LIKILIKI v POLICE [2023] NZHC 1428

LIKILIKI v POLICE [2023] NZHC 1428 [9 June 2023]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2022-409-171[2023] NZHC 1428BETWEEN ANTHONY LIKILIKIAppellantAND NEW ZEALAND POLICERespondentHearing: 27 April 2023Appearances: H L Beaven and O K Jarvis for the AppellantG E R Alloway for the RespondentJudgment: 9 June 2023JUDGMENT OF HARLAND JIntroduction[1] Anthony Likiliki appeals the decision of Judge Zohrab dismissing hisapplication for discharge without conviction1 following his plea of guilty to a chargeof assault with intent to injure 2 where the victim was his former partner. He says thatthe Judge was wrong to dismiss his application because he will likely face deportationto Tonga and this, he says, is a consequence of the conviction out of all proportion tothe gravity of his offending.3[2] Appeals against a refusal to grant a discharge without conviction proceed byway of rehearing.4 That means this Court, on appeal, must look at the matter afresh.1 New Zealand Police v Anthony Likiliki [2022] NZDC 19385.2 Crimes Act 1961, s 193; maximum penalty three years' imprisonment.3 Sentencing Act 2002, ss106 and 107.4 H v R [2012] NZCA 198 at [35]-[36].If it concludes that a discharge without conviction should have been granted, theappeal must be allowed.5[3] I have decided to grant the appeal. This Judgment sets out my reasons fordoing so.Gravity of the offence6[4] Mr Likiliki is Tongan and the eldest of five children. He and his family movedto New Zealand in 2019 under the Pacific Access Category Resident Visa programme,which operates by way of ballot. The Likiliki family had registered for thisprogramme for almost 10 years before receiving an opportunity to apply for NewZealand residency, following which they completed their compulsory two year staybefore being eligible to apply for residency. Mr Likiliki and his family members arenow in receipt of resident visas. Mr Likiliki would have been either 18 or 19 years ofage when the family moved to New Zealand.[5] Mr Likiliki completed his education in Tonga. It was a great achievement forhis family that he was able to do so at what the s 27 report writer said is the top schoolin Tonga. He additionally represented his country in football between the ages of 15and 18.[6] In 2019, Mr Likiliki moved from Auckland, where he had been living with hisfamily, to Christchurch because he had been invited to play for a football team atpremier level and because of his relationship with the victim of his offending. Itappears that Mr Likiliki and the victim had been in a relationship since they were 18years of age. While in Christchurch, in addition to playing football, he worked part-time and started studying to become a pilot.[7] The month prior to his offending, Mr Likiliki turned 22 years of age.5 Criminal Procedure Act 2011, s 232(2)(b) or (c); and Jackson v R [2016] NZCA 627 at [12].6 It is settled that "gravity of the offence" in s 107 Sentencing Act takes into account the aggravatingand mitigating circumstances of the offending and offender. Z v R [2012] NZCA 599.[8] On 21 January 2022, Mr Likiliki and his partner had an argument. Theargument became physical, with Mr Likiliki slapping the victim forcefully five timeson the face, with a minute or so gap between each slap. The victim lost consciousnessfor about ten seconds after the fifth slap. Mr Likiliki then pushed her down theapartment stairs. It was however submitted that this happened because the victim hadblocked him when he was trying to leave, by holding on to his bag and clothes. Theinference from this is that the push was a response to the situation, but the consequencewas not deliberately intended or necessarily the reason for the push.[9] The victim suffered bruising to both sides of her face, a bloodshot left eye andblurred vision in her right eye. Photographs record this.[10] The pre-sentence report provides more detail about the offending from MrLikiliki's perspective. He said he arrived home after training to find the victim waitingfor him. She questioned where he had been, and he responded by asking her to leave.An argument developed when the victim refused. It escalated inside the residence andthe assault occurred. After the victim fell down the stairs, Mr Likiliki said he went tohelp her, and both then went to bed. He said he was woken by the victim in the earlyhours of the morning to say she was leaving. He told the report writer that he thenwent about his usual routine and dismissed what had happened, although he said itconfirmed to him why he had previously terminated the relationship.[11] In her victim impact statement, the day after the assault, the victim said shehad been fearful of Mr Likiliki during their relationship and referred to other occasionswhen she said she had been hurt by him. She said she thought he had anger issueswhich he took out on her. She said she did not want to be in a relationship with himanymore.[12] Mr Likiliki initially entered a not guilty plea to the charge. Shortly after hewas charged, he was stood down from his football club when it became aware of hisoffending. Mr Likiliki then moved back to Auckland to live with his parents. Hestarted counselling very shortly after this and on 16 May 2022 he then changed hisplea to one of guilty.