Skakun v Police
[2024] NZHC 3914
•18 December 2024
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2024-425-20
[2024] NZHC 3914
BETWEEN CHRISTOPHER CHARLES SKAKUN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 16 December 2024 Appearances:
T J Surrey for Appellant
M B Brownlie for Respondent
Judgment:
18 December 2024
JUDGMENT OF EATON J
(appeal against conviction and sentence)
This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
SKAKUN v POLICE [2024] NZHC 3914 [18 December 2024]
Introduction
[1] Christopher Skakun pleaded guilty to a charge of driving with excess breath alcohol.1 On 13 February 2024, Judge C M Doyle declined his application to be discharged without conviction.2 Mr Skakun appeals against that decision.
The offending
[2] The facts are uncomplicated. At about 11.15 pm on 16 June 2023, Mr Skakun was stopped at an alcohol check point. He failed a breath screening test. An evidential breath test confirmed a breath alcohol level of 687 micrograms of alcohol per litre of breath. In explanation, Mr Skakun said he had four beers and a large meal and thought he was okay to drive.
The Judge’s decision
[3] Judge Doyle observed that on 19 June 2020, Mr Skakun had been convicted for driving with excess breath alcohol. On that occasion he was fined $500, ordered to pay court costs and disqualified from driving for a period of six months. The Judge observed that as a second qualifying offence within a five-year period, the offending triggered the alcohol interlock sentencing regime. Consequently, Mr Skakun must, upon disqualification, have a stand down period before he is then required to obtain an alcohol interlock licence, have a device fitted to his car and only drive in accordance with the rules pertaining to the alcohol interlock licence.
[4] The Judge undertook an orthodox s 106 assessment. The overall gravity of the offending was assessed as moderate, having regard to the prior conviction, the early guilty plea, a charitable donation demonstrating remorse and attendance at the Right Track Programme.
[5] The Judge identified the direct and indirect consequences of conviction as primarily turning on Mr Skakun’s immigration status. The Judge referred to evidence from a specialist immigration lawyer confirming that a conviction would potentially
1 Land Transport Act 1998, s 56(1)—maximum penalty of three months’ imprisonment or fine not exceeding $4,500 and mandatory disqualification for a period of six months or more.
2 Police v Skakun [2024] NZDC 2995.
raise difficulties for Mr Skakun in achieving permanent residency, he currently holding a resident’s visa.
[6] Employment consequences were also identified and in particular for Mr Skakun’s manager’s certificate held under the Sale and Supply of Alcohol Act 2012 (SSA).
[7] In reliance of observations made by Mander J in Yuan v Police3 to the effect that it is more appropriate for the relevant authorities to assess and determine immigration issues arising as a consequence of conviction, the Judge concluded that both immigration and employment consequences are more properly dealt with by the appropriate authorities.
[8] The application for discharge without conviction was declined. Taking into account the $500 donation, Mr Skakun was fined $500, ordered to pay court costs of
$130 and disqualified from holding or obtaining a driver’s licence for 28 days before the alcohol interlock provisions take effect. The disqualification was backdated to 12 July 2023 in light of Mr Skakun having completed the Right Track Programme.
Principles on appeal and law
Section 107 of the Sentencing Act 2002 provides:
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.
[10] The relevant test is well established.4 First, the Court must assess the gravity of the offence, by reference to the aggravating and mitigating factors both in relation to the offence and to the offender. Then the Court must assess the direct and indirect consequences of a conviction. In determining whether something is a ‘consequence’, it is not necessary for the Court to be satisfied that the outcome is inevitable. All that
3 Yuan v Police [2020] NZHC 933.
4 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142.
is required is a ‘real and appreciable risk’ of it occurring.5 The third step requires the Court to consider whether the consequences would be out of all proportion to the gravity of the offence. If they are, the Court may discharge the offender without entering a conviction.
