JUNEJA v NZ POLICE [2020] NZHC 1728

JUNEJA v NZ POLICE [2020] NZHC 1728 [16 July 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-000086[2020] NZHC 1728BETWEEN HARPREET SINGH JUNEJAAppellantAND NEW ZEALAND POLICERespondentHearing: 13 July 2020Appearances: D G Young for the AppellantL Radich for the RespondentJudgment: 16 July 2020JUDGMENT OF WOOLFORD JThis judgment was delivered by me on Thursday, 16 July 2020 at 4:00 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors: Kayes Fletcher Walker (Office of the Crown Solicitor), ManukauCounsel: D G Young, Barrister, Auckland[1] On 6 August 2019, after a Judge-alone trial, Judge Blackie found a charge ofmale assaults female against Harpreet Singh Juneja proven. On 9 October 2019, theJudge declined Mr Juneja's application for a discharge without conviction. Instead,he convicted him and ordered him to come up for sentence within six months if calledupon. Mr Juneja now appeals against the Judge's refusal to discharge him withoutconviction.Factual background[2] One evening in November 2018, an argument developed between Mr Junejaand the complainant, his partner at the time. During the argument, Mr Juneja calledher a "Filipino slut". The complainant became upset and emotional. She used herhand to push towards Mr Juneja while lifting herself slightly off her seat in an attemptto push him away so as to end the argument. Mr Juneja became enraged and punchedthe complainant in the mouth with his right fist. The punch caused a cut to her lip anddamaged two front teeth, which necessitated a root canal and other dental work.[3] Subsequently, the complainant's confidence has been badly affected. She hasnot been able to function properly at work and has had recurring nightmares.Grounds of appeal[4] Three grounds of appeal are advanced:(a) The Judge erred in applying the principles for discharging an offenderwithout conviction;(b) Fresh and cogent evidence about the effect of a conviction onMr Juneja's immigration status is now available; and(c) Former counsel was negligent in the advice he gave Mr Juneja and infailing to use the services of an interpreter.Principles for discharge[5] Mr Juneja submits that the Judge erred in applying the principles fordischarging an offender without conviction in that he:(a) Failed to take into account relevant mitigating features (previous goodcharacter, voluntary work and rehabilitative efforts) at the first stage;and(b) Failed to adequately take into account the consequences of convictionon Mr Juneja's immigration status and the effects on his employmentprospects at the second stage.[6] Relevant mitigating factors do not, however, have to be considered at the firststage when assessing the gravity of the offence. As explained by the Court of Appealin Z (CA447/12) v R:1[28] The approach just outlined seems to us to fit best with the structure ofs 107 and to provide the most helpful framework for analysis. While we areconscious that the Court in Blythe expressly disapproved it, we do not considerthe approach to be wrong in principle. What we do consider to be wrong inprinciple is to leave the consideration of personal aggravating and mitigatingfactors out of the s 107 analysis and to address them only in the context of thes 106 discretion. We do not see how the disproportionality analysis requiredby s 107 can be undertaken without taking into account the offender's personalaggravating and mitigating circumstances. However, while consideration ofthese circumstances must, in our view, be carried out in the context of thes 107 analysis, whether this occurs at the first or third step of that analysis isnot of great significance. Provided that all relevant factors are considered inthe s 107 context, the precise point at which they are considered is unlikely tobe material.[7] The Crown accepts that the Judge did not consider Mr Juneja's personalmitigating factors when assessing the gravity of the offence. He did, however,consider those factors later in his sentencing notes when he stated:2So, for those reasons I am declining to grant your application for a dischargewithout conviction. However, I do take into account that you have not beenin trouble before. I do take into account that you have taken some steps withregard to anger management, and I do take into account that you have, or areendeavouring to maintain an on-going relationship with the complainant. Just1 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [28].2 At [23].how far that has got since the date of your last hearing, I am not reallyinformed.