Sunda v Police
[2019] NZHC 756
•9 April 2019
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2019-485-8
[2019] NZHC 756
BETWEEN KARANVIR SUNDA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 9 April 2019 Counsel:
E M Bransgrove for Appellant D M Helm for Respondent
Judgment:
9 April 2019
ORAL JUDGMENT OF CHURCHMAN J
Introduction
[1] On 5 July 2018, Mr Sunda pleaded guilty to one charge of male assaults female.1 He sought discharge without conviction, principally on the ground that there was a real and appreciable risk that a conviction would result in his deportation and that such a consequence would be out of all proportion to the gravity of his offending.
[2] On 13 February 2019, Mr Sunda’s application was dismissed by Judge Mill in the Wellington District Court; he was convicted and ordered to pay a fine of $1,000.2
Factual background
[3] On the evening of 22 April 2018, Mr Sunda and his wife, the victim in this matter, were at home. She was on the phone with her mother. The victim mentioned
1 Crimes Act 1961, s 194(b); maximum penalty two years’ imprisonment.
2 Police v Sunda [2019] NZDC 2452.
SUNDA v NEW ZEALAND POLICE [2019] NZHC 756 [9 April 2019]
Mr Sunda’s drug habits and he became upset, punching her once in the face before grabbing her by the arm with enough force to break the skin. Mr Sunda punched her again in the face, causing her nose to bleed. He dragged her out of her chair and pulled her into the bathroom to get her to clean the blood off her face. When she called a friend for help, Mr Sunda grabbed her phone from her hand and disconnected the call. He then dragged her back to the bedroom, putting her to bed and telling her to go to sleep. As she tried to get out of bed, Mr Sunda would push her back down.
[4] Eventually, the victim’s friend arrived and took her to the police station to report the incident.
[5] As a result of the assault, the victim, who was 14 weeks’ pregnant at the time, sustained a bloodied nose, a cut inside her mouth, and bruising to her arms and face.
District Court decision
[6] The Judge determined that there were no mitigating circumstances in terms of the offending, finding that it “was sustained violence over a period of time” against his pregnant wife.3 He did, however, note that there were a number of personal mitigating circumstances:4
First of all, you have no previous convictions and therefore are otherwise of good character. You are attending a programme. I have got letters from the programme to say that you are attending that programme and the progress is satisfactory. That is a programme to address violence and I commend you for that.
[7] He further noted that the victim supported a discharge without conviction, that she did not have any concern for her or her daughter’s safety, and no longer wanted to have a protection order. The victim had said that it was a one-off thing, that Mr Sunda was really protective and that there is now a lot more support around him.5
[8]The Judge stated:
[8] What I conclude from this is this is a serious assault being a sustained assault over a period of time against a vulnerable victim. It was not a
3 At [6].
4 At [6].
5 At [7].
momentary lapse of control and it was not trivial at all. So it is a serious assault which carries a maximum penalty of two years’ imprisonment.
[9] In terms of the consequences of a conviction, the Judge considered the likelihood that Mr Sunda might become liable for deportation, taking into account the evidence from Mr Laurent, a lawyer specialising in immigration law.6 He also referred to the case of Zhang v Ministry of Economic Development in which Asher J made comments to the effect that matters such as these are best left to the immigration authorities.7 The Judge determined that there was no certainty as to whether Mr Sunda would be deported.8 He concluded:
[22] The mitigating factors in this case are very significant indeed but not sufficient for me to conclude that exposing you to the process and possibility of deportation is out of all proportion to the seriousness of the offending.
The appeal
[10]Mr Sunda appeals his conviction and sentence on the basis that:
(a)the Judge did not properly follow the three-stage test set out in R v Hughes, in that he did not take into account the significant mitigating factors of the defendant when assessing the overall gravity of the offending;9
(b)the Judge erred in finding that the assault was sustained and did not represent a momentary lapse of judgement;
(c)for these reasons, the Judge’s assessment of the gravity of the offending was overstated;
(d)the Judge erred in finding that there was only a “possibility of deportation” if Mr Sunda was convicted, as the expert evidence before
6 At [19].
7 Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-000452, 17 March 2011.
8 Sunda v Police, above n 2, at [20].
9 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.
the Court confirmed that there was (and still is) a real and appreciable risk of such consequence occurring; and
(e)the real and appreciable risk of Mr Sunda’s deportation upon conviction was out of all proportion to the overall level of offending in this case, such that Mr Sunda should have been discharged without conviction.
