MCALISTER v NZ POLICE [2022] NZHC 1247

MCALISTER v NZ POLICE [2022] NZHC 1247 [24 May 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-98[2022] NZHC 1247IN THE MATTER OF an appeal against refusal to dischargewithout convictionUNDER the Criminal Procedure Act 2011BETWEEN JOHN MCALISTERAppellantAND NEW ZEALAND POLICERespondentHearing: 24 May 2022Appearances: A Wei for the AppellantCL Wilkinson for the RespondentJudgment: 24 May 2022Reasons: 31 May 2022REASONS FOR RESULT JUDGMENT OF FITZGERALD JThis judgment was delivered by me on 31 May 2022 at 3.00pmRegistrar/Deputy RegistrarDateSolicitors: Meredith Connell, AucklandTo: A Wei, AucklandIntroduction[1] The appellant, John McAlister pleaded guilty to charges of assault with intentto injure,1 possession of an offensive weapon2 and behaves threateningly.3 He appliedfor a discharge without conviction. On 10 March 2022, Judge K Lummis in the NorthShore District Court declined his application.4 Mr McAlister appealed that decision.[2] At the conclusion of the appeal hearing before me, I delivered a result judgmentallowing Mr McAlister's appeal. These are my reasons for doing so.Facts[3] On 27 June 2020, Mr McAlister and his wife were at a birthday party inDairy Flat. The two victims, C and B, were also at the party. The two couples did notknow each other.[4] The party was held in a private bar set up on a rural property, which had a high-quality CCTV system that recorded both audio and video. The footage recovered bypolice formed the basis of the summary of facts to which Mr McAlister pleaded guilty.[5] The party continued on well into the early hours of the morning. Everyonehad been drinking heavily and was intoxicated. Mr McAlister especially had beendrinking to excess, and went off to sleep in his vehicle parked outside.[6] At about 5 am on 28 June 2022, Mr McAlister's wife and the two victims werethe only people left talking in the bar. Everyone else had either left or gone to bed.An argument developed between Mr McAlister's wife and the male victim, C. Asnoted by the Judge, the CCTV footage suggests that the argument was over the way Chad been treating his dog. The Judge observed that Mr McAlister's wife was insistentand persistent and "in C's face" for a significant amount of time, while he and thefemale victim B were trying to diffuse the situation.1 Crimes Act 1961, s 193. Maximum penalty 3 years' imprisonment.2 Crimes Act 1961, s 202A(4)(b) (representative). Maximum penalty 3 years' imprisonment.3 Summary Offences Act 1981, ss 21(1)(a) and (3). Maximum penalty 3 months' imprisonment or$2,000 fine.4 Police v McAlister [2022] NZDC 4109.[7] The argument developed to a point where Mr McAlister's wife went to strikeC and he grabbed her arms as she continued trying to punch him. The Judge recordedthat this was accompanied by lots of "big talk" about what they could do to each other.Eventually they were separated with the help of B, and Mr McAlister's wife wentoutside to wake her husband up.[8] Mr McAlister's wife then returned to the bar and immediately confronted C,punching him a number of times in the head. A melee ensued where C again grabbedher arms to stop her hitting him.[9] Mr McAlister, who by then had arrived, then joined the melee. He grabbedC's arms and launched forward and attempted to headbutt C.[10] C was struck on the shoulder by Mr McAlister's headbutt but was uninjured asa result. Mr McAlister and C began fighting, with Mr McAlister's wife joining in,also trying to assault C.[11] Eventually C managed to hold Mr McAlister and his wife down on the floor,demanding that they both calm down. C then let go, believing the fight was over.[12] Mr McAlister then got up and picked up a 20cm knife that was on the cornerof the table in the middle of the bar area. Mr McAlister was prevented from stabbingC by B, who grabbed his arm as he went to thrust out the knife.[13] Mr McAlister pushed B off and approached C, who backed around the table.He said: "You are a dead man!" and began to chase C around the table, holding theknife in a raised position ready to strike. C managed to run from the bar and calledthe police.[14] Mr McAlister followed, but then returned to the bar area to find his wifeattacking B. She dragged B behind the bar, holding her by her hair, as B begged herto stop. Mr McAlister's wife held B down by her hair for about the next two minutes.[15] During this time, the summary of fact records that Mr McAlister kicked B threetimes in the face as she was held down by his wife. The Judge found that, havingwatched that part of the video repeatedly, Mr McAlister actually kicked the victim fivetimes in total, once to the head and four times to other parts of the body.5 He waswearing heavy work boots. B had no way of avoiding what was happening to her.[16] Eventually B was dragged back to her feet by Mr McAlister's wife, whocontinued to hold her by her hair. Mr McAlister approached B with the knife, pointedit at her face and demanded that she get C back. B agreed that she would do so andran from the bar area.[17] During the entire incident, B continuously tried to diffuse the situation andseparate the parties, repeatedly asking everyone to stop. At no point did she attemptto attack anyone.