[13] A restorative justice meeting was held between the two Tongan families on 23July 2022. It was attended by Mr Likiliki, the victim and both their fathers. It isapparent from the notes of the meeting that this process was meaningful to allparticipants. Mr Likiliki apologised for the hurt he had caused to the victim and herfamily, and his father also offered an apology to the victim's family. The apologieswere accepted by the victim and her father, who were pleased that Mr Likiliki hadaccepted responsibility for the hurt he had caused and that he had sought help throughcounselling. The victim acknowledged Mr Likiliki's talents and said she did not thinkjail would help him, offering no additional views on sentencing.[14] Mr Likiliki has one previous conviction of driving with excess breath alcoholfor offending on 29 December 2019 which occurred 10 days after his 20th birthday.He received a fine and was disqualified from driving for six months.[15] At sentencing, as well as the usual material, the Judge was provided with a s27 Sentencing Act 2002 cultural report (s 27 report), various references, a pre-sentencereport and an affidavit from Mr Laurent an immigration lawyer.[16] The pre-sentence report writer noted that Mr Likiliki had expressed a high levelof remorse for his actions and recommended a sentence of supervision with a specialcondition to attend a living without violence programme, noting that Mr Likiliki wasalready attending and privately funding intimacy/relationship counselling.[17] The s 27 report provided helpful material about Mr Likiliki's upbringing inTonga. Information was obtained from Mr Likiliki as well as from him parents. Hisparents were young parents who had experienced some success themselves beforehaving a family. Before children, they described their relationship as dysfunctional,involving alcohol, parties and arguments. After Mr Likiliki was born, they lived withhis father's family, but his father's alcohol consumption did not abate and there werefights. Mr Likiliki and his mother were ostracised by the family, with Mr Likilikibeing a particular target of abuse. Mr Likiliki's mother was physically abused onoccasion.[18] Money was a problem. However, Mr Likiliki's parents recognised thateducation was the future hope for their children and, to their credit, they decided to tryto work through their personal problems for the sake of their children. A decision wasmade for the father to travel to Australia to work as a seasonal fruit picker and theyregistered for the Pacific Access Category Resident Visa programme to come to NewZealand. However, due to lack of money, the family had no choice but to remain livingwith the father's family.[19] The abuse by the father's family towards Mr Likiliki's mother, Mr Likiliki andthe other children of the couple continued. According to his mother, the children weretreated like slaves, being made to do everything by everyone. They were verballyabused daily. Mr Likiliki felt as if he was blamed for everything, including things forwhich he was not responsible, a position confirmed to the s 27 report writer by hisparents, who said that, despite this, Mr Likiliki did not retaliate either verbally or inany other way.[20] The only people Mr Likiliki considered were kind to him, were two older malecousins. They supported him, defended him against other family members andencouraged him to play football. Tragically both cousins committed suicide, one in2017 and the other in 2018. Mr Likiliki's parents were very worried about him andhow he reacted to these events - justifiably so because of what I have read in the report.[21] Against this background and fortunately, his parents were successful in theballot under the visa scheme referred to above. However, arriving in New Zealand,the family lived with other extended family members, in very crowded circumstancesin South Auckland. The family of seven all lived in one room until some months laterwhen they were provided with a Kāinga Ora home.[22] Since then, Mr Likiliki's mother has trained as a healthcare worker. She workssix days a week and is the income earner for the family, while his father takes care ofthe younger children and domestic duties.[23] Despite their constrained financial situation, Mr Likiliki's parents organisedfor his mother to travel to Christchurch to make a cultural apology to the victim'sfamily, which the victim's family agreed to. However, upon arriving in Christchurch,the victim's family decided not to meet with her, contrary to their earlier stance. Sincethen, an apology has been given via the restorative justice process described above.