[11]The Crown opposes the appeal, arguing that:
(a)there was no material error by the Judge in entering a conviction in the circumstances; and
(b)the sentence imposed was available and appropriate.
Relevant law
[12] Section 106 of the Sentencing Act 2002 (the Act) provides that if a person who is charged with an offence is found or pleads guilty, the Court “may discharge the offender without conviction, unless by any enactment applicable to the offence the Court is required to impose a minimum sentence”.
[13]The application of s 106 is guided by s 107 which provides as follows:
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.
[14] An appeal against the refusal to grant a discharge without conviction is a composite appeal against conviction and sentence.10 The basis for determining an appeal against a refusal to grant a discharge without conviction is whether a miscarriage of justice has occurred:11
10 Jackson v R [2016] NZCA 627 at [6]-[16].
11 At [12].
(a)by virtue of a material error by the sentencing Judge in entering a conviction; or
(b)as a result of an error by the Judge in applying the principles of discharging an offender without conviction under s 107 of the Act.
[15] As stated by the Court of Appeal in R v Hughes, s 107 “provides a gateway through which any discharge without conviction must pass”.12 The Court noted that such an appeal is not an appeal against the discretion of the Court. The Court said:13
[11] The decision as to whether the test under s 107 has been met is not a matter of discretion. It is a matter of fact requiring judicial assessment, which can be subject to appeal on normal appellate principles ... The discretionary power of the court to discharge without conviction under s 106 arises and exists only if the court is satisfied that the s 107 threshold has been met.
[16] The approach to be adopted by an appeal court in relation to s 107 has been summarised as:14
[28] An appeal against a refusal to grant a discharge without conviction is by way of rehearing. Normal appeal principles apply as set out in Austin, Nichols & Co Inc v Stichting Lodestar. In Heke v R, the Court of Appeal confirmed the application of an Austin, Nichols approach in criminal appeals where the decision under appeal involves a matter of fact requiring judicial assessment. Later in Paia v R, the Court of Appeal confirmed the approach taken in Heke. Thus, when it comes to a decision under s 107, the appellate court must come to its own view of the merits; the weight the appellate court gives to the original decision is a matter of judgment; and that deference to the assessment of the original decision-maker is not necessary, even where the assessment requires a value judgment. If the appellate court considers that the original decision is wrong, it must act on that opinion.
[17]More recently, the Court of Appeal, speaking of the s 107 test, said:15
[11] It is settled that a court considering a discharge under s 106 of the Sentencing Act 2002 should follow a three-step process addressing the guidance given in s 107. These steps are:
(a)identification of the gravity of the particular offence, taking into account all aggravating and mitigating factors of the offending and the offender;
12 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8].
13 At [11].
14 Denden v Police [2014] NZHC 1814 (citations omitted).
15 Prasad v R [2018] NZCA 537 (citations omitted).
(b)identification of the direct and indirect consequences of conviction; and
(c)a determination of whether those consequences are “out of all proportion” to the gravity of the offence.
Only if that threshold is met can the court move to consider 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.
[18] In terms of the gravity of the offence, the Court of Appeal in Z (CA447/2012) v R summarised the correct approach to take as follows:16
[W]hen considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender; the court should then identify the direct and indirect consequences of conviction for the offender and consider whether those consequences are out of all proportion to the gravity of the offence; if the court determines that they are out of all proportion, it must still consider whether it should exercise its residual discretion to grant a discharge (although, as this Court said in Blythe, it will be a rare case where a court will refuse to grant a discharge in such circumstances).
[19] When considering the direct and indirect consequences of conviction on a defendant, the Court of Appeal stated that:17
The Judge does not have to be satisfied that the direct and indirect consequences will inevitably or probably occur; it is sufficient if he or she is satisfied there is a real and appreciable risk of such consequences.
[20]The Court of Appeal recently confirmed in R v Smyth that: 18
[12] It is not enough that the consequences of a conviction outweigh the gravity of the offending. Significantly more is required. The consequences must be out of all proportion to the gravity of the offending before the court has jurisdiction to grant a discharge without conviction.
[21] Once the Court is satisfied the disproportionality test has been met pursuant to s 107, it may then determine whether to order the discharge.19
16 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27] (citations omitted).
