PIO v POLICE [2021] NZHC 2248

PIO v POLICE [2021] NZHC 2248 [30 August 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2021-404-292[2021] NZHC 2248BETWEEN AUKUSO PIOAppellantAND NEW ZEALAND POLICERespondentHearing: On the papersCounsel: P K Hamlin and A J Gordon for AppellantF E Gourlay for RespondentJudgment: 30 August 2021JUDGMENT OF WHATA JThis judgment was delivered by me on 30 August 2021 at 1.00 pm.Registrar/Deputy RegistrarDate: .Solicitors: Meredith Connell, Auckland[1] Aukuso Pio appeals against conviction and sentence on one charge of assaultwith intent to injure.1 He was convicted and sentenced to three months' communitydetention and ten months' supervision.2 His appeal was filed out of time, but theCrown takes no issue with that. I grant leave to file out of time accordingly.[2] The substantive matter can also be dealt with succinctly. Mr Pio pleaded guiltynot realising that his conviction could trigger his deportation from New Zealand. Hedid not receive legal advice in respect of this important fact. It is apparent from theavailable evidence that had Mr Pio been given the relevant advice, he would not havepleaded guilty without advising the Court of his intention to apply for dischargewithout conviction.3[3] Ms Gourlay, for the Crown, agrees deportation is a relevant matter going to theentry of the conviction and the sentencing Judge was not given the opportunity toconsider a s 106 application. On that basis, the Crown does not oppose the appealagainst conviction, and submits that the matter be sent back to the District Court forMr Pio to confirm his guilty plea and apply for a discharge without conviction. Analternative approach is to allow the appeal and consider an application for dischargewithout conviction pursuant to s 106 in this Court. But Mr Hamlin, for Mr Pio, agreedthat is problematic insofar as this Court would still be acting in its capacity as the firstappeal Court, rather than a first instance Court. This, among other things, hasimplications for rights of appeal. Mr Hamlin was therefore happy for the matter to bereferred back to the District Court.[4] Given the consensus reached about the proper outcome, and in view of the riskof deportation, I am content to allow the appeal, quash the conviction and refer thematter back to the District Court for reconsideration. This approach is supported byauthority dealing with the entry of guilty plea on a mistaken or misinformed basis.4 InWhichman v R, the Court of Appeal identified the following thresholds apply to an1 Crimes Act 1961, s 193. Maximum penalty three years' imprisonment.2 Police v Aukuso Pio [2020] NZDC 27539.3 Sentencing Act 2002, ss 106 and 107.4 Whichman v R [2018] NZCA 519 at [38].appeal based on trial counsel error in advising as to sentence, all of which must besatisfied before a Court should vacate a guilty plea and quash the resulting conviction:5(a) first, the advice given was erroneous;(b) secondly, there is or was a genuine prospect of acquittal at trial had theplea not been entered; and(c) thirdly, there is credible evidence that but for the erroneous advice, theguilty plea would not have been entered.That Court also noted that the appellate court should "not overanalyse the merits ofavailable defences" as this "risks eroding the essential responsibility of a first appealcourt under s 232(4) of the Criminal Procedure Act 2011 to concern itself with whetherthe error resulted in a miscarriage of justice because it 'created a real risk that theoutcome of the trial was affected'."6[5] While this is not a case of erroneous advice, it is a clear case of a guilty pleagiven and conviction entered on an uninformed basis and it is common ground that therisk of deportation is a relevant consideration for the purpose of an application fordischarge without conviction. The process has gone wrong, and accordingly theproper outcome is to allow the appeal. Usually the guilty plea is vacated at the sametime as a conviction is quashed. Mr Hamlin confirms, however, Mr Pio does not seekto have his plea vacated. Rather, Mr Pio will simply be making an application unders 106 of the Sentencing Act in the District Court.[6] On the basis of the foregoing, I allow the appeal and refer the matter back tothe District Court for purpose of enabling Mr Pio to apply for discharge withoutconviction.5 Above n 4, at [41].6 At [41].