[24] The Judge referred to the nature of the charge, the maximum penalty providedby law and what occurred. He found the five slaps to the head/ face area with a minutein between each and a temporary loss of consciousness to be significant because theywere "considered applications of force" rather than "a simple spontaneous loss ofcontrol".7 The push down the stairs was also serious because it followed the slaps and,as he noted, such an action could result in death.8[25] The Judge treated Mr Likiliki as a first-time offender because his previousconviction was not for violent offending. He also referred to Mr Likiliki's age, hisprevious good character and remorse – "to a degree";9 the latter because text messagessent shortly after the event did not reflect remorse. However overall, Mr Likiliki'sremorse for the offending was accepted by the Judge as genuine. The Judge alsoreferred to his attendance at the restorative justice conference, his plea of guilty, thefact he had undertaken counselling and his willingness to pay reparation even thoughhe was a student without immediate access to funds. With reference to the s 27 report,the Judge accepted Mr Likiliki's background may have normalised, and I infer role-modelled, dysfunctional and violent relationships. All these he considered weremitigating factors to be considered when assessing the gravity of the offending.[26] The Judge found the offending to be at the "top end of moderately serious" butdowngraded this assessment to the "bottom end of moderate offending" after factoringin the above mitigating considerations.[27] I agree with the Judge's characterisation of the gravity of the offending.7 Likiliki, above n 1, at [16]8 At [17]9 At [20]Consequences of conviction[28] The consequences of conviction advanced by counsel for Mr Likiliki in theDistrict Court were the impact a conviction might have on his football career, hisaviation career and the impact it would have on his immigration status as a resident.[29] Mr Likiliki's standdown from his football club was not considered to be afactor of "any real significance" by the Judge.10 The Judge also noted that a convictionwould not be determinative for the purposes of the Civil Aviation Authority'sassessment as to whether Mr Likiliki is a fit and proper person in relation to theirstandards. I agree with this assessment. However, after referring to Mr Laurent'saffidavit, the Judge accepted there was a greater than real and appreciable risk that MrLikiliki would be deported to Tonga if convicted.[30] The Judge noted the variance in the higher courts' decisions about howimmigration issues should be treated in an application for a discharge withoutconviction. He referred to Zhang v Ministry of Economic Development, where AsherJ said, while there is "nothing that requires the courts to intervene to try and imposetheir perception of what the right immigration consequences should be", a court'sassessment of culpability may assist those authorities, and "there will always beoccasions where in a finely balanced case a discharge may be warranted on these typesof grounds".11[31] The Judge also referred to the approach taken in Singh v R, where the Courtfound that the application for discharge should be granted because not only was therea real and appreciable risk of deportation but, even if it was avoided, Mr Singh's familywould be subjected to protracted stress, uncertainty, and financial burden.12[32] Ultimately, the Judge did not consider that the possibility of deportation wasout of all proportion to the gravity of the offending and determined that theimmigration authorities were the appropriate bodies to resolve the issue rather than the10 Likiliki, above n 1, at [29].11 At [36] citing Zhang v Ministry of Economic Development HC Auckland, 17/3/2011, CRI-2020-404-453.12 Singh v R [2020] NZHC 491.courts. The impact a conviction will have on Mr Likiliki's immigration status wasoutlined in Mr Laurent's affidavit. This was before the District Court Judge, but notreferred to in any depth by him in his Judgment. Mr Likiliki was convicted andordered to pay $1,500 to the victim as emotional harm reparation.Immigration status[33] Mr Laurent has specialised in the practice of immigration law for severaldecades and has provided an expert opinion by way of affidavit for a number of similarapplications, mostly in the District Court, but his evidence was cited with approval inRahim v R, referred to below at [55].13[34] Mr Laurent outlined that Mr Likiliki obtained residence on 5 August 2019under the Pacific Access Category. He noted that Mr Likiliki was included in hisfamily's application as the eldest of five children.[35] Mr Laurent's affidavit addresses Mr Likiliki's liability for deportation as aresident, his chances of success in suspending or cancelling deportation liability andhis chances of success in an appeal against deportation.[36] Mr Laurent explained that Mr Likiliki's liability for deportation arises becausehe has two offences that engage s 161(1) of the Immigration Act 2009. This sectionprovides:161 Deportation liability of residence class visa holder convicted ofcriminal offence(1) A residence class visa holder is liable for deportation if he or she isconvicted, in New Zealand or elsewhere,—(a) of an offence for which the court has the power to imposeimprisonment for a term of 3 months or more if the offence wascommitted at any time—(i) when the person was unlawfully in New Zealand; or(ii) when the person held a temporary entry class visa; or(iii) not later than 2 years after the person first held a residence classvisa; or13 Rahim v R [2018] NZCA 182 at [25]-[30].