[8] Although brief, these comments do demonstrate the Judge did take Mr Juneja'spersonal mitigating factors into account in the required disproportionality analysis.[9] The Judge was also acutely aware of the possible consequences of a convictionon Mr Juneja's immigration status. He referred to those consequences at some lengthbefore, in effect, determining that he did not want to usurp the role of ImmigrationNew Zealand (INZ) in deciding whether Mr Juneja was a suitable person to remain inNew Zealand. The Judge was not in error in approaching the issue in that way. INZwas aware of the charge before it was heard and determined. Once it was proven, INZcould take it into account in assessing Mr Juneja's character, regardless of thesentencing outcome. In its later character assessment dated 4 March 2020, INZ notedthe Judge's comment that the sentence imposed was reasonably minor and said hiscomment had been taken into consideration in the character assessment.[10] The Judge did not specifically address the effect on Mr Juneja's employmentprospects because he was given little information on them. Mr Juneja has completedqualifications as a chef in New Zealand, which is an area of skill shortage. He did sowhile on a student visa. However, on his application for an open post-study work visa,he stated he was employed as a customer service representative at Mitre 10.[11] In his affidavit dated 25 September 2019 in support of the application for adischarge without conviction, Mr Juneja attached a letter dated 19 September 2019from the Service and Operations Manager, Mitre 10 Mega Manukau, which states:This letter is to confirm that Harpreet (Sandy) Juneja was employed by Mitre10 Mega Manukau.Harpreet was a valuable part of our team. He is very hard working, reliableand dedicated team member. He was employed by us from 5th February 2019to 2 July 2019 he was part of our Customer Service team working in theCustomer Service department. Due to his visa situation he wasn't able tocontinue working here, we would definitely hire him back if he was granted avisa.[12] This is more of a character reference, rather than any indication of an inabilityto find work because of his conviction.[13] In his affidavit dated 19 June 2020 in support of the appeal, Mr Juneja attachedpart of an application form for employment at Mitre 10 printed out from the internet,which asks whether the applicant has ever been convicted of a crime in New Zealandor any other country, without explaining how that may affect employment at Mitre 10or elsewhere.[14] The sole reference to the consequences of a conviction in the affidavit dated19 June 2020 in support of the application for a discharge without conviction is astatement by Mr Juneja that he was unable to renew his visa with the active criminalcharge. Mr Juneja has not provided any evidence that Mitre 10 would not re-employhim on account of a conviction for male assaults female. Similarly, no informationhas been provided by him why he has been unable to work as a chef with a convictionfor male assaults female. His counsel advised the Court that Mr Juneja did not wantto work as a chef and only saw cooking school as a route into New Zealand.[15] The Judge, therefore, cannot be criticised for not taking into account the effectson Mr Juneja's employment prospects when there was little information before him.Fresh and cogent evidence[16] Mr Juneja seeks to adduce the following new evidence on appeal:(a) INZ letter dated 10 March 2020 declining Mr Juneja's application for a workvisa on the basis of not meeting good character requirements.[17] By itself, this two-page letter does not identify precisely the extent to whichthe conviction impacted the negative finding as to character. It refers to a letter ofconcern dated 19 February 2020, and Mr Juneja's response dated 28 February 2020,neither of which had been provided by Mr Juneja. At the hearing of the appeal I was,however, provided with a copy of the two letters. The letter dated 19 February 2020indicates that INZ were also concerned about Mr Juneja's initial omission of thecharge of male assaults female in his application for a work visa when he answeredthe following question in the negative:In any country, including New Zealand, are you currently under investigation,wanted for questioning, or facing charges for any offence?