K v NZ POLICE [2023] NZHC 3641

K v NZ POLICE [2023] NZHC 3641 [12 December 2023]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.htmlIN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2023-485-70[2023] NZHC 3641BETWEEN KAppellantAND NEW ZEALAND POLICERespondentHearing: 7 December 2023Counsel: C Shade for AppellantM K Story for RespondentJudgment: 12 December 2023JUDGMENT OF ELLIS J[1] Mr K is an Indian citizen who came to New Zealand with his wife andtwo-year-old daughter in June 2016. Mr K had an Essential Skills Work Visa andworked here as a computer engineer. He planned to apply for permanent residency inFebruary 2019.[2] But on 2 January 2019 Mr K struck his wife during an argument about cookingsome rice.11 According to the Summary of Facts to which Mr K later pleaded guilty, he slapped his wife onceon the left cheek and twice on the right cheek. As she tried to leave, he struck her across the backof her body. The Summary of Facts also records that Mr K told Police he had slapped his wifeafter she had kicked him.[3] Mr K and his wife separated soon afterwards. Mr K continued to support hiswife and child financially, but custody issues required the intervention of the FamilyCourt. Orders were made permitting Mr K to have unsupervised overnight contactwith his daughter every other weekend and (on the weeks he did not have her for theweekend) overnight on Mondays.[4] On 2 May 2019 Mr K pleaded guilty to a charge of assault on a person in afamily relationship.2 He made an application for a discharge without conviction unders 106 of the Sentencing Act 2002 on 21 June 2019. Sentencing was scheduled for19 July 2019.[5] But on 15 July 2019, two more serious charges were laid against Mr K. Thesecharges were the result of a further complaint first made by his wife after theirseparation (towards the end of February 2019) in which she alleged Mr K had sexuallyoffended against her the previous year. The allegations resulted in Mr K facing onecharge of sexual violation by unlawful sexual connection and one charge of attemptedsexual violation.[6] Mr K subsequently received legal advice that a discharge without convictionon the assault charge was no longer an option.3[7] In September 2020, following a trial before Judge Hastings and a jury, Mr Kwas convicted of the two more serious charges and remanded in custody. The Judgelater sentenced Mr K to three years and nine months' imprisonment on the two seriouscharges and to a concurrent sentence of one-month's imprisonment for the originalassault charge.42 Crimes Act 1961, s 194A (maximum penalty of two years' imprisonment).3 As the Court of Appeal later recorded, Mr K says his wife fabricated the allegations to defeat hischances of obtaining a discharge without conviction on the assault charge, to bolster a case shehad brought in the Family Court seeking sole care of their daughter, and to have him deportedwhile she obtained permanent residency for herself and the child; K (CA719/2020) v R [2021]NZCA 574 at [12].4 R v [K] [2020] NZDC 24835; My understanding is that, upon sentencing, Judge Hastings alsomade a final protection order in favour of Mr K's ex-wife (the complainant) which remains.[8] But on 3 November 2021, the Court of Appeal quashed Mr K's convictions onthe two serious charges.5 After spending 427 days in custody, Mr K was released fromprison on 11 November 2021.[9] A Judge alone retrial on those charges took place in mid-May 2023 and, on22 May, Mr K was acquitted by Judge Mika.6 Soon after that he left New Zealand forIndia because his Essential Skills Work Visa had, in the meantime, expired. He leftbehind his estranged wife and their child, whom he had been unable to see since hewas first imprisoned in September 2020. Since then, Mr K's wife has opposed allcontact with his daughter, including the sending of cards and gifts. There is a hearingin Family Court scheduled for January 2024 to decide contact issues.[10] So Mr K now seeks to appeal his conviction and sentence on the assault charge.He says it was always his intention to apply for a discharge without conviction andthat that is the appropriate outcome now. He wishes very much to come back toNew Zealand to work, and to have a relationship with his daughter, who is now nine.He is concerned that he will be denied a further visa if his conviction is maintainedand that his ex-wife will prevent any remote contact that may be ordered by the FamilyCourt.Extension of time[11] Leave to appeal is required to bring the appeal because it is quite significantlyout of time. In light of the rather unusual history of the matter leave is not opposed bythe Crown. It is in the interests of justice to grant leave and I do so accordingly.Fresh evidence[12] Mr K also seeks leave to adduce further evidence on the appeal: an affidavitsworn by him and the affidavit of immigration lawyer, Mr Livingston. Again, theCrown very fairly does not oppose. The Court of Appeal has observed that evidencefrom lawyers specialising in immigration is "frequently helpful" when considering the5 K (CA719/2020) v R, above n 3.6 Police v [K] [2023] NZDC 9680.question of a discharge.7 Mr K's affidavit provides an update on his current familialand immigration circumstances. I am satisfied that the evidence is fresh, credible andcogent. Again, I grant leave accordingly.Approach on appealJurisdiction[13] The jurisdiction to hear an appeal where an appellant seeks a discharge withoutconviction in circumstances where that outcome was not sought at first instance wasdiscussed by the Court of Appeal in R v Bedford.8 The Court said:9[16] In Ho v R, Mr Ho had been convicted of two assaults in the DistrictCourt where he had not sought a discharge without conviction. He appealedto the High Court on the ground that he should have been discharged withoutconviction. That appeal was dismissed. In this Court, Mr Ho submitted thatthe High Court erred in law in ruling that the failure to make an applicationfor a discharge without conviction in the District Court precluded raising theissue on appeal. The Court put to one side whether the High Court was correctto refuse to entertain an application for discharge without conviction whenthere had been no such application in the District Court. The Court said itwould assume, for the purpose of the appeal, that it may be appropriate toconsider granting a discharge on appeal where there are changes incircumstance or fresh evidence becomes available.