Wanoa v Police

[2018] NZHC 259

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA TE ROTORUA-NUI-Ā-KAHU ROHE

CRI-2017-463-000055

[2018] NZHC 259

IN THE MATTER OF

an appeal against refusal to grant discharge without conviction

BETWEEN

CONRAD DAVID WANOA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

13 February 2018 (Heard at Tauranga)

Counsel:

G J Denize for the Appellant

O M Salt and R W Jenson for the Respondent

Judgment:

27 February 2018

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 27 February 2018 at 4.00 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Counsel:     G J Denize, Tauranga

Solicitors:    Pollett Legal (Office of the Crown Solicitor), Tauranga

WANOA v POLICE [2018] NZHC 259 [27 February 2018]

Introduction

[1]    Mr Wanoa pleaded guilty to one charge of burglary (under $500) and was sentenced to 80 hours’ community work and $692.50 in reparations.1 Judge Crayton declined Mr Wanoa’s application for a discharge without conviction under s 106 of the Sentencing Act 2002 (Act). Mr Wanoa appeals that decision.

[2]    The key issue in the appeal is whether the Judge erred in finding that the consequences for Mr Wanoa’s travel to Australia arising out of the conviction would not be out of all proportion to the gravity of his offending.

The offending

[3]    Some time between 2 September and 4 September 2017, Mr Wanoa broke into the recycling centre yard at a recycling station centre. He stole a quantity of car batteries which he exchanged for $318.75 on 4 September 2017.

[4]    When initially spoken to by police on 18 September 2017, Mr Wanoa denied having knowledge of the car batteries taken from the recycling centre. However, he later pleaded guilty to the burglary charge.

Personal circumstances

[5]    Mr Wanoa is 40 years of age. He lives with his partner, his 11-year-old child, and his partner’s three children aged nine, seven and six. Mr Wanoa has two other children, aged six and four years, who now reside with their mother in Australia.

[6]    At the time of the offending, all six children were living with Mr Wanoa and his partner. It appears to have been a very stressful time for Mr Wanoa. In an affidavit sworn in support of the application, Mr Wanoa says that he and his partner were in an extremely difficult financial situation. He says they did not have enough money to pay rent, cover day to day expenses or feed his family, and he felt in a desperate situation. He said he decided to take the batteries to get some cash to purchase food for his family. He describes this as a foolish decision made out of desperation.

1      Police v Wanoa [2017] NZDC 28395.

[7]    Contributing to Mr Wanoa’s stress was the fact that he was dealing with his mother’s breast cancer diagnosis whilst also embroiled in Family Court proceedings. Those proceedings also were ultimately resolved by consent, and parenting orders are now in place.

[8]    Mr Wanoa wishes to be able to visit his children in Australia, and possibly live in Australia at some time in the future. It is for this reason that he seeks a discharge without conviction, as he contends that a conviction will make it more difficult for him to enter Australia and therefore pursue a relationship with his children.

[9]    Mr Wanoa has convictions for excess breath alcohol from 2015, and a conviction from the early 2000s for cultivating cannabis.

[10]   He has been in steady employment and has the support of his employer who is well aware of the offending.

District Court decision

[11]   Mr Wanoa’s application for a discharge without conviction was considered by Judge Crayton on 12 December 2017.

[12]   The Judge reviewed the relevant principles to applications under s 107 and summarised the submissions made by both parties.2

[13]   The gravity of Mr Wanoa’s offending was assessed by the Judge by reference to its aggravating and mitigating factors. The aggravating factors included the premeditated nature of the offending due to the planning involved, avoidance of security measures, and multiple trips to procure the batteries which weighed over 400 kilograms. The Judge noted that the damage to the electronic fence surrounding the property was $373.75, and the value of the batteries taken was $318.75.3

[14]   In terms of mitigating factors, the Judge noted the personal circumstances of the defendant as outlined above. He took into account material provided by

2      Above n 1, at [4]–[9].

3 At [10].

Mr Wanoa’s partner regarding his role as a father, caregiver and step-parent; and also an affidavit of Mr Wanoa’s employer in support of the application.4

[15]   The Judge considered that the starting point, before any mitigating factors were taken into account, would be community detention.5 However, the “significant” mitigating factors meant that the end sentence would be significantly less than the imposition of community detention, and the Judge ultimately imposed 80 hours’ community work.6

[16]   The Judge considered the consequences of a conviction under two categories: travel and future employment.7 As the appeal is only focused on the first of those categories, the Judge’s findings on the second are not summarised in this judgment.