[18] I also was provided with a seven page attachment to the INZ letter dated10 March 2020 at the hearing of the appeal. It sets out the INZ character assessmentin some detail. It discloses, for example, that INZ also assessed Mr Juneja's familycircumstances in considering whether to grant a character waiver. It noted thecomplainant's recent declaration that her relationship with Mr Juneja was at an enddespite Mr Juneja's latest statement that they were working on their relationship. Thisinformation had also not been provided by Mr Juneja. In fact, in his affidavit dated19 June 2020 in support of the appeal, Mr Juneja stated:I am currently still in a relationship with the complainant. We have resolvedour issues however she is a New Zealand resident and if I am deported thatwill place our relationship in jeopardy.[19] Another negative factor weighed in the INZ character assessment was that:Despite his qualification [as a chef] the client does not have a clear pathwayto residence. His employment as declared in his application form is as acustomer service representative at Mitre 10.[20] The INZ letter dated 20 March 2020 is fresh and cogent evidence and can beadmitted on that basis but it is not particularly helpful to Mr Juneja as it reveals therewere a number of other factors apart from the fact of a conviction considered andweighed in the balance by INZ.(b) INZ letter dated 16 June 2020 refusing Mr Juneja's application for a specialvisa under s 61 of the Immigration Act.[21] This letter is fresh and cogent evidence and can be admitted on that basis, butcannot be accorded any real weight as the grant of such a visa is in the Minister'sabsolute discretion and no reasons are given.(c) CAA Fit and Proper Person Questionnaire and two internet printouts whichappear to be part of application forms for employment at Bunnings Warehouse andMitre 10.[22] Mr Juneja now says in his affidavit dated 19 June 2020 that his goal is and hasalways been to become a commercial pilot one day and so annexes a Civil AviationAuthority questionnaire which asks if he has been convicted of any criminal offence.He also annexes part of application forms for employment at Bunnings Warehouse andMitre 10.[23] These documents are neither fresh nor cogent and cannot be admitted onMr Juneja's appeal.Counsel conduct[24] Four particular grounds are advanced under this heading:(a) His Public Defence Service (PDS) lawyer, Mr Te Koha, did notadequately advise him of the advantages of pleading guilty or trying tonegotiate a more advantageous summary of facts;(b) Mr Juneja found Mr Te Koha generally difficult to contact;(c) Mr Juneja felt he did not get the support he needed, including the useof an interpreter; and(d) His immigration lawyer, Mr Jag Lal, advised him to plead not guilty.[25] Mr Juneja has sworn an affidavit dated 19 June 2020. Mr Te Koha and Mr Lalhave responded by affidavits dated 6 July 2020.[26] As to the first ground, Mr Juneja states:I explained my story to my lawyer Mr Te Kohe and he said that I should pleadnot guilty. It was never explained to me that I might receive possible discountsat sentencing if I plead guilty otherwise I would have done so also the Lawyerdid not advise me of the option of pleading guilty and seeking a dischargewithout conviction or how pleading guilty would improve my chances of adischarge without conviction? In addition the lawyer did not discuss thepossibility of negotiating a resolution with the prosecution either to reduce thecharge or to amend the summary of facts.[27] Mr Te Koha gave a detailed and comprehensive reply in his affidavit. I preferand accept Mr Te Koha's evidence that Mr Juneja was aware from their discussionsthat he had the option to plead guilty prior to trial and still pursue an application for adischarge without conviction. At case review, Mr Juneja confirmed instructions tomaintain a not guilty plea and proceed to a Judge-alone trial.[28] Mr Te Koha acknowledges that he could have explored the possibility of anamended summary of facts and subsequent application for a discharge withoutconviction at an earlier stage but it is clear that Mr Juneja emphatically asserted hisinnocence. Mr Te Koha wrote to the Police asking them to withdraw the charge onthe basis of self-defence. The Police refused and indicated that they were consideringupgrading the charge. They were adamant that any guilty plea could only be to asummary of facts that recognised that Mr Juneja had hit his partner in the face with aclosed fist. Mr Juneja never conceded that until after a specific finding by the Judgeat trial.