(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; [37] Mr Laurent explained that Mr Likiliki's liability arises because his prior drinkdriving offence was committed within two years of the initial grant of residence (s161(1)(a)(iii)) and because his current offending involves an offence which carries amaximum penalty of more than two years' imprisonment and was committed withinthe five years of the grant of residence (s 161(1)(b)).[38] Mr Laurent further explained that the trigger point is the date of commissionof the offence, not the date of conviction or sentencing and that liability for deportationis activated automatically if a person is convicted of an offence for which the Courthas the power to impose imprisonment for three months or two years or morerespectively.[39] Further, he outlined that, under s 167(1) of the Act, once the fact of convictionis established, residence class visa holders remain liable for deportation for a periodof 10 years following the conviction.[40] In Mr Laurent's opinion, a conviction for Mr Likiliki will almost inevitablyresult in deportation action of some kind because of the information sharing systemestablished between Immigration New Zealand and the Police. Having said that, MrLaurent explained that it would be difficult to predict when the process of deportationwould be actioned by Immigration New Zealand. But, in his opinion, the commissionof an offence involving violence would be more likely to attract its attention so, in hisview, compliance action is certain to occur eventually.[41] Next, Mr Laurent outlined the manner in which Immigration New Zealandactions a prospective deportation. Currently, prior to serving a deportation liabilitynotice, Immigration New Zealand notifies a potential deportee of their liability, invitesa response on the papers setting out reasons why the person should not be deportedand determines thereafter whether to either:(a) cancel liability altogether; or(b) serve a deportation liability notice but simultaneously suspend liability fora period (often two to five years) on the condition that the person does notoffend in any other way; or(c) serve a deportation liability notice outright.[42] Mr Laurent's experience is that the suspension of deportation liability canusually be secured for someone with a drink driving offence which means that, at theend of the suspension period and upon application, deportation liability is cancelledentirely, as long as the person concerned has maintained a clear criminal record in themeantime. However, he said the same approach did not apply for violence offences.While acknowledging that his firm had secured a two-year suspension for a clientconvicted of threatening to kill in the context of a strong family nexus to New Zealandincluding children, there was another situation where a client convicted of commonassault and commission of an indecent act, despite having lived in New Zealand forwell over a decade, was issued with a deportation liability notice.[43] Although acknowledging there would be some factors that would weigh in hisfavour, including the fact Mr Likiliki's entire family have settled in New Zealand, thenature of the offending and the fact he has only lived here for about three years wouldcount against him. In Mr Laurent's opinion, it would be more likely than not that MrLikiliki would fail to get a suspension of deportation liability if convicted. On theother hand, if he was discharged without conviction, Mr Laurent was confident that hecould get deportation liability suspended and ultimately cancelled if he did notreoffend.[44] Once a deportation liability notice is served, Mr Likiliki would have a right ofappeal on humanitarian grounds under s 206 of the Act to the Immigration andProtection Tribunal. Mr Laurent explained that the test that would be applied to MrLikiliki under s 207 of the Act, whether he can exhibit "exceptional humanitariancircumstances" that would make it unjust or unduly harsh for him to be deported. MrLaurent's opinion was that Mr Likiliki's circumstances would be highly unlikely to beviewed as exceptional. As well, Mr Laurent's opinion was that requiring him to returnto Tonga would not be seen as unduly harsh because his family could visit him. MrLaurent conceded that the second part of the test on appeal, namely, whether it wouldnot be contrary to the public interest to allow Mr Likiliki to remain in New Zealand,would likely be met by him.[45] In summary, Mr Laurent considered Mr Likiliki's chances of success on appealwould be low.Additional information provided on appeal[46] Prior to the hearing, Mr Likiliki's mother sought to file a further affidavit.There was no opposition to the affidavit being submitted and leave was granted for itto be admitted as evidence on the appeal.[47] Mrs Likiliki's affidavit confirmed that, since the family left Tonga, their liveshave changed for the better. She referred to the hours she works as a caregiver andher husband's significant role in caring for the family at home. She and her husband'sgoal of securing a better education for their children is evident in the academic resultscurrently achieved by their children.