T v Police - [2016] NZHC 1773

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000183 [2016] NZHC 1773

UNDER the Crimes Act 1961

IN THE MATTER OF

an appeal against declining to grant discharge without conviction

BETWEEN

T Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 26 July 2016

Counsel:

S J Foliaki and T O B Titimanu for the Appellant
H D Benson-Pope for the Respondent

Judgment:

2 August 2016

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 2 August 2016 at 3.00 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors: Community Legal Services South Trust, Auckland
Kayes Fletcher Walker Limited, Auckland

T v POLICE [2016] NZHC 1773 [2 August 2016]

[1] T pleaded guilty to assault on a child.1 The assault involved smacking one of her children on the hand with a spoon as a form of discipline. She appeals from the District Court Judge’s refusal to grant her a discharge without conviction.2 She says the District Court Judge erred when balancing the immigration consequences of a conviction against the gravity of her offence.

Factual background

[2] T is a 34-year-old mother of two young children, one of whom was the victim. She has no prior convictions.

[3] In November 2015, Child Youth and Family Services became involved with the family on an unrelated matter.3 The victim, who was seven years old at the time, disclosed that when he broke the rules at home, T would smack him on the hand with a large spoon. T immediately confessed to this when questioned about it.

[4] T voluntarily enrolled in a programme run by the Anglican Trust for Women and Children. A report from that Trust recorded T as being extremely remorseful for her offending. T has sworn an affidavit in which she says she has found the course very helpful. She says that she now knows that her actions were against the law and not an acceptable way of disciplining children.

[5] T’s immigration status was revealed as a result of investigations into the family. T is Tongan and she has been in New Zealand without a visa since May 2009. Her husband was also residing in New Zealand illegally and he was deported to Tonga in November 2015. T shall shortly be deported also. Their two children will return to Tonga with the rest of the family.

[6] The key issue on appeal is the impact of a conviction on any subsequent application for a visa to return to New Zealand.

1      Crimes Act 1961, s 194(a); maximum penalty two years’ imprisonment.
2      New Zealand Police v T [2016] NZDC 9160.
3      In an affidavit sworn in support of the application for a discharge without conviction, T says that
her son was bitten by a dog and concerns were raised by her son’s school.

[7] The District Court Judge referred to s 107 of the Sentencing Act 2002, and the three-stage process which applies in determining applications under s 106 of that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading T v Police

Details

AGLC: T v Police [2016] NZHC 1773
Case: [2016] NZHC 1773
Decision Date: 2 August 2016

CaseChat Overview and Summary

In the matter of an appeal against declining to grant discharge without conviction, T, the appellant, pleaded guilty to assaulting a child by smacking them on the hand with a spoon as a form of discipline. The District Court Judge refused to grant her a discharge without conviction, and T appeals against this decision. T argues that the Judge erred in balancing the immigration consequences of a conviction against the gravity of her offence. The appeal raises issues of whether immigration consequences should be considered when determining applications under section 106 of the Sentencing Act and if a conviction would have a disproportionate impact on T's ability to re-enter New Zealand and her employment prospects. The High Court found that while immigration consequences should not automatically preclude a discharge without conviction, they must be considered in the context of the proportionality assessment. The court held that a conviction places a further hurdle in front of T when she comes to apply for a visa, but it does not make that hurdle insurmountable. The fact that an immigration officer will carefully consider the nature of the offending, and the reasons for re-entering New Zealand, means that the fact of conviction may have little direct bearing on the ultimate outcome of the application. The appeal was dismissed, and the decision of the District Court was upheld.

Orders