[29] As to the second ground relating to counsel conduct, Mr Juneja states he foundit very difficult to get in contact with Mr Te Koha. Mr Te Koha responds as follows:I had regular contact with Mr Juneja throughout the proceedings and myrecords highlight that he attended the PDS Manukau office on a number ofoccasions. In addition, we were in relatively regular phone contact.I was without a work cell phone for a month around August/September 2019.However, at all times he could have called me at the PDS office, the details ofthose numbers were on my reporting letters to Mr Juneja. He also had myemail address and used it to correspond with me.On one occasion, Mr Juneja had another criminal lawyer that he knew, ringthe office to tell me to contact him. I received an email notifying me thatAnjeet Singh had asked I contact him to discuss immigration matters.On another occasion he attended the PDS office with the complainant, whileI was on sick leave. Mr colleague Colin Ross talked with him and sent him aletter following his meeting with him.While I accept that I possibly didn't respond to every request for contact fromMr Juneja, I maintained regular contact with him.[30] Even if Mr Juneja sometimes found it difficult to contact Mr Te Koha, I agreewith Crown that this does not add any substance to the appeal. Mr Juneja has notexplained how he was disadvantaged by not being able to speak to his lawyer whenhe wanted to. There is no evident miscarriage of justice.[31] The third ground is a little unclear about the type of support Mr Juneja says helacked, apart from the services of an interpreter. Mr Juneja states:I did not get the support I needed throughout this process. In addition becauseEnglish is not my first language I struggle at times to understand everythingthat is being said or in particular to convey my message accurately. At nostage however was I offered an interpreter during our meetings.[32] I accept Mr Te Koha's evidence that he had a number of meetings withMr Juneja, took full notes of the meetings and corresponded with Mr Juneja,Mr Juneja's immigration lawyer and the Police. Nowhere is it evident that Mr Junejaneeded an interpreter. Apart from his extensive dealings with Mr Te Koha, Mr Junejaachieved qualifications in New Zealand in courses presumably taught in English. Healso worked at Mitre 10 in customer services for six months in 2019 and completedan evidential video interview with the Police in English without apparent difficulty. Iam not persuaded that an interpreter was required in the interests of justice.[33] As to the fourth ground, Mr Juneja states:I was on a work visa when I was charged with male assaults female, thereforeI engaged an immigration lawyer, Jag Lal to advise me on immigrationmatters.Jag Lal used to be a criminal lawyer, so I trusted him. From the very beginninghe told me that I needed to plead not guilty because a guilty plea will ruin myfuture in New Zealand. He said that a conviction will mean that I would notbe eligible for a visa unless I was granted a character waiver. He stated that ifI am convicted that it will be unlikely that I would be granted a characterwaiver. Therefore, he advised that I needed to plead not guilty to avoid aconviction. A letter from him was attached to my original affidavit in supportof my discharge.[34] Mr Lal replies:At the time Mr Juneja consulted me the plea of Not Guilty had been entered.I did not have instructions to deal with the pending criminal charge.My instructions were to deal with immigration matters and it was not in mybrief to advise the trial counsel, Aaron Koha.I confirm my discussion with Mr Juneja that for a migrant to be granted a visa,he is required to be of good character.My discussion with Aaron Te Koha was an email dated 15 June 2019 in whichI confirmed the need for good character for a migrant to be granted a visa.I neither had instructions nor presumed to advise Mr Te Koha about the plea.[35] In an email dated 23 March 2020 to counsel initially retained by Mr Juneja forthe purposes of the appeal, Mr Lal did, however, state: "I confirm that I advisedMr Juneja and his counsel that a plea of not guilty should not be entered".[36] Although it appears that Mr Lal did advise Mr Juneja that he should not pleadguilty, Mr Lal has attached his written terms of engagement to his affidavit. It is signedby Mr Juneja and makes clear that Mr Lal was advising him in relation to immigrationmatters only. Mr Lal may well have stressed the importance, for immigrationpurposes, of avoiding a conviction, but this must be viewed in the context thatMr Juneja was receiving separate and detailed advice from a PDS lawyer on defendingthe criminal prosecution. Mr Juneja knew that he could plead guilty and nowobviously regrets with the benefit of hindsight that he did not do so.Result[37] None of the grounds of appeal are made out. The appeal is dismissed.________________________________Woolford J