[18] As a result of being kicked by Mr McAlister, B suffered extensive bruising andtenderness to her face, however she did not sustain lasting damage and her injurieslargely healed within a week. C was mostly uninjured apart from a few minor scrapesand bruises.[19] In explanation, Mr McAlister said he had been drinking excessively and wasso intoxicated that he had urinated on himself. He said that after being punched thefirst time by the male victim C, he could not recall what had happened.[20] I interpolate to raise one matter in relation to the factual basis upon whichMr McAlister was sentenced. The summary of facts to which Mr McAlister pleadedguilty records that the CCTV footage recovered by the Police was the source of thesummary of facts. Unlike some other summaries which are based on CCTV footage,the summary of facts does not expressly state that the CCTV footage was included inand formed a part of the summary of facts. I mention this, as some of the mattersrecounted by the Judge in her summary of Mr McAlister's offending do not feature inthe written summary of facts, but rather were observations made by the Judge fromwatching the CCTV footage.5 However, as Mr McAlister pleaded guilty to the police summary of facts, I do not place any weighton the difference.[21] A disk containing the CCTV footage was provided with the appeal filed, and Itoo watched that footage. I observe, however, that the summary of facts set out at [3]to [19] above is taken from the written summary of facts, and not my own analysis ofthe CCTV footage. Neither party objected to the facts upon which Mr McAlister wassentenced, including those observations the Judge made from her own viewing of thefootage. I record that any additional or different matters noted by the Judge from herreview of the CCTV footage would not, in my view, have altered the outcome onsentencing. But given the increased availability of CCTV footage in private residentialpremises, it would be appropriate in my view for the summary of facts to expresslystate whether the CCTV footage is included in and forms part of the summary of facts,rather than simply stating that the footage is the source of the summary. This isappropriate, in my view, given the parties will no doubt have reached agreement inrelation to the written summary of facts, and the Judge's own observations andinferences drawn from watching the footage might, for example, differ from theparties' interpretation of what has occurred, or the Judge might make incorrectassumptions in relation to what is seen in the CCTV footage. This could be unfair toa defendant, particularly if any additional observations or inferences made by theJudge are not expressly referred to in the Judge's sentencing notes.[22] I emphasise that I am not suggesting that any of the above issues arose in thiscase. Rather I simply take this opportunity to make these observations given thelikelihood of the increasing availability of CCTV footage at sentencing and followinga guilty plea. In short, the preferable course would be for the Police and defendant tobe very clear when preparing and finalising the summary of facts as to whether thefull content of the CCTV footage is to form part of the factual basis for sentencing,that is, in addition to what is recorded in the written summary.Should additional evidence be admitted?[23] Before turning to the substantive appeal, I first address Mr McAlister'sapplication for leave to admit additional evidence on his appeal.[24] Mr Wei, counsel for Mr McAlister (on the appeal, but not at sentencing),sought leave to admit a further affidavit by Mr McAlister which provides considerablymore detail about Mr McAlister's personal circumstances than the relatively briefaffidavit filed in the District Court. Mr Wei submitted that the further evidencedemonstrates the details of Mr McAlister's unique situation and personal background.He submitted that the short, unsworn affidavit before the Judge was poorly preparedand did not provide much detail to assist the Court. The respondent opposed leave(though not vigorously so). Ms Wilkinson, for the respondent, submitted that theevidence is not fresh as it was available at the time of sentencing, and Mr McAlister'sown evidence appeared to dispute in parts the facts upon which he was sentenced.Counsel accepted, however, that the material was cogent and did not give rise to anyprejudice to the respondent.[25] Pursuant to s 335 of the Criminal Procedure Act 2011, this Court, on an appeal,can conduct its own enquiry into evidential matters if it considers it necessary orexpedient in the interest of justice to do so. Further evidence may be adduced onappeal if it is fresh and credible.6 The overriding criterion is always what course willbest serve the interests of justice.[26] Here, the proposed evidence is not fresh, in that it could have been placedbefore the Judge at sentencing. However, I accepted that it went to the heart of theappeal, as it directly concerns Mr McAlister's personal circumstances and the risk ofdeportation flowing from his convictions. Further, it is credible. I was satisfied therewould be no prejudice to the respondent were it to be admitted. I was therefore of theview that it was in the interests of justice to admit the proposed evidence.The District Court decision[27] I turn now to the District Court decision.