SIDHU v NZ POLICE [2021] NZHC 1051

SIDHU v NZ POLICE [2021] NZHC 1051 [11 May 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-000528[2021] NZHC 1051BETWEEN HARCHARAN SINGH SIDHUAppellantAND NEW ZEALAND POLICERespondentHearing: 3 May 2021Appearances: AP Talakai for AppellantLJ Sullivan for RespondentJudgment: 11 May 2021JUDGMENT OF FITZGERALD JThis judgment was delivered by me on 11 May 2021 at 3.30pmRegistrar/Deputy RegistrarDate.Solicitors: Kayes Fletcher Walker, AucklandTo: A Talakai, AucklandIntroduction[1] Harcharan Sidhu pleaded guilty to assault with intent to injure.1 He sought adischarge without conviction under ss 106 and 107 of the Sentencing Act 2002.Judge J C Moses declined the application on 28 November 2018.2 Mr Sidhu nowseeks leave to appeal out of time against that decision, to adduce further evidence onthe appeal (if leave is granted), and substantively appeals (again, assuming leave toappeal out of time is granted).Facts[2] At the time of the offending in March 2018, Mr Sidhu was 28 years old. Hehad been in New Zealand since 2015 on a series of work visas. By March 2018, hehad been married for about one year. The victim of his offending was his wife.[3] On 10 March 2018, the couple were at their home address. There was anargument about whether or not they should go out. Mr Sidhu's wife left the house.Mr Sidhu followed her outside, where he pushed her up against their car and placedboth of his hands around her neck and squeezed it. He continued to squeeze her neckfor about 20 seconds, until a witness yelled that she was calling the Police. He thenreleased his wife.[4] Mr Sidhu pleaded guilty to this offending. I should note at the outset thatdespite pleading guilty to this offending and the summary of facts at the time,Mr Sidhu stated to the writer of the Provision of Advice to Court Report (PAC) Reportat the time of his sentencing that he did not strangle his wife, but merely grabbed herby her collar. He said he pleaded guilty so as to not "waste the court's time".[5] Judge Moses sentenced Mr Sidhu on 28 November 2018. I address the Judge'sdecision in more detail further below. For present purposes, it is sufficient to note thatthe Judge declined Mr Sidhu's application for a discharge without conviction andsentenced Mr Sidhu to 150 hours of community work.1 Crimes Act 1961, s 193. Maximum penalty three years' imprisonment.2 Police v Sidhu [2021] NZDC 27624. The judgment was delivered in 2018 but was notauthenticated, and thus given a formal court citation, until early this year when this appeal waslodged. Nothing turns on this.[6] Following his offending but prior to sentencing, Mr Sidhu applied to renew hiswork visa. On 13 December 2018 (i.e. after his sentencing) Mr Sidhu says he receiveda "potentially prejudicial information" letter from Immigration New Zealand (INZ),in which he was invited to make submissions on whether a waiver of the characterrequirements for his visa ought to be granted. In a decision dated 24 January 2019,INZ declined to renew Mr Sidhu's work visa. The decision stated that the reason fordeclining to grant the visa was because Mr Sidhu did not meet the characterrequirements and that a waiver of those requirements was not appropriate. It appearsfrom the decision that aside from the character requirements, INZ consideredMr Sidhu otherwise met the relevant immigration instructions to be approved for awork visa in New Zealand.[7] Mr Sidhu (and his wife, whose visa is tied to Mr Sidhu's visa) have since takenvarious steps under the immigration legislation to challenge the decision not to extendMr Sidhu's work visa, but to no avail. Legal advice provided to Mr Sidhu and dated23 April 2021 (produced by Mr Sidhu on the present application for leave to appeal)recommended that he appeal Judge Moses' decision to decline to grant him a dischargewithout conviction. Counsel for Mr Sidhu on the present application state that allavenues under the Immigration Act 2009 have been exhausted and that the presentsteps are therefore the only remaining option available to Mr Sidhu.The District Court decision[8] Judge Moses first summarised the offending. The Judge noted that Mr Sidhu'scounsel submitted that the offence was "not violent in nature"3 and at the lower end ofthe scale of culpability. The Judge disagreed. He considered that the offending wasinherently violent and, given that it consisted of strangulation, quite serious. He notedthat twenty seconds is a long time for strangulation. He also referred to various HighCourt decisions on sentences for strangulation, and noted that in almost all of them astarting point of imprisonment had been adopted. The Judge accordingly consideredthe offending in this case to be moderate to serious, but accepted that Mr Sidhu's lack3 At [3].of previous convictions, his steps at