[17]   The Judge noted that there were no fixed plans or even a timeframe  for     Mr Wanoa’s travel plans to Australia. However, he recorded that the parenting orders made by the Family Court in relation to the two children residing in Australia may well be revisited when they reach teenage years, with the possible consequence that Mr Wanoa would either need to travel or relocate to Australia.8

[18]   The Judge reviewed the material put forward in support of the application regarding the entry requirements for those wishing to visit Australia. He noted that the presence of a conviction would not present an outright block or impediment to Mr Wanoa entering Australia, but he would be required to undergo a character assessment. The Judge noted, however, that Mr Wanoa would be required to undergo a character assessment in any event given his prior convictions for drink driving and for cultivating cannabis.9

4 At [12].

5 At [13].

6      At [14]–[15].

7 At [17].

8 At [19].

9      At [20]–[21].

[19]   On the materials before the Judge, it appeared to him that even if Mr Wanoa were to fail the first character test, there would be ministerial discretion over his application to enter Australia.10

[20]   In assessing the consequences of conviction, the Judge found that Mr Wanoa’s position would not be as good as it was previously if a conviction were entered, but that there was no good basis to say that because of the conviction he would not be able to visit, live or work in Australia. The Judge went on to say:

[36] The consequences on the defendant’s travel, particularly as it is identified to Australia, are again a matter of discretion for the authorities and on my assessment the authorities seized with all the information, will be best placed to make the assessment as to character. The fact of a conviction will not affect that assessment if the process is as described and all material is placed before the Court. The facts of the offence and the defendant’s position in the round would be relevant and the fact of conviction does not add significantly.

[21]   The Judge concluded that the consequences of conviction were not out of proportion to the gravity of the offence and the application was declined.

Approach on appeal

[22]   Section 106 of the Act gives the Court the discretion to discharge an offender without conviction. 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.

[23]   Section 107 requires the Court to undertake a three-step analysis and consider:11

(a)the gravity of the offence;

(b)the direct and indirect consequences of a conviction; and

10 At [23].

11     Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [8]; citing R v Hughes [2008] NZCA

546, [2009] 3 NZLR 222 at [8].

(c)whether those consequences are out of all proportion to the gravity of the offence.

[24]   If the offender meets the s 107 threshold, the Court may go on to consider whether to exercise the residual discretion under s 106.12

[25]   The proportionality test under s 107 is a question of fact requiring judicial assessment. It is subject to the Austin, Nichols approach,13 so if the appellant can show that the first instance decision was wrong, the appellate court undertakes the evaluation of the s 107 factors afresh.14

Gravity of offence

[26]   The notice of appeal states that the Judge erred in determining the gravity of the offence. However, this was not pressed with any vigour at the appeal hearing.

[27]   The Judge did not specifically categorise the gravity of the offending as either low, moderate or high. However, it may be inferred from the starting point of community detention adopted by the Judge, and the end sentence of 80 hours’ community work and orders of reparation once the mitigating factors were taken into account, that the Judge regarded the gravity of the offending as low.

[28]   Counsel for the Crown did not demur from that position at the appeal hearing. It also accords with my independent assessment of the gravity of the offending, particularly given the low value of the goods taken and the personal context in which the offending took place.

[29]   There was no error in the Judge’s assessment of the gravity of Mr Wanoa’s offending.

12     Z (CA447/12) v R, above n 11, at [9]; citing R v Hughes, above n 11, at [23].

13     See Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].

14 R v Hughes, above n 11, at [11]; H (CA680/11) v R [2012] NZCA 198 at [34]–[36]; and Maraj v Police [2016] NZCA 279 at [11]. The Court of Appeal in Maraj considered 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: at [7]. I proceed, as the Court did in Maraj, on the basis that the appeal is against conviction.

The direct and indirect consequences of a conviction

[30]   The second part of the s 107 test requires an assessment of the direct and indirect consequences of conviction. A “real and appreciable risk” that a consequence will ensue is all that is required.15

[31]   Mr Wanoa submits that the conviction will make it harder for him to travel to Australia to visit his children, or to reside there in the future to maintain a relationship with them. He has annexed extracts from the New Zealand Embassy website in Australia on travelling to Australia with a criminal conviction to substantiate his claim.

[32]   What is apparent from those materials is that every New Zealand citizen with a criminal conviction must obtain written confirmation from the Department of Immigration and Border Protection before travelling to Australia. That requirement applies no matter how long ago the conviction was entered and whether it has been removed from government records. Those with convictions are required to complete a consent to disclosure of information form which is sent to the Australian Consulate- General. Applicants are subsequently advised in writing as to whether they are required to lodge an application for a visa to enter Australia prior to travel.

