NARAYAN v NEW ZEALAND POLICE [2020] NZHC 2558

NARAYAN v NEW ZEALAND POLICE [2020] NZHC 2558 [30 September 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-000275[2020] NZHC 2558BETWEEN DAVEND NARAYANAppellantAND NEW ZEALAND POLICERespondentHearing: 28 September 2020Appearances: John Clearwater for the AppellantConrad Purdon for the RespondentJudgment: 30 September 2020JUDGMENT OF MOORE J[Appeal against conviction]This judgment was delivered by me on 30 September 2020 at 12:00 pm.Registrar/ Deputy RegistrarDate:Introduction[1] On 18 February 2020, Community Magistrate P A King, in the District Courtat the North Shore, declined Mr Narayan's application for a discharge withoutconviction on a single charge of driving with excess breath alcohol.1 She convictedhim, ordered a period of disqualification and fined him.[2] Mr Narayan appealed. On 9 June 2020, Judge A-M J Bouchier, in the DistrictCourt at the North Shore, dismissed Mr Narayan's appeal against the decision of theCommunity Magistrate.2[1] Mr Narayan again seeks to challenge the refusal to discharge him withoutconviction. Because bringing a second appeal requires leave pursuant to ss 237 and253 of the Criminal Procedure Act 2011, and no such application had been filed, Iissued a Minute requesting that Mr Narayan address the issue.3 Mr Clearwater, forMr Narayan, filed a memorandum to this effect on 25 September 2020. The Crownopposes leave being granted.[2] This Court must decline leave for a second appeal unless it is satisfied thateither the appeal involves a matter of general or public importance or that amiscarriage of justice may have occurred or may occur unless the appeal is heard.4The threshold is a high one. The Court will be slow to grant leave where successdepends upon the court reversing concurrent findings of fact from the decisionsbelow.5Summary of facts[3] In the evening of Sunday, 11 August 2019, Mr Narayan was driving a vehicleon Red Beach Road, Auckland. At approximately 7:45 pm, Mr Narayan's driving wasnoticed by a member of the public because he was failing to stay within his lane. ThePolice were called. Mr Narayan was seen to pull into the Red Beach Mobil car park1 Police v Narayan DC Auckland CRI-2019-044-002830, 18 February 2020.2 Narayan v Police [2020] NZDC 10525.3 Dated 25 September 2020.4 McAllister v R [2014] NZCA 175; [2014] 2 NZLR 764 at [36].5 Butler v Police [2016] NZCA 27 at [3].where he got out. The Police arrived shortly afterwards and the member of the publicpointed out Mr Narayan, as the driver. Mr Narayan showed signs of recent alcoholintake. Breath test procedures were carried out and Mr Narayan was found to have abreath alcohol level of 973 micrograms of alcohol per litre of breath. In explanation,he said that he was driving to charge his phone and had consumed four or five beers.The Community Magistrate's decision[4] Applying the test for discharges without conviction as set out in ss 106 and 107of the Sentencing Act 2002, the Community Magistrate assessed Mr Narayan'soffending as moderately serious, on the basis that:(a) as stated in the Supreme Court in Alwyn v Police drink driving at anylevel is "dangerous, illegal and socially unacceptable",6 andMr Narayan was almost four times the legal limit;(b) a concerned member of the public reported him because of his driving,which indicates the extreme road safety risk of his driving;(c) he has been assessed as a non-problematic drinker, and has stoppeddrinking all together;(d) he expressed remorse in his affidavit;(e) he was in a stressed state at the time; and(f) he has no previous convictions.[5] As to the consequences of a conviction for Mr Narayan, the CommunityMagistrate noted:(a) shame and embarrassment are a consequence of offending; there wasno risk to his employment; and6 Alwyn v Police [2008] NZSC 113; [2009] 2 NZLR 1.(b) Mr Narayan is on an essential-skills visa; being charged and pleadingguilty means he is captured by s 157(1) of the Immigration Act 2009and thus may be liable for deportation, regardless of a conviction. TheCommunity Magistrate noted the appeal options available to him if hewas to be served a deportation liability notice. She considered aconviction for Mr Narayan was unlikely to reach the serious thresholdpreventing him from staying in New Zealand.[6] The Community Magistrate found that the additional scrutiny of ImmigrationNew Zealand was not out of all proportion to the gravity of the offending. Shedeclined the application for a discharge without conviction, entered a conviction, finedMr Narayan $1,000 and disqualified him from holding or obtaining a driver licencefor a period of seven months.Judge Bouchier's decision[7] The Judge noted the requirements for an appeal and noted that applications fordischarge without conviction in alcohol-related driving cases should always bescrutinised with care. She referred to Waight v Police as a case where extenuatingcircumstances of the offending led to a discharge.7[8] The Judge assessed Mr Narayan's offending as "on the high end of moderatelyserious, verging onto the very serious", given his high level of excess breath alcohol,and the fact his driving faults were noticed by a member of the public.[9] The Judge then assessed the consequences of a conviction for Mr Narayan,including those factors personal to Mr Narayan, those personal to his family and thosepersonal to his employer. She stressed that the consequences for Mr Narayanregarding his liability for deportation can only be decided by Immigration NewZealand. The Judge held that the Court should not interfere with that decision-makingprocess. The Judge further held that a real and appreciable risk that Mr Narayan wouldbe deported had not been made out.7 Waight v Police HC Auckland CRI-2006-404-465, 24 May 2007.[10] The Judge concluded that the consequences of a conviction were not out of allproportion to the gravity of Mr Narayan's offending.Application for leaveDoes the appeal raise an issue of general or public importance?[11] Mr Clearwater submits that the questions of law raised on appeal are asfollows:(a) whether the District Court Judge erred in her assessment of the gravityof the offending;(b) whether the District Court Judge erred in holding that the real andappreciable test had not been made out; and(c) whether the District Court Judge erred in holding that the direct andindirect consequences of a conviction were not out of all proportion tothe gravity of the offence.