rehabilitation and the ongoing support of his wife"moderates the seriousness of the offending somewhat".4[9] The Judge then considered the consequences of a conviction, and in particular,the risk of Mr Sidhu's work visa not being renewed (and thus rendering him, and hiswife, liable to deportation). The Judge referred to trial counsel's submission thatMr Sidhu had at that point been advised by INZ that his work visa would not berenewed if a conviction were entered, though the Judge noted that he did not haveanything to that effect in writing. I interpolate to note that a letter from INZ toMr Sidhu dated 3 July 2018 was attached to Mr Sidhu's affidavit filed in support ofhis application for a discharge without conviction, which stated that INZ had not madea decision on Mr Sidhu's application at that time. The letter stated that in the event ofa conviction, Mr Sidhu would not meet INZ's requirements to be of good character,and invited him to make a submission on why the character requirements should bewaived. I also note that the decision made by INZ in January 2019 (referred to at [6]above) refers to additional INZ letters to Mr Sidhu dated 6 September and 13December 2018, and that those letters had "invited you to make comments or toprovide further information to help us decide whether your circumstances justifywaiving the temporary entry character requirements". It seems unlikely, therefore,that at the time of his sentencing, Mr Sidhu had been advised in writing by INZ thathis application would be declined. It seems more likely that his trial counsel'sreference at sentencing to further correspondence from INZ was in fact a reference toINZ's 6 September 2018 letter.5[10] Returning to the Judge's decision, the Judge referred to Court of Appealauthorities to the effect that the courts should be cautious about making assessmentsabout whether or not someone will be deported or denied a visa as a result of aconviction being entered.6 Accordingly, the Judge concluded that the immigrationconsequences of a conviction should be left to the immigration authorities, and that itwas not for the Judge to "usurp their role in deciding whether or not the defendantmeets the good character test".7 The Judge therefore concluded that the consequences4 At [9].5 That letter has not been produced on the present application or appeal.6 Ho v R [2016] NZCA 229 and Ji v R [2015] NZCA 308 at [49].7 At [14].of the offending were not out of all proportion to the gravity of the offending, anddeclined the application for a discharge without conviction. In terms of the sentence,and as already noted, the Judge stated that the starting point for Mr Sidhu's offendingwould normally have been one of imprisonment, but given the various mitigatingfactors, he would impose a final sentence of 150 hours of community work.Should leave to appeal out of time be granted?[11] Section 248 of the Criminal Procedure Act 2011 specifies that an appeal mustbe filed within 20 working days after the date of the decision appealed against.Subsection (4) of that section provides that the first appeal court can give leave toextend this deadline. Mr Sidhu filed his appeal on 10 December 2020, and thereforealmost two years out of time. This is a significant delay.[12] Mr Sidhu says that his trial counsel did not tell him at the time that he couldappeal Judge Moses' decision to decline his application for a discharge withoutconviction, and that he did not realise the impact a conviction would have on hisimmigration status. Mr Sidhu also says that the very real risk of his visa beingcancelled was present at the time of his sentencing, but the information was notprovided to the Judge, and had the Judge known of that risk, it could well have madea difference to his decision.[13] It is well established that the test for whether leave to appeal out of time oughtto be granted reduces to the reasons for the delay and the merits of the appeal.8 Wherethe appeal is some years out of time, as here, leave will only be granted in exceptionalcases.9[14] I record that I have taken into account in my consideration of whether leaveought to be granted to appeal out of time the further materials Mr Sidhu seeks leave tofile on his appeal. That material comprises an updating affidavit by Mr Sidhu, anupdating affidavit by his wife, an opinion from an immigration lawyer as to the8 Mikus v R [2011] NZCA 298 at [26], citing R v Slavich [2008] NZCA 116 at [14].9 Butcher v R [2015] NZCA 102 at [7]; see too, however, Stewart v R [2011] NZSC 62, [2012] 1NZLR 1, where leave might be granted if the appeal was certain to succeed, even after a long andinexcusable delay.consequences of a conviction on Mr Sidhu's immigration status,10 a 2015 LawTalkarticle about the consequences of conviction for immigration status generally andINZ's policy on character waiver. While not all of the information is fresh, some ofit is, and it can all be described as cogent. For these reasons, I have concluded it is inthe interests of justice to admit this material on the application for leave to appeal outof time.