[28] After summarising the facts of the offending and the victim impact statements,the Judge turned to the gravity of Mr McAlister's offending. She identified fouraggravating factors: B's vulnerability, the strike to the head, the situation of "two onone" and the extent of the harm to B. She noted that counsel had raised the issue of6 Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71; and Lundy v R [2013] UKPC 28, [2014] 2 NZLR273.self-defence and provocation, but found "completely to the contrary", noting it wasMr McAlister's wife who attacked victim C, and while C was involved in the fight hewas broadly trying to calm things down, and by the time Mr McAlister kicked B inthe face, C was well gone in any event.7[29] The Judge said it was unclear what impact Mr McAlister's prior head traumawould have had on his decision-making, but it was disturbing that the lead chargehappened when things on the face of it were calming down. She recorded that counselfor Mr McAlister accepted that the gravity of the offending was "somewhat serious".8[30] The Judge characterised the offending as "very serious" and the "very worsttype of offending for that level of charge" to which Mr McAlister had pleaded guilty.9She considered that, even taking into account the prior head trauma, a starting pointwould be "close to the maximum".10 She recorded that this also took into account allof the offending, including the "serious" presentation of the knife at C.11 The Judgesaid Mr McAlister was very lucky not to be facing more serious charges and incrediblylucky that B did not end up with a serious head injury.[31] The Judge then turned to mitigating personal factors. She considered a 10 percent discount was appropriate for Mr McAlister's guilty pleas, but increased that to15 per cent to take into account his remorse. She recorded that Mr McAlister had noprior convictions, and that she had materials before her indicating he had been a personof good character. She noted that while he had not engaged especially in alcohol ordrug counselling, he had not had a drink since the offending. She referred to hismultiple prior head traumas and that fact he had offered to make a $5,000 reparationpayment.[32] The Judge concluded that if this had been a sentencing in the normal course ofevents, from a start point of three years, taking the most generous view of the discounts7 Police v McAlister, above n 4, at [18].8 At [19].9 At [20].10 At [20].11 At [20].available (totalling around 40 per cent) would result in a sentence of just under twoyears. She recorded that this would likely lead to a sentence of home detention.[33] The Judge then referred to parity with Mr McAlister's wife, who was alsocharged and convicted as a result of the events described earlier. She had beensentenced to six months' community detention and intensive supervision. The Judgedescribed that sentence as "lenient".12[34] Taking into account all of these factors, the Judge remained of the view thatthe offending was serious, and that if it was anything below that, it would only beslightly below that.[35] The Judge then considered the consequences of a conviction. She referred to aletter in support from Mr Martin, an immigration lawyer, which outlined thatMr McAlister holds a resident-class visa that was granted on 6 March 2019 and thathe is liable for deportation if convicted on the charges, pursuant to s 161(1)(b) of theImmigration Act 2009 (the Act).[36] The Judge noted that Mr McAlister would have the ability to appeal to theImmigration and Protection Tribunal against deportation. However, she accepted thegrounds for appeal are limited to humanitarian circumstances and the informationbefore her from Mr Martin was that he did not consider Mr McAlister would have aparticularly strong case, despite the strong links with his wife and young child in NewZealand. The Judge stated that if Mr McAlister were deported, he would have apermanent prohibition on entering New Zealand. The Judge continued:[34] Mr Martin goes on to explain that when a conviction becomes knownto Immigration New Zealand, the file is referred to the resolutions branchwithin Immigration New Zealand. They are responsible for investigatingdeportation liability and preparing reports to the minister to enable him toexercise his powers. The report will present the Minister of Immigration withthree options. The first is to cancel the deportation liability, the second is tosuspend the deportation liability for a maximum of five years and can includecertain conditions, and the third is to issue a deportation liability notice. Oncethe deportation liability notice is issued, you will be served and have the abilityto exercise your right of appeal.12 At [29].