[48] Mrs Likiliki explained how she and her husband responded when they becameaware of their son's offending. Their response was immediate, responsible and caring,both in respect of their son and the victim. She referred to the efforts she and herhusband had made to travel to Christchurch to convey a traditional Tongan apology tothe victim's family which, according to their culture, was the right thing to do, despitethe fact they have limited finances and Mrs Likiliki needed to take time off work. Sherespectfully accepted the victim's family's decision not to meet, even though they hadoriginally said that they would.[49] Mrs Likiliki described this time as the most difficult for her and her family.The offending was reported internationally in the Australian, New Zealand and Tonganmedia and the family was shunned by their own family as well as the small Tongancommunity of friends of family that they had made connections within their short timein New Zealand.[50] She also described the impact this had on her son, which was profound. Shedescribed him not eating or sleeping properly in the months that followed hisoffending. Since he has lived with the family in Auckland and over the past year, MrsLikiliki referred to a gradual and positive change in his and the family's lives. Hecontinues to attend counselling with her husband, he is continuing with his pilotstudies and has begun playing football again.[51] Mrs Likiliki's concern, if her son was deported, would be that he would beliving alone and without support in Tonga. It would also mean he would not haveaccess to professional counselling help he needs.SubmissionsAppellant's submissions[52] Ms Beaven submitted the tangible consequences of immigration were notconsidered by the Judge, which is at odds with Sok v R, where the Court of Appealheld:14The cases sometimes caution against "usurping" or "pre-empting"immigration powers. It is strictly inaccurate to speak of a discharge usurpingthe authority of officials or the Minister or the Tribunal; the Court is exercisingits own jurisdiction under s 106 of the Sentencing Act, and that is so even incases where an offender is not liable to deportation unless a conviction isentered. It is more accurate to say that legislative policy decisions andstatutory powers and processes may not only establish consequences for anoffender but also determine whether those consequences are the product of aconviction and influence the proportionality assessment.[53] Ms Beaven also submitted that the case law establishes that exposure todeportation liability and the immigration authority's deportation process may be aconsequence in itself.15 With reference to Sok, she submitted a key distinction is thatthe appellant in that case had a temporary and not a residency visa, meaning hisresidence was put in jeopardy at the time of the offending and not at the time theconviction was entered, so that a discharge without conviction would not prevent orreduce the risk of immigration consequences.16 Ms Beaven submitted that, because14 Sok v R [2021] NZCA 252 at [50].15 At [51], also see Singh v R, above n 12.16 Sok, above n 14, at [72].the appellant holds a residents visa, the consequence of conviction triggers theimmigration response in such a way that the Court could apply the s 106proportionality test, without usurping the authority of immigration officials. Shecompared this to the situation where a defendant holds a temporary visa when theoffending itself triggers the immigration consequences, in which case she submittedimmigration officials may decide outcomes and be guided by the Court's assessmentof the seriousness of the offending.[54] The gravity of Mr Likiliki's offending was held by the Judge to be at the bottomend of moderate therefore, Ms Beaven submitted, any consequences that are greaterthan moderate arising from the conviction should be amended by this Court.[55] As well, Ms Beaven referred to Rahim v R where the likelihood that theappellant would have to return to Pakistan, with or without his family, as aconsequence of his conviction, was held by the Court to be out of all proportion to theoffending.17 Like the appellant in this case, she submitted that, because Mr Likilikiholds a residents visa, it is the entry of a conviction that will open him up to this risk.[56] I further note the Court in Rahim made extensive reference to Mr Laurent'sexpert witness affidavit in that case stating:18[E]xpert opinion establishes that the real and appreciable risk is significantlyhigher than the mere prospect of deportation; it is that, after Mr Rahim hasundergone all of the statutory processes, a conviction is likely to result in hisbeing required to leave New Zealand.[57] The Court opined that it is not always helpful to pace the consequences on ascale of seriousness. Once they are identified, the question is simply whether they areout of all proportion with the gravity of the offending. Mr Laurent's evidence in thiscase suggests severe consequences for Mr Likiliki.