[11] Discharge without conviction appeals have been characterised as “composite appeal[s] against conviction and sentence”.6 The appeal is by way of rehearing, meaning this Court must make its own assessment of whether the criteria for discharge without conviction is met.7 The appellant bears the onus of satisfying this Court that its interference in the District Court’s decision is justified.8
Supporting evidence
[12] In his affidavit filed in the District Court, Mr Skakun confirmed he is 33 years old, was born in California and came to New Zealand on holiday in 2017 and later returned to live here. Ms Surrey tells me that was in 2018. He has been working in the wine industry and in 2023 completed a graduate diploma in viticultural science at Te Pūkenga. He is currently employed by a vineyard in the Gibbston Valley. He holds a manager’s certificate issued by the Queenstown Lakes District Council.
[13] Mr Skakun deposes that he is a New Zealand resident intending to apply for permanent residency. He is in a relationship with a New Zealand citizen.
[14] Mr Skakun expresses his regret for his offending and his concern as to the potential impacts of his offending on his future in New Zealand. He expresses a concern that he will “struggle to obtain permanent residency in New Zealand” if convicted. Further, he says he “may be unable to renew my manager’s certificate” if convicted and deposes to what he considers to be a risk that a licencing inspector or licencing sergeant could apply to have his certificate suspended. Without a certificate he says he could not fulfil his current employment role as he conducts wine tastings for corporate groups.
5 DC (CA47/2013) v R [2013] NZCA 255 at [43]; R v Taulapapa [2018] NZCA 414 at [46].
6 Jackson v R [2016] NZCA 627, (2016) 28 FRNZ 144 at [16].
7 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8].
8 Austin Nichols & Co Inc v Stitching Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [4].
[15] Mr Skakun refers to the general stigma of a conviction as having a negative impact, especially in terms of immigration and employment prospects.
[16] As observed by the Judge, Mr Skakun also relied on affidavit evidence from Adam Moore, a Queenstown-based licenced immigration advisor. Mr Moore had been asked to provide an opinion as to the implications of a potential conviction from an immigration point of view, particularly on Mr Skakun’s current status as a New Zealand resident and his ability to apply for a permanent resident visa in the future.
[17] Mr Moore confirmed that if convicted, Mr Skakun would be liable for deportation under s 161(1)(a)(iii) of the Immigration Act 2009 and that his conviction would come to the attention of Immigration New Zealand most likely when Mr Skakun applied for permanent residence. Mr Moore further deposed that once aware of the conviction, a resolutions team within Immigration New Zealand would initiate a process to confirm whether he is liable for deportation following which a decision would be made to the Minister of Immigration as to whether liability should be upheld, in which case a deportation liability notice would be issued.
[18] Mr Moore outlined the various factors that would be considered by the resolutions team in making their assessment including whether the offence was isolated, the length of time since the offence, any evidence of rehabilitation, a person’s social, familial and economic ties to New Zealand, and any other special or humanitarian factors. Mr Moore said that a person liable for deportation may not apply for a permanent resident visa and that a resident visa holder liable for deportation because of a conviction has a right of appeal against liability to the Immigration and Protection Tribunal on humanitarian grounds.
[19] Mr Moore deposes that a conviction for driving with excess breath alcohol would mean Mr Skakun would not meet the character requirements for any kind of residence class visa unless he was granted a “character waiver”. Mr Moore understands that if an offender has been through the resolutions process and their liability for deportation has been cancelled, that person will be granted permanent
residence without issue and the “character waiver” step is considered to be a technical formality.
Fresh evidence
[20] On appeal Mr Skakun seeks leave to offer as fresh evidence his second affidavit. The primary purpose of the second affidavit is to exhibit a letter dated 19 November 2024 from Immigration New Zealand advising Mr Skakun that he is now liable for deportation under s 161(1)(a)(iii). The covering email to the letter records that Mr Skakun is “automatically being liable for deportation from New Zealand as a result of [his] conviction in 2024”. The notice invites Mr Skakun to complete a deportation questionnaire and to provide any supporting submissions, following which a delegated decision maker will decide whether deportation should proceed. Mr Skakun has completed that questionnaire, has filed submissions and awaits a determination.