[35] The decision by the minister to cancel or suspend a deportationliability is not subject to the Official Information Act and consequently theminister is not obliged to give reasons or to set out factors taken into account.It is not clear to me from the information before me when the minister wouldexercise the right to cancel the deportation liability or to suspend thedeportation liability. The focus of this letter is simply on the likely resultingdeportation liability notice.[36] The letter goes on to talk about the exceptional circumstances of ahumanitarian nature which would be required for your appeal to be successful.The letter then perhaps strays into submission and quotes from a number ofcases as to how the courts have interpreted this in s 106 cases previously. MrAnderson [Mr McAlister's counsel at sentencing] is right when he says youcan find cases that go both ways. Certainly, I accept that the consequences ofbeing liable for deportation are significant for you. If you were deported, thatmay well see your family split up and the concern about your family's futureobviously weighs very heavily on you. Ms Taylor in court today fromProbation told me that your wife has been doing very well on her sentence ofintensive supervision but that today's hearing has been weighing heavily onher as well.[37] The Judge noted that there are a number of Court of Appeal decisions relatingto immigration consequences, some dealing directly with s 161. She referred to the"not dissimilar" decision in Zhu v R, in which the Court of Appeal considered thatalthough the evidence was finely balanced, it was not necessary or helpful to estimatehow likely it was that a deportation liability notice will issue.13 The Judge also referredto Rahim v R.14 In that case, the Court of Appeal said that the courts, when consideringhow a conviction might affect an offender's immigration status, may consider itappropriate for the consequences of conviction to be resolved by the specialistauthorities, rather than the courts pre-empting that process by a decision to dischargewithout conviction.15[38] The Judge accepted that there would be significant consequences forMr McAlister, and that deportation appeared to be a real and appreciable risk.[39] The Judge then considered whether the identified consequences would be outof all proportion to the gravity of the offending, noting that there was no onus onMr McAlister to establish disproportionality. She concluded that the consequenceswere not out of all proportion, saying:13 Zhu v R [2021] NZCA 254, as cited in Police v McAlister, above n 4, at [37].14 Rahim v R [2018] NZCA 182.15 At [28].[40] ... I am troubled by your situation. I have considerable sympathy, and Isuggested that there may be a way forward if the police were able to reducethe charges further, and I asked the prosecutor to explore that over the lunchhour. I can understand why the police have chosen not to make any furtherreductions as well, because in the end what I am left with is that this was reallyserious offending. I do not think, given my assessment of the offending, thatit can be said despite the drastic possible consequence for you, that it is out ofall proportion.[41] It can't be right that in any case where deportation is an expectedconsequence that a discharge should result. For offending assessed as gravethe usual consequences must follow.(emphasis added)[40] For these reasons, the Judge declined the application for discharge. She saidthat while she hoped Mr McAlister would in fact be able to stay in New Zealand andsupport his wife, she still thought Immigration New Zealand should be the entity tomake that decision, not her. Taking into account parity with Mr McAlister's wife, sheimposed a sentence of six months' community detention and a $2,500 emotional harmreparation. In respect of the possession of a weapon charge, she sentencedMr McAlister to six months' community detention, to be served concurrently. Shedischarged and convicted Mr McAlister in respect of the threatening charge.The law[41] Sections 106 and 107 of the Sentencing Act 2002 enable a court to dischargean offender without conviction, provided the court is satisfied the direct and indirectconsequences of a conviction would be out of all proportion to the gravity of theoffence.[42] As noted by the Court of Appeal, this is a two-stage inquiry.16 First, the Courtmust determine the gravity of the offence and the consequences of conviction, andwhether those consequences are out of all proportion to the gravity of the offending.It is well-settled that the assessment of the gravity of the offending is to be assessed atthis stage by considering all the aggravating and mitigating factors relating to theoffending and the offender.17 At the second stage, if the Court is satisfied the16 DC v R [2013] NZCA 255 at [31].17 Z v R [2012] NZCA 599, [2013] NZAR 142 at [27]; DC v R, above n 16, at [35]; and Waine v R[2017] NZCA 287 at [21].consequences are out of all proportion to the gravity of the offending, it should thenconsider whether to exercise its discretion to decline to grant a discharge.