[58] With reference to Truong v R19 and Bolea v R,20 where the Court of Appealassessed deportation safeguards and the statutory processes associated with entry of a17 Rahim v R, above n 13.18 Rahim, above n 13, at [30].19 Truong v R [2023] NZCA 97.20 Bolea v R [2023] NZCA 39 at [44].conviction as being appropriately left to the Minister, Ms Beaven submitted that MrLikiliki's case is distinguishable because he is already subject to deportation liability.She submitted this increased hardship must be accounted for by the Court.[59] If deported at 22 years of age, she submitted Mr Likiliki would be separatedfrom his family, suffer the loss of employment and have his career as a pilot effectivelyhalted, the emotional, financial, and familial consequences of which cannot bequantified. Ms Beaven submitted that these are severe consequences which are out ofall proportion to the gravity of the offending.Respondent's submissions[60] Mr Alloway for the Crown submitted that the Judge was correct in hisassessment of the gravity of the offending, consequences of conviction and his viewof proportionality.[61] The Judge was correct to see the offending as serious, considering it took placein the victim's home, resulted in her being rendered unconscious and the push downthe stairs carried with it the inherent risk of serious injury. Mr Alloway referred toRewita v Police, where a charge of assault with intent to injure resulted in a startingpoint of 18 months' imprisonment was upheld by the High Court on appeal.21 By wayof comparison in this case, he submitted that the defendant held the victim down,slapped her and then subjected her to an unspecified number of punches and kicks.Mr Alloway submitted that the push down the stairs in this case made the offendingeven more serious.[62] The Crown accepts that the gravity of the offending was reduced by MrLikiliki's guilty plea, his participation in restorative justice, the matters referred to inthe s 27 report and his youth, but Mr Alloway submitted that any reduction for remorsemust be tempered by the fact it was expressed after the charge was laid. He submittedthat Mr Likiliki downplayed the seriousness of the offending to the pre-sentence reportwriter and was apathetic towards the victim after the offending.21 Rewita v Police [2013] NZHC 2175.[63] Mr Alloway referred to the following passage from Bolea v R, which hesubmitted summarised the correct approach to immigration related consequences:22a. The decision in Zhu does not assert the absolute proposition that liabilityto deportation or the risk of actual deportation can never be an operativeconsequence justifying a discharge without conviction. The decision in factexpressly acknowledges that it can be an operative consequence on the basisof 'but for' causation reasoning. At the same time the decision also notes thatin other cases it will not justify discharge.b. The latter category is identified as including cases where the Court issatisfied that immigration decision makers will consider the circumstancesthat are said to justify a discharge, including the gravity of the offending (inrelation to which the decision maker has the benefit of the sentencing court'sassessment) and the offender's personal circumstances. In those sorts of cases,the courts 'usually' reason that the outcome is a consequence of the offending,rather than the conviction.c. Although this approach is sometimes justified in the case law on the basisof institutional competence and comity, strictly speaking it is inaccurate tospeak of a discharge without conviction usurping the authority of officials orthe Minister or the Tribunal. The court is exercising its own jurisdiction unders 106 of the Sentencing Act and that is so even in cases where an offender isnot liable to deportation unless a conviction is entered.d. There are cases where the courts have held that the mere exposure to therisk of deportation and the associated processes is in itself a whollydisproportionate response without needing to draw a distinction betweenliability to deportation and the risk that a person will ultimately be deported.Such cases involve offending that was not intrinsically serious or which wasnot a serious example of its kind and in which there were substantialmitigating factors.e. There is another category of case where discharges have been granted onthe basis that deportation is a consequence of conviction because it isconsidered the immigration authorities will not look beyond the fact of theconviction and so fail to consider the circumstances of the offending.[64] Because of Mr Likiliki's 2019 conviction, Mr Alloway submitted Mr Likilikiis already liable for deportation, therefore, the risk of deportation is not a consequenceof this conviction. In any event, he submitted the prospect of deportation is only adisproportionate consequence in cases where offending is not intrinsically serious,unlike the present case. As I will explain below at [81], I do not read Bolea in thesame way.22 Bolea, above n 20, the Crown has paraphrased [41] of the judgment.