17 DC (CA47/2013) v R [2013] NZCA 255 at [43].
18 R v Smyth [2017] NZCA 530.
19 Z (CA447/2012) v R, above n 9, at [21]; R v Hughes, above n 6, at [8]-[12].
Gravity of the offending
[22] Counsel for Mr Sunda, Ms Bransgrove, acknowledges that his offending involved violence against his pregnant wife, acknowledging that her pregnancy was an aggravating factor that would need to be considered. She submitted that the domestic violence context of the offending was not necessarily an aggravating factor. I reject that submission. In this case, as will commonly be the case in instances of domestic violence, the victim was in a vulnerable and dependent situation and that aggravates the nature of the offending.
[23] Ms Bransgrove noted that the victim’s injuries were not permanent, and that she did not require medical treatment. She submitted that Mr Sunda is not an inherently violent man, the assault being completely out of character with no premeditation involved, and she noted that the couple have now reconciled. Ms Bransgrove submits that Mr Sunda has made considerable efforts to rectify his offending, receiving ongoing counselling once a week which is not limited just to anger management but also now focusses on how to be a supportive partner and parent.
[24] In the District Court, Judge Mill noted that Mr Sunda had commenced on a counselling programme and he rightly commended him for doing that. Since the time of the District Court hearing, it is to Mr Sunda’s credit that he has completed that programme and that he has also undertaken some counselling in relation to his obligations in the family context. They are matters of some significance in terms of mitigation.
[25] As to other matters of mitigation, Ms Bransgrove submitted that the following factors reduce the gravity of the offending in this case:
(a)Mr Sunda’s early guilty plea. He pleaded guilty at the earliest opportunity;
(b)the considerable efforts he has made to make amends for the harm he has caused, including rehabilitation at his own initiative;
(c)his expression of deep remorse for his actions;
(d)the fact that Mr Sunda has no prior convictions. He can claim otherwise to be a man of good character; and
(e)the fact that the victim supports Mr Sunda’s application for a discharge without conviction.
[26] In relation to that latter matter, I note Ms Helm’s submission that in the context of domestic violence, it is not unusual for the Courts to experience a situation where a victim has reviewed her position, and while initially, as the victim in this case had done, has expressed issues of concern as to her safety, but has modified her views with the passage of time.
[27] While the Judge undertook an analysis of the gravity of the offending, Ms Bransgrove submits that he did not provide any discount for what he had noted as being “very significant” mitigating factors relating to Mr Sunda. Ms Bransgrove submits that this is inconsistent with the approach in Z v R which requires that all relevant aggravating and mitigating factors relating to the offending and the offender must come into play when considering the gravity of the offence. She submits as such, the Judge did not properly apply the first limb of the three-stage test required under s 106. It is further submitted that he also failed to take into account Mr Sunda’s early guilty plea and expression of remorse.
[28] In terms of the offending itself, Ms Bransgrove submits that the Judge was incorrect to find that the assault was “a sustained assault over a period of time” and did not represent “a momentary lapse of control”. She submits that the facts indicate the assault was brief, without premeditation, and completely out of character, and that there is nothing to indicate that Mr Sunda’s actions were anything but a momentary lapse of control.
[29] Ms Helm, for the Crown, however, submits that the Judge correctly identified the offending as being a sustained assault rather than a “momentary lapse of control”, noting that Mr Sunda inflicted more than one punch to the victim’s head and dragged her through the house, exerting a significant level of power and control over her. She refers to the Solicitor-General v Hutchison in which it was acknowledged that
“[f]amily violence has become one of the scourges of New Zealand society”.20 I endorse that observation.
[30] The Court of Appeal stated that violence occurring in the victim’s home will normally be treated as an aggravating factor, because such violence involves “inherent vulnerability” where one “cannot realistically or effectively lock the door against a co- occupant”.21 Ms Helm submitted that the victim’s vulnerability was further increased in this case by the fact of her pregnancy. That matter is accepted by Ms Bransgrove and, while the victim’s injuries were not serious, it was nevertheless open to the Judge to conclude that the gravity of the offence was serious for its type.
[31] The Crown accepts the factors identified by Ms Bransgrove as reducing the overall seriousness of Mr Sunda’s offending and acknowledges that, although the Judge identified the presence of significant mitigating factors, it is unclear whether he assessed the aggravating and mitigating factors of the offending and offender together so as to come to a decision on the overall gravity of the offending.
[32] However, the Crown submits that if the first stage of the assessment from Z (CA447/2012) v R is approached afresh, it is nevertheless open to the Court to find that the overall gravity of the offending is at least moderate, having regard to the aggravating and mitigating factors identified above.
[33] Ms Helm, in the course of her oral submissions, accepted that if the Court assessed the overall gravity of the offending as being low, there was a stronger argument that the consequences were out of all proportion to the offending.