[43] In terms of the consequences of a conviction, the Court should consider notjust those consequences that "would inevitably or probably occur", but all those wherethere is a "real and appreciable risk that such consequences would occur."18[44] Where a risk of deportation is raised as a consequence of conviction, both theCourt of Appeal and this Court have cautioned against the courts usurping the role ofimmigration officials.19 As Asher J said in Zhang v Ministry of EconomicDevelopment:20 it is appropriate for the consequences of conviction to be resolved by theappropriate authorities, rather than the Court attempting to pre-empt thatdecision-making process by a decision to discharge without conviction There is nothing that requires the courts to intervene to try and impose theirperception of what the right immigration consequences should be. That is bestleft to the immigration authorities.[45] However, this position was qualified somewhat by the Court of Appeal inRahim v R, the Court stating:21[28] Courts assessing how a conviction might affect an offender'simmigration status or ability to travel overseas may consider that it isappropriate for the consequences of conviction to be resolved by the specialistauthorities, rather than by a Court pre-empting that decision-making processby a decision to discharge without conviction.[29] The reluctance of courts to intervene in the decision-making ofspecialist bodies such as Immigration New Zealand or, in the employmentcontext, professional disciplinary bodies, is most often evident where theoutcome cannot reasonably be 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.[30] In the present case, however, Mr Laurent's expert opinion establishesthat the real and appreciable risk is significantly higher than the mere prospectof deportation; it is that, after Mr Rahim has undergone all of the statutory18 Alshamsi v Police HC Auckland CRI-2007-404-62, 15 June 2007 at [20].19 Almarzouqi v Police [2020] NZCA 398 at [14], citing Zhang v Ministry of Economic DevelopmentHC Auckland CRI-2010-404-453, 17 March 2011 at [14]; Singh v Police [2020] NZHC 368 at[37]–[39]; and Ho v R [2016] NZCA 229 at [15].20 Zhang v Ministry of Economic Development, above n 19, at [14] (citations omitted).21 Rahim v R, above n 14 (footnotes omitted) (emphasis added). See also Almarzouqi v Police, aboven 19, at [14]; and Singh v Police [2019] NZHC 417 at [39].processes, a conviction is likely to result in his being required to leaveNew Zealand. That would be devastating for him and his family. ...[31] It is important also to identify whether the consequences underscrutiny are predicted to follow from the offending or from the fact ofconviction. The s 106 cases founded on the risk of employment consequencesprovide a good illustration of the point. Often, in such cases, it is the offender'sconduct and not merely the conviction which gives rise to consequences theoffender wishes to avoid. In this case, however, it is the conviction rather thanwhat Mr Rahim did that will trigger the real and appreciable risk that he islikely to be deported.[46] In Rahim, the defendant and his wife had immigrated to New Zealand with ayoung child. If the defendant were to be deported, his wife "would face the prospectof an extremely difficult decision between returning to Pakistan with her husband oraccepting the break-up of the family by remaining in New Zealand while her husbandattempted to persuade New Zealand's immigration authorities to allow him toreturn".22[47] There have been a number of High Court decisions since Rahim recognisingthat where there is a real and appreciable risk of deportation which will cause seriousharm to a defendant's family (usually in the form of a family unit being broken up),that may be relevant to the assessment of whether to grant a discharge withoutconviction.23Analysis[48] Mr McAlister is 45 years old. He is a British citizen. He does not have anyprior convictions. He has lived in New Zealand since 2014, after leaving NorthernIreland following his service in the British Army in Northern Ireland. He has steadyemployment (as a specialist gas engineer), and contributes usefully to society in NewZealand (including through the Returned Services' Association).[49] Mr McAlister and his wife are parents to a daughter, now aged three years old,and he is also a father figure to his wife's two young children from a prior relationship.Mr McAlister's wife is a New Zealand citizen.22 Rahim v R, above n 14, at [24].23 Singh v Police, above n 19, at [38], citing Singh v Police, above n 21; Kovalic v Police [2019]NZHC 1214; R v Tang [2019] NZHC 2056; Sunda v Police [2019] NZHC 756; and Chand v Police[2017] NZHC 2188. See also Vohra v Police [2018] NZHC 3192.[50] Turning first to the gravity of Mr McAlister's offending, I agree with the Judgethat, prior to personal factors mitigating factors being taken into account, the offendingin this case was serious. It was ugly, and certainly in relation to victim B, gratuitous.I also agree with the Judge's characterisation of the aggravating factors at [14] to [17]of her judgment. I take into account, however, that through good fortune, neithervictim B nor C suffered any significant or lasting injuries.