[21] In his second affidavit Mr Skakun deposes as to his fear of the risk of deportation, both in relation to his employment and the “major hurdles” it would cause in his relationship with his partner. His affidavit records that he is working with a professional immigration consultant to respond to the Immigration New Zealand letter but that he did not anticipate receiving a decision from Immigration New Zealand prior to this appeal being heard.
Submissions
Appellant’s submissions
[22] Ms Surrey, on behalf of Mr Skakun, applies to admit Mr Skakun’s second affidavit as fresh evidence on appeal.
[23] She submits the Judge did not give sufficient weight to the appellant’s guilty plea, previous good character, remorse and rehabilitative measures, leading to an erroneous gravity assessment. Ms Surrey further submits the Judge failed to give appropriate weight to the consequences of a conviction and in particular the real risk the appellant may be declined a character waiver and will therefore be unable to
continue to live and work in New Zealand. Ms Surrey submits the conviction will likely derail Mr Skakun’s plans to obtain permanent residency and remain in New Zealand with his partner and additionally, may struggle to progress his career due to the stigma of a conviction. Counsel submits this outcome is disproportionate to the offending.
Respondent’s submissions
[24]Mr Brownlie for the Crown does not oppose the fresh evidence application.
[25] He submits the gravity of the offending was appropriately assessed to be moderate. Mr Brownlie submits the offending cannot be considered an isolated fall from grace and the Judge was correct to consider the previous conviction for driving with excess breath alcohol. Any suggested ‘good character’ must, in Mr Brownlie’s submission, account for the previous conviction. The guilty plea and attendance at Right Track should be recognised however are not submitted to shift the gravity of the offending into the ‘low’ category.
[26] Turning to the consequences of conviction, Mr Brownlie refers to the Court of Appeal’s decision in Ho v R9 where it was held that even if it was unlikely that the appellant will be able to stay in New Zealand, that did not amount to a disproportionate consequence for convictions of common assault and male assaults female. The Court was of the view that deportation is a matter for immigration services to decide, having regard to factors including the Court’s assessment as to the gravity of the offending. Mr Brownlie submits that to discharge Mr Skakun without conviction would be to usurp the function of Immigration New Zealand.
[27] As regards Mr Skakun’s employment prospects and the risks to his manager’s certificate, Mr Brownlie submits that given the offending involves the misuse of alcohol, those potential consequences are very much matters for consideration by a specialist tribunal. He submits that any employment consequences for the appellant are a natural consequence of repeat offences of driving with excess breath alcohol.
9 Ho v R [2016] NZCA 229.
Analysis
Fresh evidence
[28] The offence date was 16 June 2023. Mr Skakun entered a guilty plea on 12 July 2023. On that day the charging document was noted that an application for discharge without conviction would be made. Sentencing was then repeatedly adjourned and was not ultimately determined until 13 February 2024. In the meantime, Mr Skakun completed the Right Track Programme and graduated in October 2023. An appeal against conviction and sentence was promptly filed.
[29] At the request of appellate counsel, the hearing of this appeal was then deferred pending confirmation that Immigration New Zealand would (or would not) issue a liability to deportation notice. That notice has now issued, and the appellant seeks to put that material before the court as fresh evidence.
[30] I have significant misgivings with the manner in which this appeal has been progressed. Having filed an appeal, an appellant should be in a position to advance the appeal in a timely fashion. It is not appropriate to file an appeal, as effectively a holding mechanism, in order to test the waters as to the consequences of a conviction, with a view to then either applying to advance fresh evidence on appeal or, to abandoning the appeal dependant on the response of a third party. That is the position Ms Surrey acknowledged had been adopted for the appellant. It is a practice to be discouraged.
[31] Against that background and acknowledging that the registry had not imposed an earlier hearing date on the appellant, I will, with some reluctance, admit the appellant’s second affidavit as fresh evidence.
[32] In my assessment that evidence does not take matters very far. It confirms the outcome predicted by Mr Moore, that a conviction would trigger a liability to deportation notice being issued to Mr Skakun. The position remains, as it was before the Judge, that a conviction gives rise to a real risk that Mr Skakun may not obtain permanent residency, that he may be deported.
