Stephenson v Police
[2015] NZHC 3101
•8 December 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-274 [2015] NZHC 3101
BETWEEN RICHARD ANTHONY STEPHENSON
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 30 November 2015 Counsel:
W A Steedman for Appellant
M J Hammer and C P Eason for RespondentJudgment:
8 December 2015
JUDGMENT OF BREWER J
This judgment was delivered by me on 8 December 2015 at 12:30 pm pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel: Alex Steedman (Auckland) for Appellant
Meredith Connell (Auckland) for Respondent
STEPHENSON v POLICE [2015] NZHC 3101 [8 December 2015]
Introduction
[1] Mr Stephenson has been convicted of indecent assault and sentenced to
12 months’ supervision. He pleaded guilty to the charge and he asked Judge G Davis to discharge him without conviction.1 He now appeals the refusal by the Judge to do that.
[2] Mr Stephenson’s concern is that if the conviction stands he might be
deported.
Background
[3] Mr Stephenson is an Indian citizen and came to New Zealand on a student visa in March 2014. He has since completed a Diploma in Business and he has applied for a graduate work visa.
[4] His offending occurred at about 5:40 pm on 11 December 2014, when he was
25 years old. He noticed a 16 year old female walking alone along the road and began following her. He did not know her. He waited while she stopped at a dairy and continued to follow her. When nobody was in sight he approached the victim from behind and grabbed her buttocks firmly with one hand. He released his hold when she pushed him away and he then fled.
District Court judgment
[5] Judge Davis considered whether to discharge Mr Stephenson without conviction.2 He assessed the gravity of the offending, the direct and indirect consequences of a conviction, and whether the consequences of the conviction would be out of all proportion to the gravity of the offending. His Honour considered that a discharge without conviction was not justified.
[6] In summary, Judge Davis found:
1 Police v Stephenson [2015] NZDC 16431.
2 Sentencing Act 2002, s 106 and 107.
(a) the offending was at the moderate end of seriousness; the touching itself had to be viewed in light of the prolonged following of a young victim and the fact that it has had a pronounced effect on her. The victim impact statement showed that she has been frightened since the offending, has suffered panic attacks and considers that Mr Stephenson should not be allowed to go free without a conviction;
(b)the gravity of the offending is reduced because Mr Stephenson has a mental health condition. He was diagnosed with bipolar disorder in India in 2011. However, he had stopped taking treatment prior to the offending. A report prepared by Dr Goodwin, a specialist psychiatrist, said that at the time of offending, he may have been in a hypomanic state which may, if there was a level of disinhibition, have contributed to the offending. Taking this factor into account, the offending was moderate to low gravity, at the lower end of the scale for an indecent assault;
(c) the indirect consequence of a conviction is likely to be possible deportation from New Zealand. While it could not be said that Mr Stephenson would definitely be deported the test is whether there is a real and appreciable risk of deportation;
(d)however, it is not for the Court to usurp the functions of the immigration authorities to determine whether or not Mr Stephenson should be allowed to stay in New Zealand. The Court should not conceal or mask offending so as to distort information that may otherwise be placed before the authorities.
[7] Accordingly, Judge Davis considered that in the circumstances it could not be said that the consequences of a conviction would be out of all proportion to the gravity of the offending.
Appellant’s submissions
[8] Mr Steedman submits that the Judge did not take into account the extent of Mr Stephenson’s unwellness.3 He relies on two recent reports from Dr Goodwin and Ms Visser (a psychologist) which note that Mr Stephenson presents as naïve, socially inept, and conclude that he was hypomanic at the time of the offence. Mr Steedman submits that in light of these reports Mr Stephenson’s actions should be taken as impulsive, not premeditated and completely unfettered by any overriding self
control.
[9] Mr Steedman refers to Dr Goodwin’s comment in the new report that the sentencing Judge may have misconstrued his earlier report. Mr Stephenson was, in Dr Goodwin’s view, hypomanic at the time of the offending and the offending would not have occurred if he were not hypomanic.
[10] The next point raised in support of the appeal is that the Judge did not give enough weight to immigration issues. Counsel points to cases where the effect on immigration status has been considered.4
[11] Finally, counsel submits that Mr Stephenson has engaged with treatment and with psychiatrists and he is now, assisted by his sister, motivated and mindful to seek help.
New evidence
[12] A preliminary issue arises as to the admissibility of four additional sources of evidence now relied on by Mr Steedman in his submissions:
(a) An affidavit of Carole Curtis sworn 2 October 2015;
3 R v Nilsson CA552/99, 27 July 2000 is relied on. The Court of Appeal reduced the appellant’s sentence of four years to two years’ imprisonment based on the role that his psychiatric condition played in the offending. The Court considered it necessary to strike a balance between denunciation, acknowledgment of the effect on the victim, recognition of reduced culpability and the public interest in the appellant being helped to keep on his medication.