[34] It is my view that this was a serious, prolonged assault on a vulnerable victim. However, once the significant mitigating factors are taken into account, the overall gravity of the offending is best described as moderate, which was recognised by the Judge in his decision to fine Mr Sunda $1,000 on an offence which carries a maximum penalty of two years’ imprisonment.
20 Solicitor-General v Hutchison [2018] NZCA 162, [2018] 3 NZLR 420 at [27].
21 At [27].
Consequences of a conviction
[35]I turn now to the consequences of a conviction.
[36] Randerson J in Iosefa v Police described the correct approach to assessing the consequences of conviction as follows:22
[I]t is not necessary for the Court to be satisfied that the identified direct and indirect consequences would inevitably or probably occur. It is sufficient if the Court is satisfied that there is a real and appreciable risk that such consequences would occur.
[37]He continued:23
However, the nature and seriousness of the consequences and the degree of likelihood of their occurring will be material to the Court’s assessment of whether those consequences would be out of all proportion to the gravity of the offence.
[38] In terms of the consequences of conviction, Ms Bransgrove notes that the Judge had accepted that a conviction for male assaults female would trigger Mr Sunda’s liability for deportation under s 161 of the Immigration Act 2009 and this would be a “very serious” consequence of his offending.24 The Judge concluded, however, that deportation was merely a possibility and that such matters were best left to immigration authorities.25 Ms Bransgrove, relying on the affidavit provided by Mr Laurent, submits that the Judge erred in finding there was only a “possibility” of deportation in Mr Sunda’s case, and argues that Mr Sunda faces a real and appreciable risk of deportation which would have the flow-on effect of breaking his family unit up. Furthermore, as he is the sole-income earner, his wife and daughter would undoubtedly face financial hardship were he to be deported. While there will be checks and balances throughout the deportation process which might mitigate against deportation, deportation remains a likely or foreseeable outcome.
[39] Secondly, Ms Bransgrove further submits that the Court is not always bound to leave immigration matters to the immigration authorities. She acknowledges that
22 Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [34]; affirmed in DC v R
[2013] NZCA 255 at [43].
23 At [35].
24 Police v Sunda, above n 2, at [10] and [15].
25 At [21] and [22].
the appellate courts have traditionally cautioned that there is a need for restraint when considering consequences that are the domain of professional regulatory bodies.26 However, Ms Bransgrove submits it is manifest in the jurisprudence that, in all situations, the Court retains the overall discretion. She notes there is a body of recent case law which is increasingly moving away from the traditional view that the Courts ought not usurp the role of statutory bodies such as Immigration New Zealand, and she brings to the Court’s attention a number of cases in which it was contemplated that immigration consequences are capable of supporting a s 106 application.27 I discuss some of these cases below.
[40] The Court acknowledges that it is a well-established principle that a “real and appreciable risk” that a consequence of a conviction will ensue is all that is required. It is, however, noted that the nature and seriousness of those consequences, and the degree of likelihood of their occurring, will be material to the Court’s assessment of whether they would be out of all proportion to the gravity of the offence.28
[41] The Crown acknowledges that Mr Laurent is a suitably qualified expert but submits that, notwithstanding his evidence, the outcome of the deportation process cannot reasonably be predicted.29 The Crown submits that it was open to the Judge to conclude that the assessment of liability for deportation should be determined by the relevant authorities, in accordance with Zhang v Ministry of Economic Development.30 Although Mr Sunda would be liable for deportation if a conviction is entered, the Crown submits the Judge correctly identified that statutory process that would be available to challenge the deportation. The Crown submits that this case is comparable to Singh v Police in which Toogood J, in the context of an assault against a vulnerable victim, concluded that it was more appropriate to leave the matter to the immigration authorities. In that case Toogood J said:31
26 A v R [2011] NZCA 328; Zhang v Ministry of Economic Development HC Auckland CRI-2010- 404-453; Stewart v Police [2015] NZHC 165.
27 Goody v R [2017] NZHC 2172; Chang v Police [2017] NZHC 1119 at [15]; Tao v Police [2015] NZHC 3324; T v Police [2016] NZHC 1773; Renshaw v Police [2014] NZHC 1171 at [26]-[28]; and Chand v Police [2017] NZHC 1119 at [15].
28 Maraj v Police [2016] NZCA 279 at [31].
29 Rahim v R [2018] NZCA 182 at [29].30 Zhang v Ministry of Economic Development, above n 26.
31 Singh v Police [2019] NZHC 417.
[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.