[33]   Applicants for a visa (whether for entry or residence) must satisfy a character assessment. A fact sheet on the character assessment provides that decisions to refuse visas on the basis of the character test are made “after full consideration of all the circumstances of a case”. Guidance on the application of the character test provides that the test will not be passed in certain circumstances. Those circumstances involve more serious offending than Mr Wanoa’s offending, but they also include “where past and present criminal or general conduct shows that you are not of good character”.

[34]   Where a person does not pass the character test, the Minister for Immigration and Border Protection or their delegate will decide whether to refuse the application. A wide range of factors are taken into account in making that decision, including the best interests of any minor children in Australia and the effect on a person’s family in

15     DC (CA47/2013) v R [2013] NZCA 255 at [43].

Australia if a visa were refused. There are limited review rights of any decision to refuse a visa.

[35]   The first point to note is that Mr Wanoa does not have any definite plans to either visit or live in Australia in the near future. His two children in Australia are currently aged seven and five years. Family Court consent orders provide for those children to travel to New  Zealand  to  spend  time  with  their  father  and  sibling. Mr Wanoa’s concerns are about what will happen when his children reach teenage years and the Family Court orders are varied. That is still a number of years away. In Brunton v Police, Clifford J observed that tentative future travel plans carry little weight in a s 107 context.16 This presents a significant hurdle for Mr Wanoa in this appeal.

[36]   Furthermore, it is clear that the travel consequences which will flow from a conviction are a matter of discretion for the Australian authorities. As the Judge noted, a conviction will not operate as an automatic ban on entry into Australia. Rather, an evaluative exercise will be undertaken by the Australian authorities to ascertain whether Mr Wanoa meets the good character test.

[37]   Mr Wanoa will be subjected to the good character test even if a discharge is granted, because of his two prior convictions. Ms Denize submits that the presence of a third conviction will make it much harder for Mr Wanoa to pass the good character test. She submits that Australian immigration authorities are taking a robust, and at times severe, position with respect to New Zealanders with criminal convictions and their ability to reside in Australia. On that basis, she submits that there is a real and appreciable risk that a conviction for burglary will prevent Mr Wanoa from entering or residing in Australia.

[38]   I accept that, in principle, a third conviction for burglary will make it harder for Mr Wanoa to pass the good character test than if he only had the two minor and historic convictions on his criminal record. But just how much harder it will be is a matter of speculation. It will be for the Australian authorities to weigh and consider

16     Brunton v Police [2012] NZHC 1197 at [16].

how the third conviction reflects on Mr Wanoa’s good character, and whether he should be denied entry into Australia as a result.

[39]   That evaluation will be conducted with reference to all relevant circumstances. In Zhang v Ministry of Economic Development, Asher J stated that 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.17

[40]   Ms Denize says that the Judge erred in concluding that the authorities would be “seized with all the information” in assessing the consequences which would flow. I accept that the particular information taken into account is not specified in the materials before the Court. But there is no reason to suggest that the Australian authorities will not consider the nature of the offending and the circumstances which led to it occurring. In any respect, Ms Denize has not produced any evidence to say that Mr Wanoa himself would be prevented from providing this information to the immigration authorities in support of his application.

[41]   The fact that all relevant circumstances are to be taken into account in assessing whether Mr Wanoa is a person of good character suggests that any adverse consequences for Mr Wanoa’s travel to Australia will arise out of the nature of the offending, rather than the conviction.

[42]   In summary, the impact of a conviction on Mr Wanoa’s future travel plans is uncertain, and somewhat speculative. A third conviction might make it harder for  Mr Wanoa if he were to apply for entry today. But the immigration authorities’ consideration of all relevant circumstances for the purpose of evaluating good character suggests that any adverse consequences will flow from the nature of the offending, rather than the conviction itself. I do not consider the Judge erred in assessing the consequences of conviction.

17     Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011 at [14].

The proportionality analysis

[43]   The assessment of proportionality requires the consequences of a conviction to be considered in context and measured against the gravity of the offending. The consequences of a conviction must clearly outweigh the gravity of the offending for a discharge to be granted; it cannot be a finely balanced matter.18

[44]   The entry of a conviction for burglary may make it harder for Mr Wanoa to gain entry into Australia in the future. But just how much harder is a matter of speculation. And, on the materials before the Court, it seems likely that any hurdles to Mr Wanoa’s travel plans will arise from the nature of the offending, rather than the conviction. In those circumstances, it cannot be said that the consequences of a conviction are out of all proportion to the gravity of the office. I do not consider the Judge erred in the proportionality assessment, and the appeal must be dismissed.

Result

[45]The appeal is dismissed

Edwards J

18     See Sarandovs v Police [2014] NZHC 926 at [29].