[12] The Crown submits that there can be no suggestion that Mr Narayan's appealraises an issue of general principle or general importance in the administration of thecriminal law by the Courts.[13] The procedure for discharges without conviction is governed by ss 106 and 107of the Sentencing Act 2002. Under s 107, the Court must carry out the well-knownthree-step test:8(a) assess the gravity of the offence, taking into account all the aggravatingand mitigating factors relating to the offending and offender;98 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16].9 Z (CA447/2012) v R [2012] NZCA 599 at [27].(b) assess the direct and indirect consequences of a conviction, where theCourt is satisfied there is a 'real and appreciable' risk suchconsequences would occur;10 and(c) determine whether those consequences are all out of proportion to thegravity of the offence.[14] If the offender meets the s 107 threshold, the Court may go on to considerwhether or not to exercise its residual discretion to discharge the offender under s 106.However, once the s 107 test is satisfied this will normally result in a discharge.11[15] In the present case, Mr Narayan does not suggest that either the Judge orCommunity Magistrate applied the wrong test. Instead, it is submitted that the Judgeought to have reached different conclusions from applying the law to the facts. Theseissues do not meet the standard of involving a matter of general or public importance;that is, a question which has broad application beyond the circumstances of thisparticular case.12Miscarriage of justice[16] Mr Clearwater also submits that a miscarriage of justice is likely to occur if theappeal is not heard, because the existence of a conviction may influence or affect thelikelihood of deportation, and this would be out of all proportion to the gravity of theoffending because:(a) the mitigating factors present are sufficient to reduce the gravity of theoffending. These mitigating factors include: Mr Narayan's guilty plea,remorse, assessment as a non-problematic drinker and continuedabstinence and his good character, as well as the mitigating factors of10 DC (CA47/13) v R [2013] NZCA 255 at [43].11 R v Hughes, above n 7, at [12].12 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.the offence itself, namely that Mr Narayan was acting in a state of shockat serious family news;(b) although the offending alone can trigger liability for deportation, theevidence from immigration expert Alastair McClymont concedes thatthe likelihood of Mr Narayan being served a deportation liability noticein circumstances where he has been granted a discharge withoutconviction will be possible, maybe even probable. However, with aconviction, the evidence is that there is a real risk Mr Narayan will notbe able to apply for a further visa and will likely not be successful withany appeal against his liability for deportation. A discharge withoutconviction would give the appellant a solid basis for a request to theMinister of Immigration for a Special Direction cancelling anydeportation liability; and(c) the likely consequences that will be faced by third parties, namely theappellant's family and employer. Mr Narayan's wife and son joinedhim in New Zealand in 2019. Evidence from Mr Gibson, Mr Narayan'semployer states that he is a key member of staff and that there is ashortage of people experienced in stainless steel and aluminiumfabrication in New Zealand. It is submitted there is a real likelihoodthat his company will face financial hardship if Mr Narayan is deported.[17] The Crown submits that the Judge made no error that might have, or couldresult in a miscarriage of justice.Did the District Court Judge over-estimate the gravity of the offending?[18] I do not consider that either of the courts below made any identifiable error intheir assessment of the gravity of the offending. Both the Community Magistrate andthe Judge took the mitigating factors personal to Mr Narayan, and the circumstancesthat led him to be driving at that time, into account. They noted the seriousness ofdrink driving, and the further factors that aggravated Mr Narayan' offending.[19] I do not consider there is a risk of a miscarriage of justice occurring on thisground.Did the District Court Judge under-estimate the consequences of the offending?[20] The Judge took into account the likely consequences of Mr Narayan's inabilityto remain in New Zealand, but found that immigration decisions should be left to theimmigration authorities. This is the usual and orthodox practice in the application ofs 107.13 The Courts are traditionally reluctant to usurp the role of immigrationauthorities by pre-empting a deportation decision. As Asher J in Zhang v R put it:14"The case for discharge may not be so strong where the details of the offendingwill be known and closely examined by the relevant authority in any event,than where the query will be only as to prior convictions, for instance in anapplication for professional certification."[21] Rare exceptions may arise where an offender clearly establishes thatdeportation is likely because of the conviction, rather than because of their conduct,and will result in serious harm to their family unit.15[22] I am satisfied these exceptions do not apply here. It is open to Mr Narayan toappeal to the Immigration Protection Tribunal if he becomes liable for deportation.The culpability of his offending is accurately reflected in the charge. Further, the otherconsequences advanced, as to the risks to his family and employer if he is deported,are factors that should be left for consideration by the immigration authorities. Thesefactors were weighed in an orthodox manner in the decisions of the District Court. Ido not find that there is a risk of justice miscarrying if Mr Narayan is not granted asecond appeal.13 Singh v R [2020] NZCA 411 at [14].14 Zhang v Ministry of Economic Development HC Auckland CRI 2010-404-453, 17 March 2011 at[14]; confirmed in Ho v R [2016] NZCA 229.15 Rahim v R [2018] NZCA 182 at [30]—[31].[23] Thus in summary, I am not satisfied that a miscarriage of justice may occurunless the appeal is heard and it follows I refuse leave to appeal.Result[24] The application for leave to bring a second appeal is declined.Moore JSolicitors:Mr Clearwater, AucklandCrown Solicitor, Auckland