[42] There are a number of analogous cases, of which I will discuss two. Firstly, there is Chand v Police in which the appellant had been convicted of male assaults female after pulling his pregnant wife’s hair, causing her to fall down some stairs and sustain bruises.32 He received notification that deportation was being contemplated. In the decision dealing with Mr Chand’s application for leave to appeal, Brewer J acknowledged that the Courts will generally leave deportation matters to the Immigration Service but said:
[15] There will be cases where the s 106 discretion should be exercised and the matter, therefore, not left for determination by the Minister of Immigration. One case is Jeon v Police33. Ultimately, as with Jeon v Police and similarly in Kumar v Police, it depends upon the gravity of the particular offence.34
[43] On appeal, it was accepted that deportation was likely unless a s 106 application was granted.35 Additional factors at play in that case were that the appellant had become the sole caregiver of the child, and that, absent ministerial intervention, he would be deported because of a prior conviction.36 Muir J concluded that he had “no hesitation in finding that, in the particular circumstances outlined the consequences of conviction would be out of all proportion to the gravity of the offence”.37
32 Chand v Police, above n 27.
33 Jeon v Police [2014] NZHC 66 at [20].
34 Kumar v Police [2015] NZHC 3293.
35 Chand v Police [2017] NZHC 2188 at [12].
36 At [33].
37 At [34].
[44] In R v Kumar, the appellant was convicted of a charge of assault with a weapon, the assault occurring in the context of the workplace.38 As a consequence of the conviction being entered, Mr Kumar had become liable for deportation. Wylie J noted that, while deportation was not inevitable, it was a “real and appreciable” possibility and that there were third party consequences for his wife and unborn child which were relevant and could be taken into account.39 An order was made under s 106 that Mr Kumar be discharged without conviction.40
[45] The Court does not need to be satisfied that Mr Sunda will inevitably be deported; it is enough that there is a real and appreciable risk of this happening. It is my view, in this case, contrary to the view of the District Court Judge, that deportation is indeed a real and appreciable possibility on the facts of this case. While the consequences might not reach the level of that in Chand v Police, in that Mr Sunda is not the sole carer of a young child, the consequences of deportation would impact not just on him but on his wife and child which, as in R v Kumar, is a factor to be taken into account.
Proportionality
[46] As to proportionality, Ms Bransgrove submits that the reduction of gravity through the mitigating factors I have discussed above, reduces the level of the offending to such an extent that the real and appreciable risk of deportation as a consequence of conviction would be out of all proportion to the offending.
[47] The Crown submits that, the gravity of the offending being moderate, the consequences of a conviction would not be out of all proportion to the gravity of the offending and, therefore, the balancing exercise properly weighs against a discharge without conviction.
[48] I have had the advantage which the District Court did not, of knowing that Mr Sunda has successfully completed not only the anti-violence counselling but also counselling in relation to his other responsibilities as a husband and father. That is a
38 R v Kumar, above n 30. 39 At [41]-[42] and [45]. 40 At [48].
matter which also impacts on my assessment of the gravity of the offending in this case.
[49] My conclusion is that, while the gravity of Mr Sunda’s offending should be categorised as moderate, the consequences of a conviction would be out of proportion to the offending and would fall not solely on him but indeed more heavily would fall on his wife and infant child. Were he to be deported as a result of this conviction, his family would either have to leave New Zealand with him or remain behind, likely facing financial hardship as a result. I am advised from the Bar by Ms Bransgrove that in the event that Mr Sunda was deported, it is likely that his wife and child would remain in New Zealand. These could not be described as minor consequences of a conviction.
Result
[50] I am therefore satisfied that the Judge erred in his decision in that he did not give sufficient weight to the mitigating factors in assessing the overall gravity of the offending and he incorrectly concluded that there was only a possibility of Mr Sunda being deported when there is, in fact, a real and appreciable risk that might happen. It is my view that the consequences of a conviction in this case is out of proportion to the overall gravity of the offending, albeit by a fine margin.
[51] I would note that it will not be common where there is a case of sustained domestic violence that the Court will come to such a conclusion but in this case, I believe it is the appropriate conclusion.
[52] Accordingly, the appeal is allowed. Mr Sunda’s conviction is set aside and an order is made under s 106 of the Act that he be discharged without conviction.
Churchman J
Solicitors:
John Miller Law, Wellington for Appellant
Crown Solicitor’s Office, Wellington for Respondent
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