T v Police
[2016] NZHC 1773
•2 August 2016
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 RespondentJudgment:
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 Act.
[8] As to the first stage in that analysis, the Judge viewed the gravity of the offending as being low level.
[9] In terms of the second stage, the Judge observed that the impact of the conviction on any subsequent application to return to New Zealand was negligible. He went on to say that there was clear authority that immigration consequences should not be taken into account in considering an application under s 106 as those matters were properly the domain of the Immigration Authorities.
[10] Finally, the Judge concluded that a disproportionate effect of conviction had not been shown and declined the application for a discharge. After reviewing a number of sentences he determined a conviction and discharge as being appropriate.
Relevant legal principles
[11] Section 106 of the Sentencing Act gives the Court the discretion to discharge an offender. Section 107 provides that this discretion cannot be exercised unless the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[12] Section 107 requires the Court to undertake a three-step analysis and consider:4
(a) The gravity of the offence;
(b) The direct and indirect consequences of a conviction; and
4 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [8].
(c) Whether those consequences are out of all proportion to the gravity of the offence.
[13] In Maraj v Police, the Court of Appeal confirmed that:
… the third step described in Z (CA 447/2012) v R is subject to the Austin, Nichols approach on appeal: if the appellant can show that the first instance decision was wrong he or she is entitled to a fresh assessment by the appellate court.5
Gravity
[14] The Crown does not dispute the Judge’s assessment that the gravity of the offending was low.
[15] Although any form of an assault on a child is serious, I nevertheless agree that the nature of the offending in this case is at the minor end of the scale. The fact that T immediately confessed to the assault, pleaded guilty at the earliest opportunity, and willingly completed counselling and parenting programmes, reinforces that assessment.
Direct and indirect consequences
[16] T submits that a conviction will have an adverse impact on any subsequent application to re-enter New Zealand, and on her employment prospects in Tonga. She submits that this will also have an impact on both her children, who are New Zealand citizens, as they will be unable to access New Zealand’s education and health care resources.
[17] The evidence regarding the impact of a conviction on T’s employment is very
thin. In her affidavit she describes her husband as the breadwinner for their family and describes the work he was doing in Oamaru prior to deportation. I infer from
5 Maraj v Police [2016] NZCA 279 at [11]. The Court of Appeal also observed that the application of the Criminal Procedure Act 2011 to decisions made under s 106 may require consideration in another case and not by a Divisional Court. In that case, the Court proceeded on the basis that the appeal was correctly treated as an appeal against conviction without determining the point. I proceed on that basis also.
this that T was not working in New Zealand at the time of the investigations leading to the charge.
[18] T states in her affidavit that she knows that a conviction for an offence involving violence will seriously hamper her chances of finding work in Tonga. From the bar, Mr Foliaki informed me that T is trained as a banking officer, and that any conviction will make it very difficult for her to secure work with a bank in Tonga.
[19] I accept that a conviction is likely to have consequences for finding employment. But in the absence of any detailed evidence in support, it is difficult to assess the extent of that impact. The primary focus, in my view, is on the immigration consequences which flow from a conviction.
[20] The parties are agreed that the Judge erred in determining that immigration consequences are never relevant in an application for a discharge without conviction. There is no absolute rule to that effect. As was the case in Jeon v Police, immigration consequences may be out of all proportion to the gravity of offending
and can therefore justify a discharge without conviction.6
[21] Nevertheless, the courts have traditionally been reluctant to intervene in issues which properly fall within the domain of Immigration authorities. In Zhang v Ministry of Economic Development, Asher J stated:7
… 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 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 ...
6 Jeon v Police [2014] NZHC 66.
7 Zhang v Minister of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011 at [14].
[22] In Renshaw v Police, Asher J drew a distinction between immigration consequences which result in the imperilling of an existing legal resident status (such was the case in Jeon v Police), and those which do not.8 In Renshaw, the appellant did not have any legal status in New Zealand, and Asher J found that the conviction was unlikely to be conclusive or highly relevant to the consideration of that immigration position. The appeal from a refusal to grant the discharge application was dismissed.
