CHAHAL v POLICE [2022] NZHC 3276

CHAHAL v POLICE [2022] NZHC 3276 [7 December 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-378[2022] NZHC 3276BETWEEN HARMANDEEP SINGH CHAHALAppellantAND NEW ZEALAND POLICERespondentHearing: 7 December 2022Appearances: P J Kaye for appellantC F Anyon-Peters for respondentDate of judgment: 7 December 2022ORAL JUDGMENT OF JAGOSE JCounsel/Solicitors:P J Kaye, Barrister, AucklandMeredith Connell, Auckland[1] Harmandeep Singh Chahal appeals against the 10 February 2022 and20 September 2022 decisions respectively of Judges G A Fraser and C M Ryan in theDistrict Court at Auckland.1 Judge Fraser declined to discharge Mr Chahal withoutconviction, and Judge Ryan sentenced him to six months' supervision and 100 hours'community work, on his guilty pleas to charges of burglary,2 injuring with intent,3 andtrespass.4Background[2] The charges arose from Mr Chahal's uninvited attendance at the victim's homeon 20 October 2020, from which he had been trespassed a week earlier. Together withanother person, he entered the house and attacked the victim, punching and kickingher to and when on the ground, abusing her as they did so. The offending boreovertones of family violence as Mr Chahal briefly had been in a relationship with thevictim.Judgments under appeal[3] Mr Chahal was entitled to be discharged without conviction only if the directand indirect consequences of his conviction were out of all proportion to the gravityof the offences.5 The proportionality test is a question of fact requiring judicialassessment.6 A three-step analysis — the gravity of the offending; the direct andindirect consequences of a conviction; and if those consequences are out of allproportion to the gravity — is required.7 There must be a "real and appreciable" riskany given consequence will arise; this recognises the court is assessing future1 Police v Chahal [2022] NZDC 2231 ["Section 106 decision"]; and Police v Chahal [2022] NZDC18727 ["Sentencing decision"].2 Crimes Act 1961, s 231(1)(a); maximum penalty, 10 years' imprisonment.3 Section 189(2); maximum penalty, five years' imprisonment.4 Trespass Act 1980, ss 4(4) and 11(2)(a); maximum penalty, $1000 fine or three months'imprisonment.5 Sentencing Act 2002, ss 106–107; and Scott v R [2019] NZCA 261 at [78]–[80], citing Prasad vR [2018] NZCA 537 at [11].6 Dickins v R [2012] NZCA 265 at [14], citing H (CA680/11) v R [2012] NZCA 198 at [30] (citingR v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11], citing R v Rajamani [2007] NZSC 68,[2008] 1 NZLR 723 at [5]).7 Sentencing Act, s 107; Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [14] (cited in Baileyv R [2022] NZCA 335 at [30]); Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [8](cited in Doyle v R [2022] NZCA 307 at [10]); R v Hughes, above n 6, at [16]–[17] (cited inMcKenzie v R [2022] NZCA 172 at [47]); and Scott v R, above n 5, at [79].likelihood.8 Only then may a sentencing judge decide if to exercise residualdiscretion.9[4] Judge Fraser assessed Mr Chahal's offending, "characterised by a homeinvasion and serious violence", as "moderately serious offending".10 He considered,while conviction or not has "an impact on Immigration's view",11 "these mattersshould ordinarily be left to Immigration authorities to determine",12 and "Immigrationhave this in front of them regardless of where the matter ends".13 Having regard forthe effect of Mr Chahal's conviction on his current and future employment and traveland immigration status, the Judge concluded "there is no significant disproportion ofconsequence in relation to the gravity of the offending"; "it is not even finelybalanced".14[5] Similarly assessing Mr Chahal's offending as "moderately serious" by reasonof the victim's vulnerability at home,15 and as a "prolonged assault" by two peopleincluding attacks to the victim's head,16 Judge Ryan took a starting point of 16 months'imprisonment.17 From that starting point, she deducted 25 per cent for Mr Chahal'sguilty plea, 10 per cent for his rehabilitation work, 15 per cent for his previous goodcharacter; and five per cent (rounded down to one month) and a further month for thedelay in sentencing since Judge Fraser's decision, to arrive at six months'imprisonment,18 which the Judge converted to her final sentence.