Gravity of offence
[33] I am satisfied the Judge did not err in categorising the gravity of the offending as moderately serious. Ms Surrey submits the Judge failed to take give appropriate weight to personal factors such as the guilty plea, remorse and participation in the Right Track programme. I disagree. The strong personal mitigating factors were considered by the Judge but largely offset by the fact of very similar prior offending within a three-year period. A lower-level categorisation of this offence might have been appropriate if this was a first offence. It was not.
Consequences of conviction
Stigma
[34] On appeal Ms Surrey submits there is a very real stigma associated with a conviction for drink driving. She submits that such a conviction could “permanently blight an offender’s life”. I am not persuaded that is the case. Ms Surrey was unable to point to any cases where the stigma of a conviction for drink driving has of itself led the Court to conclude that the consequence of a conviction clearly outweighed the gravity of the offending.
[35] The real focus of this appeal is the consequences for Mr Skakun’s immigration status in New Zealand and the risk to his employment given he holds a manager’s certificate. Both of those consequences I accept, are real and serious, as was acknowledged by the Judge.
Employment
[36] Ms Surrey submits that as a consequence of conviction, Mr Skakun may struggle to progress his career. He has a graduate diploma in viticultural science and is currently employed by a local vineyard. He holds a manager’s certificate issued by the Queenstown District Lakes Licencing Committee that may be in jeopardy. Pursuant to s 285 of the SSA, a constable or inspector may apply for an order by the licencing authority to suspend or cancel a manager’s certificate. The grounds on which an order may be made include that the conduct of a manager is such as to show that
he or she is not a suitable person to hold the certificate.10 It follows that even if discharged without conviction, Mr Skakun’s manager’s certificate could be in jeopardy. The focus under the Act is on the conduct of a manager. A conviction is not a triggering provision.
[37] Further, there is no suggestion that Mr Skakun’s employment is at risk if he does not hold a manager’s certificate. There is no evidence to suggest that a second conviction of driving with excess breath alcohol is a barrier to his progression in the wine industry. With reliance on the observation of the Court of Appeal in R v Taulapapa,11 Ms Surrey submits the Court should take judicial notice of the likely negative attitude of prospective employers to a convicted applicant. I accept that a criminal conviction may well disadvantage a job applicant but observe that the Court of Appeal was discussing the consequences of a criminal conviction for a young person. Mr Skakun is not young, he is 33 years old. He has worked in the wine industry for six years now and has both relevant qualification and hands on experience. I am told he enjoys the support of his employer.
[38] I agree with the Judge that Mr Skakun’s suitability to hold a manager’s certificate is very much a matter for the Licensing Authority to consider. The consequences of a conviction for Mr Skakun’s employment are modest.
Immigration status
[39] The most significant consequence of a conviction for Mr Skakun turns on his immigration status. Mr Skakun holds a residence class visa. He is liable to deportation because he has committed a qualifying offence within two years of having held a residence class visa. That liability arises under s 161(1)(a)(iii) of the Immigration Act 2009. That provision provides:
161Deportation liability of residence class visa holder convicted of criminal offence
(1)A residence class visa holder is liable for deportation if he or she is convicted, in New Zealand or elsewhere,—
10 Sale and Supply of Alcohol Act 2012, s 285(3)(b).
11 R v Taulapapa [2018] NZCA 414, at [42].
(a)of an offence for which the court has the power to impose imprisonment for a term of 3 months or more if the offence was committed at any time—
…
(iii)not later than 2 years after the person first held a residence class visa;
…
[40] As anticipated in the evidence of Mr Moore, Mr Skakun has now been served with a notice of his liability to deportation. But deportation is not inevitable. Pursuant to s 172 of the Act, the Minister may at any time by written notice cancel a person’s liability for deportation and may by written notice suspend a residence class visa holder’s liability for deportation. Mr Skakun has completed the deportation questionnaire and taken advantage of the opportunity to make a submission in response to the notice. If, ultimately, a deportation notice is served, he has a right of appeal to the Immigration and Protection Tribunal on humanitarian grounds.12 I accept that the threshold for an appeal is high. He would need to demonstrate exceptional circumstances.