[23] In this case, the deportation consequences do not flow from a conviction, but from T’s residence in this country illegally. The only relevant consequence to be considered therefore is the impact of a conviction on any subsequent application for a visa to enter into New Zealand. It is common ground that T will not be able to
apply for such a visa for five years from the date of deportation.9
[24] Both counsel provided me with extracts from the Immigration New Zealand Operational Manual which was not before the District Court Judge. Those extracts establish that, because of the conviction, T will be considered ineligible for a temporary entry class visa, or a residence class visa, unless a character waiver is granted.10
[25] However, directions contained in the Operations Manual stipulate that an immigration officer must not automatically decline an application for a visa on character grounds. Rather, an officer considering an application for a temporary entry class visa must consider whether the applicant’s reason for travel to New Zealand and surrounding circumstances are compelling enough to justify making an exception to the character requirement, taking into account the public
interest.
8 Renshaw v Police [2015] NZHC 110 at [33].
9 See Immigration Act 2009, ss 15(1)(d), 15(3)(c) and 179.
10 In relation to temporary entry class visas, see Immigration New Zealand Operational Manual at
[A45.45], which provides that those who have been convicted at any time of an offence in New Zealand for which the court has the power to impose imprisonment for a term of three months or more, will normally not be granted a visa unless a character waiver is granted. In relation to a residence class visa, the relevant categories are a person convicted of an offence involving violence, and convicted of an offence committed when the person was in New Zealand unlawfully: at [A25.25].
[26] Similarly, an officer considering an application for a residence class visa must also consider the surrounding circumstances of the application to decide whether or not they are compelling enough to justify waiving the good character requirement. A non-exhaustive list of circumstances then follows. Those which are of particular relevance to T’s position include the following:
i. If applicable, the seriousness of the offence (generally indicated by the term of imprisonment or size of the fine);
ii. Whether there is more than one offence;
…
iv. How long ago the relevant event occurred;
v. Whether the applicant has any immediate family lawfully and permanently in New Zealand;
vi. Whether the applicant has some strong emotional or physical tie to
New Zealand.
[27] It is therefore apparent that the conviction will have an impact on any subsequent visa application made by T. But there is no evidence that a conviction will result in such an application being automatically declined. In fact, the directions in the Operational Manual suggest that the surrounding circumstances, including reasons for re-entry and seriousness of offence, will be of more importance than the fact of the conviction itself.
[28] I accept that the impact of conviction on T’s children is an indirect consequence which must be weighed in the balance. But, in this case, the impact on the children depends upon the outcome of T’s visa application. To that extent, the consequences for the children are not separate and independent from the impact of a conviction on any subsequent visa application made by T.
[29] It is these consequences which must be weighed against the gravity of the offending in the proportionality assessment which forms the third stage of the assessment.
Proportionality assessment
[30] A discharge without conviction may only be granted where the consequences of a conviction are out of all proportion to the offending.
[31] There is insufficient evidence of any impact on potential employment opportunities that goes beyond the ordinary consequences which might flow from a conviction.
[32] It is already accepted that the deportation is not a consequence of conviction, but of T’s illegal residence in this country. It is for that reason that a subsequent application for a visa must be made, and it is in that context that the extent of the consequences of conviction must be assessed.
[33] In my view, whilst a conviction places a further hurdle in front of T when she comes to apply for a visa, 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 the conviction will not assume much weight in the balancing exercise. The extracts from the Operations Manual suggest that the fact of conviction may have little direct bearing on the ultimate outcome of the application. In that context, the consequences of conviction cannot be said to be out of all proportion to the gravity of the offending.
[34] Furthermore, I consider this to be a case where the policy reasons for not granting a discharge application where immigration consequences are concerned are directly engaged. The weighing and balancing of the various factors are matters properly within the domain of immigration officials. Those factors include the impact on T’s children of not being able to return to New Zealand. It is not for this Court to pre-empt that process or intervene with that evaluative assessment at this stage.
[35] Looking at all these consequences in totality, I am not satisfied that they are out of all proportion to the severity of the offending. I am not therefore persuaded
that the Judge erred in refusing to grant a discharge without conviction and the appeal must be dismissed.
Result
[36] The appeal is dismissed.
Edwards J
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