BLAKELOCK v NEW ZEALAND POLICE [2019] NZHC 2487

BLAKELOCK v NEW ZEALAND POLICE [2019] NZHC 2487 [1 October 2019]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2019-409-000100[2019] NZHC 2487BETWEEN ALFONSO LOUIS BLAKELOCKAppellantAND NEW ZEALAND POLICEDefendantHearing: 26 September 2019Appearances: B Shamy and K Gray for AppellantJ H Whitcombe for RespondentJudgment: 1 October 2019JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 1 October 2019 at 3.00 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate 1 October 2019Introduction[1] Alfonso Blakelock, the appellant, pleaded guilty to a charge of assault withintent to injure. Judge Couch refused to grant him a discharge without conviction,1 andinstead sentenced him to 150 hours' community work and 12 months' supervision.21 Police v Blakelock [2019] NZDC 9978.2 Police v Blakelock [2019] NZDC 13805.[2] The appellant appeals the refusal to grant a discharge without conviction onthe grounds that the Judge erred in his interpretation of the Immigration Act 2009 whendetermining the consequences of conviction, and that the circumstances warranted adecision to discharge him without conviction.Facts[3] In the early morning of 16 November 2018, the appellant was working as asecurity guard at the strip club, Calendar Girls. He asked the victim and an associateof the victim to leave the premises, and escorted them to the top of the flight of stairs.The victim was moving slowly and grabbed onto the stair handrail. The appellantpunched the victim once in the face then pushed him down the stairs. He followed thevictim to a small landing, kneed him in the chest, punched him in the face, and thenpushed him into a wall. He punched the victim twice more in the body then was brieflyrestrained by the victim's associate. The victim grabbed the appellant around thewaist, and the appellant threw him halfway down the second set of stairs. He walkeddown and pushed the victim to the bottom of the stairs with his foot. The appellantpunched the victim once more and picked him up before being restrained by anotherstaff member.[4] The victim suffered cuts and bruising to his face and chest from the assault aswell as headaches and dizziness. In explanation, the appellant stated he had beenhaving a bad day and that the victim and his associate just kept going.District Court decision[5] Judge Couch assessed the gravity of the offending as moderately serious. Theassault was prolonged, it involved repeated blows including to the victim's head, andit appeared the appellant would have continued to assault the victim had he not beeneventually restrained. The Judge did not consider provocation was a mitigating factor.He took into account the appellant's circumstances, namely that shortly before theincident the appellant's grandfather had been diagnosed with cancer and the appellanthad gone through a relationship break up, but did not accept that worry about theseissues constituted a significant mitigating factor either. Judge Couch did accept asmitigating factors the appellant's otherwise good character, prompt guilty pleas andvoluntary security work following the 15 March attacks.[6] The Judge then turned to the consequences of conviction. The appellantsubmitted that he could lose his statutory certificate of approval as a security guardand subsequently his employment, and also that he may be deported. Judge Couchfound that the appellant did not fall within s 161(1) of the Immigration Act, so therewas no risk of him being deported if convicted. He did consider there was a very realprospect that the appellant's certificate of approval would be cancelled, but that it wasnot inevitable, and, in any event, the appellant had other skills as a tiler andsteelworker.[7] In these circumstances, even assuming the appellant would have his securityguard certificate revoked, the Judge was not satisfied that that would be a consequenceout of all proportion to the gravity of the offending. The application was thereforedeclined.The legal test for a discharge without conviction[8] Section 106 of the Sentencing Act 2002 permits a Court to discharge anoffender without conviction. Section 107 provides that a Court must not do so unlesssatisfied that the direct and indirect consequences of a conviction would be out of allproportion to the gravity of the offence.[9] The Court of Appeal has outlined the approach for determining suchapplications:3(a) first, consider all the aggravating and mitigating factors relevant to theoffending and the offender to assess the gravity of the offending;(b) second, identify the direct and indirect consequence of the convictionfor the offender; and3 Z v R [2012] NZCA 599, [2013] NZAR 142 at [27].