[51] At the appeal hearing, Mr Wei sought to persuade me that a mitigating factorof the offending was self-defence/provocation. I do not agree. I accept that whenMr McAlister first entered the fray, he may have been acting under the belief that hiswife had been assaulted by the male victim. Further, I accept that, certainly in thecontext of the fight between Mr McAlister and the male victim, the male victim was,to put it colloquially, "giving as good as he gets" and at some point, as the Judgeobserved, was seemingly getting the better of Mr McAlister. However, thingsescalated significantly when Mr McAlister picked up the knife. Further and in anyevent, and as the Judge noted, the male victim left the room fairly shortly after thatand from that point onwards, there was no threat to Mr McAlister himself, orprovocation from the female victim. On the contrary, she was vulnerable, and therepeated kicks Mr McAlister gave her while she was on the ground behind the barwere at a time where she was also being attacked by his wife (although it seemssomewhat ineptly due to his wife's highly intoxicated state), and thus presenting nophysical threat to Mr McAlister.[52] Mr Wei also sought to persuade me that following what appears to be somestrikes to his head by the male victim, Mr McAlister almost seemed to act"unconsciously" and with a slowness in his actions. He said this was a furthermitigating factor to the offending. But as I noted with Mr Wei at the appeal hearing,there was no expert evidence before me to support the submission that Mr McAlister'soffending, following a punch to his head by the male victim, was somehow caused oraggravated by any such injury. The link between a head injury and Mr McAlister'ssubsequent offending is accordingly speculative.[53] I turn then to personal aggravating and mitigating factors. No personalaggravating factors are suggested. As noted, Mr McAlister has no prior convictions.[54] Unlike the District Court Judge, I have had the benefit of more detailedinformation in relation to Mr McAlister himself, his background, and his physical andmental health. Taking into account this material, I consider there are reasonably strongmitigating personal factors. As noted, Mr McAlister is 45 years old, and therefore isnot a young man. He has no prior convictions. Accordingly, over his entire adult life,and but for the index offending, Mr McAlister has been of good character and aproductive and contributing member of society. I therefore accept that the indexoffending was an aberration for him, brought about by being severely intoxicated andat least in the initial stages, apprehending that his wife may have been assaulted.[55] I also accept that Mr McAlister is genuinely and deeply remorseful, evidencedby his further affidavit filed on the appeal, which I accept is in his own words and not"word-smithed" by legal counsel. It is also seems clear from the medical evidencefiled with Mr McAlister's affidavit that he did suffer a concussion or similar braininjury through what appear to have been punches to his head by the male victim.Mr McAlister was taken to the Emergency Department nine days after the offending,with quite significant and ongoing concussion-like symptoms. There is furthermedical evidence about the physical and mental difficulties Mr McAlister hasexperienced as a result, which appear to be cumulative upon a number of earlierconcussions and head injuries. I should emphasise that I am not referring to thesematters to suggest that Mr McAlister's head injury is a mitigating factor in relation tohis offending. Rather, I take into account the relatively clear evidence that since theindex offending, Mr McAlister's neurological health and mental well-being hasdeclined not insignificantly. To put the point another way, the consequences of theoffending for Mr McAlister have extended well beyond the stress and anxiety thatwould usually attach to someone facing charges of this nature, and the related courtprocess.[56] Once personal mitigating factors are taken into account, I would categorise thegravity of Mr McAlister's offending as moderate. I therefore disagree with the Judge'scharacterisation that even once all personal mitigating factors are taken into account,the gravity of the offending is still serious.24 I should emphasise, however, that I have24 Police v McAlister, above n 4, at [30].had the benefit of further materials filed on the appeal which were not before the Judgein the District Court.[57] Turning to the consequences of a conviction, it is clear that because of thenature of the visa that Mr McAlister holds, he is as a matter of statute liable todeportation (pursuant to s 161 of the Act). The unchallenged expert evidence is thatonce the Immigration New Zealand officials become aware of Mr McAlister'sconvictions, a report will be prepared for the Minister of Immigration, with the optionsbeing cancelling Mr McAlister's deportation liability, suspending deportation liabilityfor a period of up to five years on conditions, or to issue a deportation notice. Furthermaterial from the immigration expert put before the Court on the appeal states that itis "almost certain" that a deportation notice will be issued.