[15] In my view, and while I have some sympathy for the position in whichMr Sidhu (and his wife) now find themselves, I am of the view that the proper andprincipled approach in this case is to decline the application for leave to appeal out oftime.[16] Ultimately, I am not persuaded that the stated reasons for the delay justify whatis a significant delay in lodging an appeal. Mr Sidhu says that he was not aware at thetime that he had a right of appeal. Given Mr Sidhu was legally represented, that wouldseem somewhat unusual, but I proceed on the basis that that is so. Nevertheless, thisalone would not, in my view, justify granting leave to appeal out of time, particularlygiven a significant delay of two years. Even in other statutory contexts involvingsubstantive rights, including the Immigration Act 2009, a lack of knowledge of a rightto appeal or to commence judicial review proceedings is not itself a basis for grantingan extension of time.11[17] I accept, however, the position might be different if the proposed appeal hadclear and strong merits. That leads to the second key factor relevant to whether leaveought to be granted in this case, namely the merits of Mr Sidhu's proposed appeal.[18] As a preliminary point, the present submission made on Mr Sidhu's behalf thathe was not aware at the time of the District Court proceedings what the impact of aconviction on his immigration status could be is incorrect. In his own affidavit swornin support of his application for a discharge without conviction, Mr Sidhu deposed that10 Though I note this does not discuss in any substance the immigration consequences, but rathertraverses the option of appealing against Judge Moses's decision and the prospects of success indoing so.11 See, for example, Bhasin v Immigration and Protection Tribunal [2018] NZHC 644 at [28] andXie v Minister of Immigration HC Auckland CIV-2008-404-2401, 25 July 2008 at [27].if a conviction were entered, he would be deported to India. Judge Moses' decisionalso traversed the potential immigration consequences of not granting a dischargewithout conviction, namely that Mr Sidhu and his wife might not be able to stay inNew Zealand. As noted, however, the Judge considered that properly a matter forimmigration officials.[19] I do not discern any error in the approach taken by the Judge. While Mr Sidhu,both in his discussion with the Probation Officer preparing the PAC Report and on thepresent appeal, suggests that he did not in fact strangle his wife but merely grabbedher by the collar, it is plainly not appropriate for either the District Court or this Courtto go behind the summary of facts to which Mr Sidhu pleaded guilty. That summaryof facts discloses strangulation in a domestic violence context. Squeezing his wife'sneck for some 20 seconds is serious. The summary of facts also records thatMr Sidhu's actions were only interrupted by a witness yelling at him that she wascalling the Police. I therefore do not accept that the Judge erred in his categorisationof the gravity of the offending overall as moderate. And the Judge plainly andcorrectly took into account the various mitigating factors applicable to Mr Sidhu inthat assessment. This ultimately led to the Judge imposing a sentence of communitywork only, rather than anything more significant.[20] I am also satisfied that the Judge took an entirely orthodox approach to hisassessment of the consequences of a conviction. While there is no doubt the courtsare entitled to consider adverse immigration consequences in an application for adischarge without conviction, as the Judge noted, the courts are also hesitant to usurpthe decision-making role of the relevant authorities. As the Court of Appeal in Rahimv R stated:12The reluctance of courts to intervene in the decision-making of specialistbodies such as Immigration New Zealand or, in the employment context,professional disciplinary bodies, is most often evident where the outcomecannot be reasonably predicted. In such cases, the consequence of aconviction will be the risk that the offender's immigration status or ability totravel overseas may change, or that disciplinary action, or some obstacle toqualification or employment, may occur.12 Rahin v R [2018] NZCA 182 at [29].