[6] On appeal, Mr Chahal contends the sentence is excessive and he should havebeen discharged without conviction. Peter Kaye argues for him the gravity of hisoffending is reduced by his contrition subsequently and the Judge misapprehended thevirtually certain risk to Mr Chahal's deportation. With that realisation, Mr Kaye8 DC (CA47/13) v R [2013] NZCA 255 at [43].9 An appeal against a refusal to grant a discharge is an appeal against conviction and sentence; seeJackson v R [2016] NZCA 627, (2016) 28 CRNZ 144.10 Section 106 decision, above n 1, at [26].11 Section 106 decision, above n 1, at [25].12 At [26].13 At [28].14 At [28].15 Sentencing decision, above n 1, at [30].16 At [31].17 At [34].18 At [35]–[39].argues, the consequences of conviction are out of all proportion to the gravity of theoffending. No particular submissions are directed at the sentence itself.Approach on appeal[7] An appeal against a refusal to grant a discharge without conviction is an appealagainst conviction and sentence.19[8] There is divergence in binding authority on how I am to address the appealagainst conviction: on the one hand, I am directed to reach my own view as to whetherthe direct and indirect consequences are out of all proportion to the gravity of theoffending, and only then to determine if the first instance court erred in principle;20 onthe other, only if Mr Chahal establishes Judge Fraser was wrong am I to consider hisapplication for discharge without conviction afresh.21[9] I must allow an appeal against conviction if I am satisfied the Judge "erred inhis assessment of the evidence to such an extent that a miscarriage of justice hasoccurred", or if I am satisfied "a miscarriage of justice has occurred for any reason".Otherwise I must dismiss the appeal.22 By 'miscarriage of justice' is meant somethinghas occurred in relation to trial to create a real risk against a more favourable outcomefor Mr Chahal or has resulted in an unfair trial or a nullity.23 The threshold is high; notevery error will amount to a miscarriage of justice.24[10] If the conviction appeal fails, I then may determine if the correct sentence wasimposed.25 I must allow the appeal only if I am satisfied both there is error in thesentence, and a different sentence should be imposed.26 In any other case, I mustdismiss the appeal.27 The approach previously taken by courts on sentencing appeals19 At [9].20 McKenzie v R, above n 7, at [48].21 Maraj v Police [2016] NZCA 279 at [11]; and Austin, Nichols & Co Inc v Stichting Lodestar[2007] NZSC 103, [2008] 2 NZLR 141 at [13].22 Sentencing Act, ss 232 and 240.23 Section 232(4); and R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].24 Otis v Police [2019] NZCA 231 at [4]; and McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764at [38].25 Jackson v R, above n 9, at [13].26 Criminal Procedure Act 2011, s 250(2).27 Section 250(3).continues to apply: the measure of error is the sentence be "manifestly excessive";28the principle is "well-engrained" in this Court's approach to sentencing appeals.29I will not intervene where the sentence is within a range properly justified by acceptedsentencing principle. Whether 'manifestly excessive' is to be assessed in terms of thesentence given, rather than the process by which it is reached.30Further evidence on appeal[11] Mr Chahal also seeks leave to submit expert legal opinion his deportation onconviction almost is certain. Leave will be granted if the interests of justice favouradmission of new evidence on appeal.31 If the evidence is both credible and fresh, itgenerally should be admitted.32 There is no opposition to its admission.[12] The proposed evidence is far from fresh. Ranbir Singh Sandhu, an Aucklandimmigration law specialist, opines Mr Chahal — presently unlawfully inNew Zealand, but qualifying for residence under "settled" criteria, pendingdetermination of his work visa application — is most likely to be issued a deportationliability notice. Although Mr Chahal has appeal rights, Mr Sandhu's experience isImmigration New Zealand is "unlikely to accept any explanation as to why deportationshould not proceed".