[58] As the District Court Judge noted, it would then be open to Mr McAlister toappeal against the issue of a deportation notice (within a period of 28 days of beingserved with such a notice). Any such appeal would be limited, however, tohumanitarian grounds. The respondent accepts that there would not be a strong basisfor a successful appeal. At the appeal hearing before me, Ms Wilkinson accordinglyaccepted that deportation itself is a real and appreciable risk of a conviction, and thatan "obvious flow on consequence of deportation" would be the separation of thefamily unit.[59] In Rahim, the Court of Appeal noted that the reluctance of the courts tointervene in immigration matters "is most often evident where the outcome cannotreasonably be predicted."25 In such cases, the consequences of a conviction will be"the risk that the offender's immigration status or ability to travel overseas maychange, or that disciplinary action, or some obstacle to qualification or employment,may occur."26 In this case, the outcome can be reasonably predicted, in thatMr McAlister's immigration status will as a matter of certainty change, as a result ofhim automatically being liable for deportation pursuant to s 161 of the Act.25 Rahim v R, above n 14, at [29].26 At [29] (emphasis added).[60] This case is therefore similar to the facts in Rahim where the "expert opinionestablishes that the real and appreciable risk is significantly higher than the mereprospect of deportation".27 To put the point another way, in this case, there is a realand appreciable risk of deportation, rather than a real and appreciable risk of a prospectof deportation.28 The latter type of case tends to arise where there remains somediscretionary element on the part of Immigration New Zealand officials as to whetheror not a person will become liable for deportation (or where the evidence put beforethe court does not enable the court to assess the risk of deportation).[61] Like in Rahim, the real and appreciable risk of deportation would be"devastating" for Mr McAlister and his family.29 In Rahim, the Court of Appealcharacterised the seriousness of Mr Rahim's offending as low level, after taking intoaccount that he made extensive efforts to atone for his uncharacteristic behaviour.Contrasted with the "extremely adverse consequences of a conviction for Mr Rahimand his family", the Court held that "the outcome of the proportionality evaluationclearly favours a discharge without conviction".30[62] In this case, Mr McAlister's offending is of course not appropriatelycategorised as low level. As noted, it is moderate. The proportionality exercise istherefore not as "clear" as it was in Rahim. I was nevertheless of the view that theproportionality assessment still led to the conclusion that the consequences of aconviction would be out of all proportion to the gravity of Mr McAlister's offending.Ultimately, and because Mr McAlister would face a permanent prohibition of re-entering New Zealand, it is a real and appreciable risk that that he will be permanentlyseparated from his wife and young children, or at least separated from them until theyare in a position to travel independently to wherever he may be living at any giventime. As noted, Mr McAlister's biological daughter is only three years old, and hiswife's children from a prior relationship, to whom he is a father figure, are also veryyoung. I agree with Walker J's observations in Police v D'Souza that it would beinappropriate to assume that Mr McAlister's wife, who is a New Zealand citizen, andtherefore having relationship and other connections in this country, together with her27 At [30].28 As noted earlier, counsel for the respondent accepted this.29 At [30].30 At [33] (emphasis added).children, would give up their lives in New Zealand to the extent that the Court coulddiscount the likelihood of separation.31[63] Accordingly, it is on the proportionality assessment where I part company withthe District Court Judge, noting again that I have had the benefit of additional materialbefore me on the appeal. I agree with the Judge's comment that "[i]t can't be rightthat in any case where deportation is an expected consequence that a discharge shouldresult."32 What is required in any given case is an assessment of whether theconsequences of a conviction are out of all proportion to the gravity of the offending.That is what I concluded would be the case here.[64] For completeness, I observe that in conducting the proportionality assessment,the Judge described Mr McAlister's offending as "really serious offending" and as"grave".33 It strikes me that in describing the offending in that way for the purposesof the proportionality assessment, the Judge placed too little weight on personalmitigating factors (that description of the offending effectively mirroring the Judge'searlier description of the gravity of the offending before personal mitigating factorswere taken into account).[65] For these reasons, I allowed Mr McAlister's appeal.[66] As reflected in my minute issued following the appeal hearing on 24 May2022, I quashed Mr McAlister's convictions and granted a discharge withoutconviction pursuant to s 106.____________________________Fitzgerald J31 Police v D'Souza [2018] NZHC 1317 at [23].32 Police v McAlister, above n 4, at [41].33 At [40] and [41].