(c) third, consider whether those consequences are out of all proportion tothe gravity of the offence.The Court then must consider whether to exercise its discretion to grant a dischargewithout conviction, although it would be rare for a discharge not to be granted unders 106 where s 107 is satisfied.4Principles on appeal[10] Appeals against the proportionality test under s 107 are by way of rehearing,with the appellate Court making its own assessment of whether the criteria areestablished.5 If a discharge without conviction should have been granted, then therewill have been a material error by the sentencing Judge, or a miscarriage of justice willhave occurred for any other reason, and so the appeal against conviction must beallowed.6SubmissionsAppellant's submissions[11] Mr Shamy, for the appellant, submits that the Judge misdirected himself as tothe application of s 161 Immigration Act, which provides, relevantly:(1) A residence class visa holder is liable for deportation if he or she isconvicted, in New Zealand or elsewhere,—(b) of an offence for which the court has the power to imposeimprisonment for a term of 2 years or more, if the offence wascommitted not later than 5 years after the person first held aresidence class visa;[12] The appellant obtained residency in New Zealand on 9 April 2014, and theoffending occurred on 16 November 2018, bringing it within the five year periodenvisaged by s 161(1)(b). Mr Shamy submits that the Judge erroneously considered4 Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [13].5 H v R [2012] NZCA 198 at [35]-[36].6 Criminal Procedure Act 2011, s 232(2)(b) or (c); and Jackson v R [2016] NZCA 627 at [12].whether the appellant's sentencing occurred within the five year period, when subs (b)in fact relates to the date of the offending.[13] Mr Shamy accepts that the appellant's offending was properly assessed as ofmoderate gravity, but maintains that the fact he will be liable for deportation for thenext 10 years and could, in fact, be deported, is a very serious consequence.7 Addedto this is the potential loss of his employment as a security guard, which was the basisfor a discharge without conviction in Phipps v Police.8[14] Mr Shamy submits that these consequences of conviction are out of allproportion to the gravity of the offending, and a discharge without conviction shouldbe ordered.Respondent's submissions[15] Mr Whitcombe, for the respondent, accepts that the Judge erred in hisapplication of the Immigration Act, and that the appellant will be liable for deportationif convicted. He submits, however, that this consequence is still not out of allproportion to the gravity of the offending. Mr Whitcombe refers to Zhao v Police, inwhich Andrews J considered the Court should not "intervene to try and impose theirperception of what the right immigration consequences should be", especially giventhere is an opportunity to appeal against deportation and to apply to the Ministry tocancel and suspend a deportation notice.9 The Court made similar comments inGeorge v Police.10 Mr Whitcombe submits that it is far from certain that the appellantwill be deported, and that it is not out of all proportion for him to be subject to thescrutiny of Immigration New Zealand.[16] In regard to the appellant's potential loss of his security licence, Mr Whitcombesubmits that as the offending occurred during the course of his employment as asecurity guard, it is appropriate for the Private Security Personnel Licensing Authorityto make a determination as to his suitability to continue to work in that field.7 Immigration Act 2009, s 167.8 Phipps v Police [2015] NZHC 614.9 Zhao v Police [2014] NZHC 3121 at [23], citing Zhang v Ministry of Economic Development HCAuckland CRI-2010-404-453, 17 March 2011 at [14].10 George v Police [2014] NZHC 1725 at [46].[17] He contends the appellant has not shown that consequences of a conviction areout of all proportion to the gravity of the offence, and so the appeal should bedismissed.Analysis[18] No issue is taken with the Judge's assessment of the gravity of the offending,and I agree that the offending can be classed as moderately serious. Even taking intoaccount all the circumstances canvassed by Mr Shamy, including the particularlytrying circumstances for Mr Blakelock when he was called in to work that night, thedegree of provocation from the two patrons involved, and Mr Blakelock's remorse andefforts to address his offending, the gravity of the offending cannot be reduced to low.[19] I accept that the risk of the appellant having his security guard certificaterevoked is not a sufficiently severe consequence, particularly given his otheremployment options, to reach the statutory threshold. What is in issue is whether therisk of being deported, which is an additional factor not taken into account by theDistrict Court Judge, elevates the consequences of the offending to the point wherethey can be seen as out of all proportion to the gravity of the offending.[20] Under the Immigration Act, Mr Blakelock is automatically liable fordeportation on the commission of this offence. This liability for deportation lasts fora period of 10 years.11 If it is intended to execute the deportation of the person, adeportation liability notice must be served on that person pursuant to s 170.