4 Amir Mohammed v New Zealand Customs Service HC Auckland CRI-2008-404-56, 29 May
2009. This case involved a charge of importing objectionable material. The appellant wished to be an airline pilot; and Jeon v Police [2014] NZHC 66, discussed below.
(b) The further report by Ms Visser dated 26 October 2015;
(c) The further report by Dr Goodwin dated 30 October 2015;
(d) An affidavit sworn by Mr Stephenson on 23 November 2015.
[13] Judge Davis gave his decision having considered a report by Dr Goodwin dated 24 June 2015, a report from Ms Visser dated 30 June 2015, an affidavit of Ms Curtis sworn on 26 June 2015 and an affidavit from Mr Stephenson. In submissions before me, Mr Steedman said that the second affidavit sworn by Ms Curtis “is not now advanced at this appeal”; however, he alluded to passages in it.
[14] I should consider the proposed new evidence if it is sufficiently fresh and sufficiently credible.5 Ordinarily, if the evidence could have been called at first instance, it will not qualify as sufficiently fresh.6 However, even if evidence is not fresh, I should consider it if there is a risk that there may be a miscarriage of justice if I do not.7
[15] The further reports of Dr Goodwin and Ms Visser provide updating material on Mr Stephenson’s mental health and progress. In particular, the reports make it clear that in their opinion he was suffering a hypomanic episode at the time of the offending, something which their earlier reports do not make clear. The impact of Mr Stephenson’s mental health on the overall gravity of the offending is of central relevance to the matter before me; accordingly, I will consider the further reports. Crown counsel, quite properly, does not object to the admission of the reports.
[16] However, the further affidavit of Ms Curtis is a different matter. In her first affidavit, Ms Curtis, a lawyer primarily practising in Immigration and Refugee law,
was asked to provide her specialist opinion on the consequences of conviction on
5 R v Ratu [2013] NZHC 3085 at [24].
6 R v Bain [2004] 1 NZLR 538 (CA) at [22] approved in R v Bain UKPC 33 (2007) 23 CRNZ 71.
7 Lundy v R [2013] UKPC 28 [2014] 2 NZLR 273 at [120].
Mr Stephenson’s immigration status. He currently holds an interim visa until his application for a work visa is determined.8 Ms Curtis deposes that:
(a) Section 16 of the Immigration Act 2009 could apply in the event that the Minister for Immigration has reason to believe that Mr Stephenson is, or is likely to be a threat or risk to security, the public order or the public interest. Section 16 provides that no visa may be granted to such a person.
(b)On being convicted Mr Stephenson would become liable for deportation under s 157(1) and (4) of the Act. He would be liable for deportation if the Minister determines there is sufficient reason to deport him. Sufficient reason includes criminal offending. In this situation there is the opportunity for Mr Stephenson to convince immigration that there is good reason for him not to be deported and there is a right of appeal to the Immigration Authority.
[17] Ms Curtis’s affidavit of 2 October 2015 addresses other provisions of the Immigration Act. Relevantly, Ms Curtis gives her opinion that as a result of the sentence of supervision, Mr Stephenson will be ineligible for a work visa because he will not meet the necessary character requirement unless he is granted a character waiver. She also attaches the Immigration Operation manual which lists the applicants who are normally ineligible for a temporary entry class visa, unless granted a waiver. Relevantly, this lists persons who have been convicted of an offence in New Zealand for which the court has the power to impose a term of imprisonment of three months or more. While I cannot see why this evidence was not provided in Ms Curtis’s first affidavit, given that it is important to have accurate information about the consequences of conviction, I am prepared to have regard to
the affidavit. It is really just references to the law and to practice.
8 The interim visa was granted on 5 May 2015. It is valid from the day after his previous visa expired (30 April 2015) until a decision is made on his work visa application, or up to a maximum of six months (whichever is earlier). Ms Curtis’s affidavit states that she understands a determination on the visa would not be made until these proceedings are finished. Accordingly, I am uncertain as to Mr Stephenson’s exact immigration status at this stage.
[18] I am not prepared to admit the second affidavit of Mr Stephenson. I agree with the Crown’s submission that it does not provide any further information to which I should have regard. It is largely a reiteration of his first affidavit.
Appeal
[19] An appeal against a refusal to discharge without conviction is by way of rehearing. I should undertake a fresh assessment and reach my own conclusion as to whether the threshold test in s 107 of the Act has been met.9 In doing so, I will consider Judge Davis’s reasoning to see whether his conclusion was the result of error.