[41] There can be no doubt that Mr Skakun’s liability to deportation is a consequence of the conviction. Ms Surrey submits that the risk of deportation is a consequence of conviction that clearly outweighs the gravity of the offending. A discharge would avert that risk.
[42] In the District Court the Judge referred to the observations of Mander J in Yuan v Police and considered that the risk to Mr Skakun’s immigration status was appropriately left to the immigration authorities to determine. In Yuan Mander J said:13
While there is no general rule, the courts have been reluctant to pre-empt the decision-making processes of the various immigration bodies and tribunals, lest they usurp the role of those charged with resolving immigration questions arising from the consequences of offending. While each case must be assessed on its individual merits, it will be relatively rare for the risk of deportation by itself to be considered as a disproportionate consequence of being convicted for drink driving.
12 Immigration Act 2009, s 161(2).
13 Yuan v Police, above n 3, at [25].
(footnote omitted)
[43] As was observed by the Supreme Court in Sok v R it is usually the case that immigration processes must be commenced, and adverse decisions made by immigration authorities, before a person who has committed an offence is compelled to leave the country.14
A court may accept that during a given process the person will be heard on mitigating and personal circumstances and the outcome will be determined by those circumstances rather than the fact of conviction. The offending is a fact that has been admitted or proved and the court’s view of its gravity will be a matter of record. In such cases the courts usually find the outcome a consequence of the offending behaviour rather than the conviction.
(footnotes omitted).
[44]Further the Court said:15
Courts usually assume, in the absence of evidence to the contrary, that immigration authorities will take relevant considerations into account. But there are cases in which courts have accepted that authorities may decide the offender’s status on the conviction alone, ignoring the circumstances of an offence that is a minor example of its kind.
In such cases…courts may be willing to base the decision to convict or discharge on the probability that the offender will be deported.
(footnotes omitted)
[45]The cases the Supreme Court were referring to were summarised by Katz J in
Singh v Police16 and expanded upon by Lang J in Clarabal v Police.17
[46] In Singh Katz J had referred to the caution issued by Asher J in Zhang v Ministry of Economic Development against the courts usurping the role of immigration officials:18
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
14 Sok v R [2021] NZCA 252 at [47].
15 At [49].
16 Singh v Police [2020] NZHC 368.
17 Clarabal v Police [2020] NZHC 1518.
18 Zhang v Minister of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011 at [14].
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.
(footnotes omitted)
[47]Katz J then observed:19
[37] Zhang was subsequently confirmed by the Court of Appeal in Ho v R. The general approach advocated in Zhang and clarified in subsequent cases is justified on grounds of institutional competence and comity. The immigration authorities are those with the institutional background and competence required to deal with immigration questions and have been empowered by Parliament to make that assessment. If the immigration authorities assess that a defendant's offending is serious enough to warrant deportation, then that is generally their assessment to make, and there are appeal/review rights available.
[38] However, in 2018, the Court of Appeal moderated the position somewhat in Rahim and granted a discharge without conviction where deportation would break up a family unit. There have been a number of High Court decisions since then that have recognised that where deportation of an offender will cause serious harm to a defendant's family (usually in the form of a family unit being broken up) that may be sufficient to justify a discharge without conviction. For example, in R v Tang, deportation of the defendant would have resulted in her losing all contact with her four year old son.
[39] It is relatively rare, however, for deportation risk to be taken into account as a relevant consequence of offending in cases where deportation will not result in serious harm to the offender's family unit in New Zealand. Ultimately, however, each case must be assessed on its own merits.