[65] Mr Alloway also submitted that the argument raised by Mr Laurent in hisaffidavit is hypothetical because it focusses on Mr Likiliki's ability to suspend andcancel his liability to be deported once served with a notice. As Mr Likiliki has notyet been served with a notice, Mr Alloway submitted Mr Likiliki will have anopportunity in the pre-deportation liability notice process to provide written reasonsas to why his liability should be suspended or cancelled. Thus, Mr Alloway submitted,this is a case where immigration officials will also consider the circumstances that aresaid to justify a discharge, including the gravity of the offending and the offender'spersonal circumstances, and so Mr Likiliki's situation falls into the category of casesthat do not justify a discharge as set out in Bolea.[66] Mr Alloway submitted that at its highest, the consequence of conviction is thatthere is a real risk it will be more difficult to suspend liability for deportation, shouldthe immigration authorities take that step. However, because the authorities willconsider the full circumstances of the offending rather than the conviction itself, theconsequence will result from the offending as opposed to simply the conviction.[67] Finally, Mr Alloway highlighted that discharges without conviction aretypically considered in relation to first time offenders who have committed a minorcrime, rather than offenders with short histories of various minor charges.23 Hesubmitted that Mr Likiliki's previous conviction has partially born out theconsequences relied on in the present case in casting doubt on his career as a pilot andpossibly triggering a deportation process.[68] Overall, Mr Alloway submitted that the direct and indirect consequences arenot out of all proportion to the gravity of the offending.Assessment: immigration consequences[69] Consequences of conviction are often left to immigration authorities.24 This isespecially so where the outcomes are difficult to predict and depend on the offendingrather than the fact of conviction.2523 Hudson v Police [2012] NZHC 2769.24 Singh, above n 12, at [14].25 Rahim v R, above n 13, at [29] and [31].[70] In this case however, Ms Beaven is correct that the trigger is the conviction notthe offending because Mr Likiliki holds a resident visa. However, Mr Alloway is alsocorrect because Mr Likiliki's liability for deportation has in fact already been triggeredbecause of his previous conviction for drink driving. None of the cases I was referredto have dealt with this particular scenario.[71] The question for me is whether Mr Alloway's point about the trigger fordeportation already having occurred somehow impacts on the assessment required inthis case. In this regard, Mr Laurent's evidence is critical.[72] Mr Laurent's expert opinion was that, should the conviction remain, MrLikiliki would likely fail the pre-deportation liability notice stage. His chances of anappeal on humanitarian grounds are low and he would have to leave New Zealand.The Crown alternatively submits the risk of deportation is speculative, but do not agreegiven that there is unchallenged expert evidence available to properly assess the riskof that eventuality.[73] Mr Likiliki is liable for deportation because of the 2019 offending andconviction for the present charges would accelerate the deportation process. Shouldhe not be convicted on this charge, and the drink driving conviction was his onlyrelevant offence, Mr Laurent is confident Mr Likiliki's liability would be suspendedfor two years and then cancelled.[74] I have considered Mr Laurent's evidence and rely on it in my conclusions. Ireject the Crown's argument that, because Mr Likiliki's 2019 conviction alreadymakes him liable for deportation, it cannot be considered a consequence of convictionarising from the current offending. For all practical purposes, conviction on thesecharges also triggers his liability for deportation and further would expedite andworsen the prospect of it for Mr Likiliki.[75] Judge Zohrab did not refer in any great detail to Mr Laurent's expert opinion.There was no detailed assessment of the significance of Mr Likiliki's visa status andthe impact that might have on the deportation process, bearing in mind that some ofthe relevant authorities deal with situations where temporary visas rather than residentvisas were relevant to that assessment. In making this observation, I intend nocriticism of the Judge who would have been dealing with this matter in a busy list.[76] As well, the Judge did not refer in any significant detail to how the risk ofdeportation would impact on this young man, taking into account the backgroundreferred to in the s 27 report and the risks for him to be returned to a potentially abusivefamily situation, without the support and protection of his parents. No doubt, this didnot occur because of the Judge's initial view that these matters were moreappropriately dealt with by the immigration authorities.Case law[77] Engaging in case comparisons is of somewhat limited value in cases, such asthis one, where so much depends on the facts. Nonetheless, I have been referred toseveral cases by counsel and note points from the following cases that fortify myconclusion.[78] Mr Alloway cites Hudson v Police in which Duffy J stated that dischargewithout convictions are:26 usually applied to offenders with no criminal history who have committeda minor crime, rather than to offenders who have a short history of committingvarious minor charges.