[13] Mr Sandhu does not explain why Mr Chahal's work visa application would bedeclined on conviction, rendering him liable to deportation. The Immigrationinstructions he exhibits refer only to 'character' requirements for the resident visa asgiving rise to police checks. If deported, Mr Chahal would be ineligible for a furthertemporary or residency visa for five years except with a special direction; if dischargedwithout conviction, Mr Sandhu believes from his professional experience specialdirection "would possibly" be given to cancel Mr Chahal's deportation liability.28 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].29 At [33] and [35].30 Ripia v R [2011] NZCA 101 at [15].31 Criminal Procedure Rules 2012, r 8.8; Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [119];and Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34].32 Lundy v R, above n 31, at [120].[14] All that is information Mr Chahal should and could have put beforeJudge Fraser, to provide a factual basis for a decision if the test was satisfied. But therewas no legal onus on him to do so.33[15] Given the threshold for consequences to be 'out of all proportion' to the gravityof the offending, the interests of justice do not require the evidence's admission toestablish deportation 'would possibly' not follow any discharge without conviction.The evidence does not offer a basis for any more, much less 'real and appreciable',favourable outcome for Mr Chahal. But, given the divergence to which I referred at[8] above, the interests of justice are met by ensuring I have all the informationI require to form my own view. Mr Chahal has leave to file the further evidence.Discussion[16] The evidenced difference between the consequences of each conviction ordischarge is, in the latter circumstance, decision-makers 'would possibly' exercise anydiscretion in Mr Chahal's favour. But there is no evidence conviction is effective toexclude the exercise of any discretion. Even if so, it only then is a marginal distinctionfrom 'would possibly', rather than being qualifyingly disproportionate.[17] Assessing the gravity of the offending requires consideration of aggravatingand mitigating factors relating to both the offending and the offender.34 This is anevaluative, highly fact-dependent exercise.35 Mr Kaye accepts Judge Fraser'sassessment of the offending as moderately serious, as do I. This was a serious assaultof an outnumbered victim in the presumed safety of her own home, to whichMr Chahal's prior consensual access formally was withdrawn. Neither did the Judgeerr in identifying the potential consequences of conviction as based in restrictionsaround Mr Chahal's employment, immigration and travel. Convictions carryconsequences for material assessments of character.33 R v Hughes, above n 6, at [49] and [53]; and DC (CA47/13) v R, above n 8, at [43].34 Rahim v R [2018] NZCA 182 at [15]; Z (CA447/12) v R, above n 7, at [27]; DC (CA47/13) v R,above n 8, at [35]; and Waine v R [2017] NZCA 287 at [21].35 Rahim v R, above n 34, at [16].[18] Where actual consequences turn on a third party's assessment of the relevantfacts, be that immigration authorities or employer, and there is no reason to think theassessment would be made otherwise than in good faith, the better approach is to leavethe assessment for that party than for this Court to avoid those decisions bydischarge.36 That very much is the case here, if Mr Chahal's convictions additionallyare, or are required, to be disclosed to decision-makers. This is not one of those "rarecases" where decision-makers' scrutiny itself is of qualifying disproportionality.37 Thejudge did not err. Justice has not miscarried.[19] On sentence, Mr Chahal's six months' supervision and 100 hours' communitywork is unobjectionable in itself. It is a generous resolution of six months'imprisonment in Mr Chahal's particularly contrite circumstances, that term ofimprisonment also being a generous response to moderately serious offending.Result[20] The appeal is dismissed.—Jagose J36 R v Taulapapa [2018] NZCA 414; and Ho v R [2016] NZCA 229.37 Zhang v Police [2018] NZHC 285 at [32]. See also George v Police [2014] NZHC 1725 at [46].