Gravity of the offending
[20] I agree with Judge Davis’s characterisation of the offending as moderate taking into account the premeditation. Mr Stephenson waited for the victim at the dairy, followed her, and approached her when nobody was around. Although the actual touching in this case was relatively minor, I bear in mind that indecent assault is a serious offence, as demonstrated by the fact that it is a three-strike offence.
[21] Judge Davis was prepared to view the offending as being at the moderate to lower end of the scale, given Mr Stephenson’s mental health. The Judge had before him the first report of Dr Goodwin, which, as I have noted, said that Mr Stephenson may have had a level of disinhibition which may have contributed to his offending. The more recent reports submitted on appeal put the impact of his mental health more absolutely: Dr Goodwin says that Mr Stephenson was “hypomanic at the time of the offending which manifested as hyper sexuality”. Ms Visser reports that he was having a hypomanic episode and experienced heightened sexuality, heightened emotion and racing thoughts. She reports that he is very remorseful about his offending, which was totally out of character. She records that Mr Stephenson has now been taking treatment and attending sessions with Ms Visser. In her view, his
risk of re-offending is low.
9 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11]; and H v R [2012] NZCA 18 at [36].
[22] Having the benefit of the further medical reports, I accept that this places the offending at the lower end of the scale. Mr Stephenson’s response to the offending in seeking help and his commitment to stabilising his condition are also commendable. But given that he voluntarily stopped his treatment before committing the offence, he cannot be completed exonerated from responsibility.
[23] In short, on the further material now before me as to Mr Stephenson’s mental
health, I put the gravity of the offending at the lower end of indecent assault.
Consequences of conviction
[24] I now turn to assess the consequences of the offending. I must be satisfied that there is a real and appreciable risk of the claimed direct or indirect consequences occurring.10 The more serious the consequences and the greater the likelihood of them occurring the more likely it is that the test can be satisfied.
[25] Courts have generally concluded that it is appropriate for the immigration consequences of a conviction to be resolved by immigration officials rather than the courts. In the usual run of cases, the Court should not take it upon itself to decide immigration status or pre-empt a visa decision.11 However, this is not to say that immigration consequences can never be taken into consideration;12 in particular they may point towards a discharge in finely balanced cases.13 As Asher J said in Zhang v
Ministry of Economic Development:14
… 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 a decision to discharge without conviction. There is nothing that requires the courts to intervene to try and impose their perception of what the right immigration
10 Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005.
11 See for example A v R [2011] NZCA 328; George v Police [2014] NZHC 1725 at [46].
12 In Jeon v Police, above n 4, a decision relied on by the appellant, Woodhouse J considered that the question in that case was whether the momentary inadvertence resulting in a driving offence of moderate seriousness, and assessed against an otherwise exemplary life, should have the automatic consequence of the risk of deportation hanging over the appellant for up to 10 years.
His Honour was considering s 167 of the Immigration Act which meant that the appellant
“would remain liable for deportation for a period of 10 years following the arising of the liability
for deportation”.
13 Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011, at [14].
14 At [14].
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. 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 ...
[26] I accept that there is a real risk that a conviction will result in Mr Stephenson becoming ineligible for a work visa or liable for deportation. However, Immigration officials have the ability to waive the character requirements and will assess the circumstances of the individual case. In addition, I gained the impression from Ms Curtis’s affidavit that Immigration is aware of the current proceedings.
[27] I consider that the task of assessing the consequences of Mr Stephenson’s offending on his eligibility to remain in New Zealand is for Immigration officials, who will have the benefit of this Court’s opinion that the gravity of the offending is relatively low. Immigration officials will know also the underlying cause of the offending and have the evidence that, with the support of his sister, Mr Stephenson is working hard to control, and has stabilised, his condition.15
[28] I take into account that Mr Stephenson is a citizen of India and came to New Zealand on a student visa only last year. He has gained the qualification he wanted. He would like to stay in New Zealand and obtaining a work visa would further that goal. But if, as a result of his conviction, he has to return to his home country then that is not the sort of consequence which is potentially so severe that the Court should remove the risk (if it can) by discharging without conviction.
[29] For this reason I do not consider that the consequences of a conviction are out
of all proportion to the gravity of Mr Stephenson’s offending.
[30] As a fallback, Mr Steedman asked me to reduce the period of supervision to take account of the new evidence as to Mr Stephenson’s mental health and its effect
15 I agree with the Crown’s submission that the case is distinguishable from Jeon v Police, above n 4, where Woodhouse J found that the issue was the risk of removal of a residency permit. Here, Mr Stephenson’s study visa has expired and he is now required to make an application for a work visa.
on the offending. That is appropriate. I will reduce the sentence to nine months’
supervision.
Decision
[31] The appeal against the refusal to discharge without conviction is dismissed.
[32] The appeal against the sentence of 12 months’ supervision is allowed. A
sentence of nine months’ supervision is substituted.
Brewer J
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