[79] The use of the word "usually" conveys the variance in these cases. In Singh vR, the defendant was charged with male assaults female and assault with intent toinjure, assessed by the Judge as low to moderate level offending.27 The offendingthere would not be considered minor in the way a breath alcohol infringement mightbe. Section 106 cases involving immigration concerns are highly fact specific andinvolve an exercise of discretion by the presiding Judge. Whilst Duffy J was, withrespect, correct that s 106 cases are usually granted for minor offending, there will beand have been cases in which slightly higher-level offending has warranted a dischargewhen regard is had to all relevant circumstances.26 Hudson, above n 23, at [37].27 Singh v R, above n 12, at [33].[80] I note that in Rewita, referred to the Court by Mr Alloway, Panckhurst J deemedthe defendant to be a "mature man who ha[d] an unenviable list of previousconvictions", such as breach of protection order and a "nasty assault and burglary ofhis partner's house".28 The contention that the assault in this case, that involved afurther breach of a protection order, was more serious is debatable. Mr Likiliki hasno history of violent offending and no protection order was in place. The like for likecomparison between cases is not always of great use, but I emphasise the above tonote that Rewita need not have any wide influence on this Court's decision.[81] I refer to Bolea v R, in particular, to [41(d)] cited above at [63]. I do not findin favour of Mr Alloway's submission that liability for deportation will only be adisproportionate consequence where the offending is not intrinsically serious. TheCourt in Bolea noted that the mere exposure to the deportation process has been viewedas, in cases of minor offending, a consequence out of all proportion to the offending.Though Mr Likiliki's offending cannot be considered minor, it has been assessed notfar from that as at the lower end of moderate. Mr Laurent's evidence suggestsconsequences that are severe. I accept Ms Beaven's contention that higher leveloffending can still be outweighed by the consequences if they are deemed to be severe;it is the balancing exercise that is crucial. I do not find the consequences that awaitMr Likiliki, should a conviction be entered, to be in any way proportionate to hisoffending.[82] In refusing a discharge without conviction, the Court stated the case before itwas not a case where there was any reason to believe the immigration authoritieswould not look beyond the defendant's convictions and consider her personalcircumstances and mitigating factors.29 That too was a case where the liability fordeportation rested on conviction.[83] Though a discharge was not granted in Bolea, I note the charge in that casecarried a penalty of ten years' imprisonment30 as opposed to Mr Likiliki's whichcarries a sentence of a maximum of three years' imprisonment. The variance in28 Rewita, above n 21, at [13].29 Bolea, above n 20, at [43].30 The single charge faced by the defendant in Bolea was under s 98A of the Crimes Act.seriousness of offending, as well as the above noted circumstances of Mr Likilikidistinguish this case.[84] Furthermore, the Court in that case was only in receipt of expert evidence asto the defendant's chances of being served a deportation liability notice. The expertevidence in that case did not address prospects of the defendant's success on appeal tothe Tribunal.31 By contrast, this Court has been provided with fulsome submissionsby Mr Laurent to that point. Finally, I accept Ms Beaven's submission that Bolea andTruong are distinguished on the basis that Mr Likiliki is already subject to deportationliability for his previous charge. I take care to note Mr Likiliki is not being awardeda boon for his previous offending. However, the increased risk of deportationpresented by this charge must be accounted for. It serves as a further ground todistinguish this case from others.[85] Having received full submissions and having had the luxury of more time toconsider all these matters, I am persuaded that the immigration consequences, namelythe risk of deportation, for Mr Likiliki is virtually inevitable. It is appropriate, in myview, for these matters to be considered by this Court on the facts of this case ratherthan being left to the immigration authorities.The balancing exercise and result[86] I am persuaded, when all of the matters I have referred to are taken intoaccount, the deportation consequence of a conviction for Mr Likiliki is out of allproportion to the gravity of his offending. For these reasons and in my assessment,Mr Likiliki ought to have been discharged without conviction.[87] Given that the Court, on appeal, is required to consider the matter afresh, myconclusion means that the appeal will be allowed. The conviction is therefore quashed.The appellant is discharged without conviction under s 106 of the Sentencing Act2002.31 Bolea v R, above n 20, at [18].[88] Pursuant to s 106(3)(b)(ii) of the Sentencing Act 2002, I confirm the DistrictCourt's order, under s 32(a)(b), for the payment of $1,500 emotional harm reparationto the victim.____________________Harland JSolicitors:Public Defence Service, ChristchurchCrown Solicitor's Office/Raymond Donnelly & Co., Christchurch.