[48] In Clarabal Lang J observed that it was clear from the comments of Katz J that the court’s willingness to intervene in this area had largely been restricted to cases where deportation would lead to the breakup of a family unit. The additional category of case that Lang J referred to is captured as follows:20
I would add another observation. I consider it significant that the appellants in Rahim, Bong and Vohra had all pleaded guilty to, or been found guilty of, charges where the seriousness of the offending could not be determined solely
19 Singh v Police, above n 16, at [37]—[39].
20 Clarabal v Police, above n 17, at [17].
by reference to the nature of the charge. The appellant in Rahim pleaded guilty to a charge of indecent assault, the appellant in Bong had been found guilty on a charge of assaulting a female but acquitted of much more serious charges and the appellant in Vohra had pleaded guilty to a charge of assaulting a female. Culpability for these types of offence can fall within a very wide spectrum, and can only be assessed properly through careful analysis of the facts of the case. In all three cases the analysis of the facts led the courts to conclude the overall culpability of the offending was either low or very low. In addition, the courts in each of those cases knew the existence of the conviction was highly likely to result in the appellant being deported. It is therefore not surprising that they were prepared to apply their assessment of gravity of the offending against the probability of deportation if a conviction was entered.
(footnote omitted)
[49] It follows that a real risk of deportation might determine an application for a discharge without conviction in cases where the immigration authorities may decide an offender’s status with reliance on a conviction alone without due consideration of the circumstances of the offending. That risk is higher in cases where the seriousness of the offending cannot be determined solely by reference to the nature of the charge.
[50] That risk arises in cases where the nature of the offence itself does not necessarily speak to the gravity of the offence and the culpability of the offender. I do not consider those concerns would ordinarily arise in relation to a conviction for driving with excess breath alcohol. In those cases, the seriousness of the offending can more likely be assessed by reference to the charge and basic facts, such as the breath alcohol level and associated bad driving.
[51] Decision makers within Immigration New Zealand will examine the gravity of Mr Skakun’s offence. That will include consideration of his personal response and in particular his participation in the highly regarded Right Track Programme. The decision makers will have regard to other personal mitigating factors including the early guilty plea and the charitable donation. Regard will no doubt be had to the qualifications Mr Skakun has secured in New Zealand, his ongoing employment, the powerful character references and what he describes as a stable relationship with a New Zealand resident. The fact this is his second offence will be another relevant consideration.
[52] I do not consider this to be a case where the immigration authorities might determine that outcome solely on the basis of a conviction alone, that is to say without due consideration of Mr Skakun’s personal and professional ties to New Zealand.
[53] The other category of case where the courts have accepted that deportation is a risk of conviction of real relevance in the discharge without conviction assessment relates to resulting harm to an offender’s family unit. Ms Surrey points to evidence from Mr Skakun about his concerns and, indeed, fear that deportation will risk destroying his long-term relationship with his partner. Very little evidence has been offered as regards to that relationship. But I accept that the presence in Court of Mr Skakun’s New Zealand partner and his partner’s family is testament to the strength of that relationship. No doubt further details of that relationship might be made available to the immigration authorities. However, I am not satisfied that relationship falls within the category described as a breakup of a family unit.
[54] Ultimately every case will turn on its own merits. Ms Surrey is right when she submits that Mr Skakun faces a higher risk of being deported than the appellants in some of the cases I have discussed. However, that is a consequence of him having reoffended within three years. Mr Skakun has been, and will continue to be, heard as to the mitigating and personal circumstances of both the offending and offender. It is those factors that will ultimately determine the outcome in terms of his immigration status and not the mere fact of a conviction.
Proportionality
[55] I accept that there is a real and appreciable risk of deportation, but I am not satisfied that risk clearly outweighs the gravity of a second offence within three years for driving with excess breath alcohol. I might have found otherwise had this been Mr Skakun’s first offence of driving with excess breath alcohol coupled with a positive and rehabilitative response, but it was not.
[56] Whether Mr Skakun will be permitted to remain in New Zealand is for the immigration authorities to determine.
Result
[57]The appeal is dismissed.
...................................................
Eaton J
Solicitors:
Crown Solicitors, Invercargill Mactodd Limited, Queenstown
0
7
0