[21] Because Mr Blakelock's liability arises under s 161, his only right of appeal ifa deportation liability notice is served would be on humanitarian grounds under s 206.The statutory threshold for allowing such an appeal is very high. It can only beallowed where the Tribunal is satisfied that there are exceptional circumstances of ahumanitarian nature that would make it unjust or unduly harsh for the appellant to bedeported from New Zealand, and that it would not, in all the circumstances, be contraryto the public interest to allow the appellant to remain in New Zealand. Thus, an appealagainst deportation will only succeed in limited circumstances.11 Section 167(1).[22] However, it is clear that becoming liable for deportation does not automaticallymean a deportation liable notice will be issued and, even if it is, the Minister has adiscretion to, by written notice, suspend a residence class visa holder's liability fordeportation for a period not exceeding five years, subject to the visa holder complyingwith any conditions stated in the notice.[23] Both counsel have cited authority regarding the courts' approach to dischargewithout conviction where deportation is a possible consequence of conviction.Mr Whitcombe points out that the courts have been unwilling, in a number of cases,to usurp the function of the appropriate immigration authorities.12 However,Mr Shamy responds by citing Carroll v Police, a recent decision where Gendall Jdistinguished those cases because they related to people seeking visas or permits, notpeople at risk of losing an established residency status.13 In that case, Gendall J agreedwith the decision in Jeon v Police which found that there will be some cases where thes 106 discretion should be exercised by the Court without leaving the determinationto the Minister of Immigration.14[24] In Carroll v Police, Mr Carroll sought a discharge without conviction afterpunching a security guard at a bar in the face with a closed fist. On appeal he reliednot just on the offending being a temporary lapse of judgment from a person with anotherwise unblemished record, and who paid significant reparation to the victim, buton the fact that he was subsequently notified that he was liable to be deported under s161(1)(i)(a)(iii) of the Immigration Act 2009. The deportation notice was suspendedfor five years on the condition that it would only be pursued if he were to commitanother offence in the meantime. However, in that case, there was an acknowledgedrisk that Mr Carroll's business, in which he employed 19 people, put him at risk ofprosecution under the Land Transport Act 1998 for acts or omissions of his company'semployees.12 See Zhao v Police, above n 10; Zhang v Ministry of Economic Development, above n 10; Georgev Police, above n 11; R v Foox [2000] 1 NZLR 641, (1999) 17 CRNZ 216 (CA); Liang v PoliceHC Wellington AP38/02, 16 April 2003; Steventon v Police HC Auckland A108/01, 2 November2001; and Yalomatua v Police [2013] NZHC 530 at [28].13 Carroll v Police [2018] NZHC 2930.14 Jeon v Police [2014] NZHC 66 at [20].[25] The Court held that the risk of deportation was not just a possibility as he hadreceived a deportation liability notice, albeit suspended for five years, whereas theoffending was a single punch. The Court found that the "present threat of deportationin this case is out of all proportion to Mr Carroll's offending".[26] Mr Blakelock's position is more speculative. He has crossed the threshold forliability for deportation, but he has not been served with a deportation liability notice.If he is, there seems no reason for him to be treated differently from Mr Carroll wheredeportation would only follow on a further conviction. There is nothing to suggest heis at an enhanced risk of conviction, as was the case in Carroll, that warrants the Courtintervening to grant a discharge without conviction.[27] Thus, while I accept the Court may intervene to pre-empt immigrationdecisions by granting a discharge without conviction, I do not consider this is a casewhere that is appropriate. The appellant's offending was violent and not low level interms of its overall gravity. While I accept that the impact of having the risk ofdeportation hanging over the appellant for up to 10 years is a substantial consequence,I do not consider it is out of all proportion to the gravity of the offence. I also do notconsider the addition of his potential loss of his security guard's licence adds enoughto bring the consequences out of all proportion to the gravity of the offending.Conclusion[28] The Judge erred in his application of the Immigration Act. A consequence ofconviction is that the appellant will become liable for deportation. However, I do notconsider that immediate deportation is an obvious consequence. I see his situation assimilar to that in Carroll, where he is likely to be deported only if there is furtheroffending. That is a proper and reasonable approach. I am unable to see that theconsequences of conviction are out of all proportion to the gravity of the offence.[29] The appeal is therefore dismissed.Solicitors:Public Defence Service, ChristchurchRaymond Donnelly & Co., Christchurch