[21] Counsel for the respondent also refers to the Court of Appeal's decision inHo v R as an example of this approach.13 In Ho v R, the Court was provided with anaffidavit from an immigration lawyer stating that if convicted, it was unlikely theappellant would be granted the necessary character waiver for him to obtain a work,study or residence visa. The Court stated:14even if it is unlikely Mr Ho will be able to stay in New Zealand, that doesnot amount to a disproportionate consequence of the convictions. As a foreignnational he has no general right to stay in New Zealand. It is a matter forimmigration services to decide whether to renew his visa, having regard tofactors including the Court's assessment of the gravity of Mr Ho's offending.The Court should not usurp that assessment.[22] As matters stood at the time of Mr Sidhu's sentencing, it was not certain whatimpact a conviction would have on Mr Sidhu's immigration position. There wascertainly a risk, and I accept it was a reasonable risk, that his (and his wife's)immigration status would be compromised. But leaving the assessment of Mr Sidhu'simmigration status to immigration officials was not an error. In my view, and basedon the materials then before Judge Moses, to have declined to enter a conviction onthis basis would have been to usurp INZ's decision-making role. This is particularlyso given the Judge's assessment of the gravity of Mr Sidhu's offending.[23] I accept that in some cases, the Court will be willing to intervene and grant adischarge without conviction in the face of potential immigration consequences. Butthis is often when the offending can be described as low level, and the consequencesof a conviction are clear. An example of such a case is Bong v R.15 In that case, it wasagreed that the offending in question was "very low-level",16 and there was expertevidence that it would be "very difficult" for Mr Bong to persuade the immigrationauthorities to exercise their discretion and cancel a deportation order. Other examplesof the courts being willing to grant a discharge without conviction in the context ofimmigration concerns include where there is a risk of a family, including youngdependents, being broken up.1713 Ho v R [2016] NZCA 229.14 At [15].15 Bong v R [2020] NZCA 94.16 At [30].17 See for example, R v Tang [2019] NZHC 2056 (moderate gravity of offending, real risk ofseparation from young son); Sunda v Police [2019] NZHC 756 (moderate gravity of offending,separation from wife and young child); Vohra v Police [2018] NZHC 3192 (low gravity of[24] But there was no evidence to this effect before the Judge (or me); rather,Mr Sidhu and his wife do not have children and it is plain she would not be able toremain in New Zealand but for Mr Sidhu's visa status. They would therefore returnto India together. There was also no suggestion of any particular hardship were thatto occur, and from the submissions made before me, it seems Mr Sidhu has asupportive family in India (as they are presently supporting him and his wifefinancially while he is unable to work).[25] I accordingly discern no error in the Judge's decision not to grant a dischargewithout conviction. On that basis, and had Mr Sidhu appealed within time, I considerit likely his appeal would have failed.[26] But what of the position now? It is now of course more than two years afterMr Sidhu was sentenced and the immigration process has run its course. At least asmatters presently stand, the decisions have not fallen in Mr Sidhu's favour and he (andhis wife) are presently unlawfully in New Zealand. Subject to any remaining appeals,applications for judicial review or other avenues available in the immigration context,there is a real likelihood of deportation.[27] Does this provide a basis for granting an extension of time in this case? In myview, it does not. The process properly recognised by the Judge to be within thedomain of INZ has simply run its course and the immigration risk identified atsentencing has come to pass. And that consequence is not, in my view, out of allproportion to the gravity of the offending in this case. The gravity of the offendingwas moderate. There is no suggestion of Mr Sidhu being separated permanently fromdependants, such as young children, or his wife. Nor is there any suggestion of anyparticular hardship to Mr Sidhu or his wife were they to return to India.18 Further, INZis already fully aware of Mr Sidhu's offending. Accordingly, granting a dischargewithout conviction now, particularly when there was no error in the judgment fromoffending, separation from committed partner); and Chand v Police [2017] NZHC 2188 (lowgravity of offending, likely deportation of sole caregiver to young child).18 I take into account the very difficult situation India faces at present due to COVID-19. I proceedon the assumption that INZ takes these matters into account when considering the timing of anydeportation.which Mr Sidhu seeks to appeal, would in my view be analogous to this Court usurpingINZ's decision-making function.[28] For these reasons, I decline to grant leave to appeal.___________________________Fitzgerald J