court confirmed that the family situation of an offender, including the interests of any child or children, is a relevant factor in sentencing, although the weight able to be accorded to it will depend on the circumstances of the particular case. It is fair to note that Philip was delivered after the Judge’s decision.
[13]Rahim v R [2018] NZCA 182; Bong v R [2020] NZCA 94; R v Tang [2019] NZHC 2056; and McAlister v Police [2022] NZHC 1247.
[14]Philip v R [2022] NZSC 149, [2022] 1 NZLR 571.
In response to these submissions, Crown counsel, Ms Culliney, acknowledged that the proportionality assessment was finely balanced, particularly given the consequences of deportation for the relationship between Mr Singh and his daughter. However, she submits that there is no error in the Judge’s conclusion and that the appeal should be dismissed.
Discussion
Mr Chisnall is correct in submitting that the real and appreciable risk of deportation distinguishes this case from others. As a general rule, if the evidence before the court does not go beyond establishing that a conviction will expose the offender to the risk of deportation, the court will usually consider it best to let the INZ process take its course. This is on the basis that, if deportation results, it is likely to reflect the substantive offending or associated matters, rather than the entry of a conviction.[15]
[15]Anufe v Police [2021] NZCA 253; Zhu v R [2021] NZCA 254; and Bolea v R [2023] NZCA 39 (now the subject of appeal to the Supreme Court, see Bolea v R [2023] NZSC 72).
We also accept Mr Chisnall’s submission that the inevitable severing of the relationship between Mr Singh and his daughter, if he is deported, is an important consideration. The Judge herself acknowledged the significance of this. Mr Singh’s former wife is entitled to remain in New Zealand permanently and she does not intend to return to India. Thus there is no prospect of maintaining the parent/child relationship if Mr Singh is deported. This would be a heavy price for both Mr Singh and the child to pay for what the Judge considered an isolated incident of “relatively limited” violence.[16]
[16]District Court judgment, above n 1, at [12].
As Ms Culliney acknowledged, the matter is finely balanced. Ultimately, however, we have concluded that these two consequences of conviction are out of all proportion to the gravity of the offending.
Result
The application to adduce further evidence is declined.
The convictions are set aside. The sentence of 200 hours’ community work is set aside.
We make an order under s 106(1) of the Sentencing Act 2002 discharging the appellant without conviction on two charges of assault on a person in a family relationship.
Solicitors:
Crown Solicitor, Auckland for Respondent
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