[17] A number of High Court decisions have concluded that the failure toapply for a discharge without conviction at first instance is not fatal. Theynote that s 232 of the Criminal Procedure Act 2011 provides for an appealagainst conviction if a miscarriage of justice has occurred for any reason.Section 11(1)(a) of the Sentencing Act 2002 imposes a mandatory obligationon a court to consider discharging an offender without conviction ifappropriate.[18] We are satisfied that, had Mr Bedford been made aware of theimmigration consequences for his family of a conviction, he would haveactively sought a discharge without conviction. Had he done so, there was apossibility of a different outcome. We accept in those circumstances it isarguable that there has been a miscarriage of justice. We therefore approachthe appeal on the basis that an appellate court does have jurisdiction toconsider an appeal against conviction and sentence on the grounds theoffender should have been discharged without conviction where there is achange of circumstance or where fresh evidence becomes available, even ifthere was no such application at first instance.7 Sok v R [2021] NZCA 252 at [53].8 Bedford v R [2021] NZCA 395.9 Citations omitted.[14] In the present case, there is (as I understand it) no dispute that Mr K intendedinitially to apply for no discharge without conviction but did not do so because he wasto be sentenced on other, more serious charges, as well. The fact that he was latersuccessful in appealing his convictions on those other charges, and then acquitted ofthem, is plainly a material change of circumstances.[15] I agree with Ms Shade that the change is one that can be said to give rise to amiscarriage because Mr K was effectively deprived of the opportunity to apply for adischarge without conviction on the assault charge. So the question really becomeswhether that was the right sentence here.Discharges without conviction[16] Section 106 of the Sentencing Act 2002 authorises the court to discharge anoffender without conviction, unless required by statute to impose a minimumsentence.10 A discharge under s 106 is deemed to be an acquittal.11 But s 107 providesthat the court must not discharge an offender without conviction unless satisfied thatthe direct and indirect consequences of a conviction would be out of all proportion tothe gravity of the offence.[17] In Prasad v R, the Court of Appeal set out the three steps that need to be takento make the relevant assessment under s 107:12(a) identification of the gravity of the particular offence, taking intoaccount all aggravating and mitigating factors of the offending and theoffender;(b) identification of the direct and indirect consequences of conviction;and(c) a determination of whether those consequences are "out of allproportion" to the gravity of the offence.[18] There must be a "real and appreciable" risk that any relevant consequence willhappen in the future.1310 Sentencing Act 2002, s 106(1).11 Sentencing Act, s 106(2).12 Prasad v R [2018] NZCA 537 at [11].13 Prasad v R, above n 12, at [11].[19] Where the s 107 threshold is met the court retains a residual discretion todecline a discharge under s 106.14Gravity of the offence[20] As noted earlier, when sentencing Mr K for the more serious charges followinghis first trial Judge Hastings also imposed a concurrent sentence of one month'simprisonment on the assault charge, noting that it was "more relevant as evidence ofthe nature of the relationship".15 No other comment was made regarding theseriousness of the offence or about Mr K's culpability.[21] Based on the Summary of Facts, I agree with Ms Shade that the offending canfairly be seen as being of low to medium gravity. Although family violence is not tobe countenanced, it seems the slaps here constituted a brief and isolated incident. Thegravity is further reduced by the mitigating factors personal to Mr K. It seems plainthat these factors can include post-offending matters and rehabilitative steps.16 So itis possible to have regard to Mr K's guilty plea, previous good character, remorse andrehabilitative efforts—including his completion of a Non-violence Programme. Aswell, Mr K spent 427 days in prison prior to his sexual violence convictions beingoverturned, although I am cautious about placing too much weight on that.[22] I accept Ms Shade's submission that—but for his sentencing on the moreserious charges—it is likely that Mr K would (at worst) have received acommunity-based sentence on the assault charge. Overall, therefore, I assess thegravity of the offending as low.Direct and indirect consequences of conviction[23] The key consequence for Mr K concerns his ability to obtain a new work visaand return to New Zealand. He says, and I am inclined to accept, that obtaining a visais likely to be the only way to guarantee Mr K will be able to have contact with his14 Prasad v R, above n 12, at [31].15 R v [K], above n 4, at [10].16 See, for example, Mathieson v Police [2019] NZCA 406 at [15] and Chaudhary v Police [2021]NZHC 898 at [12]–[13].daughter (in person or remotely).17 It is therefore necessary to be clear about what thelegal position is in that regard.The decision in Sok[24] In its decision in Sok v R the Court of Appeal referred to the primary andtertiary legislation relevant in such a case, saying:18[23] We refer also to the Immigration Act 2009 (the Act) and the[Immigration New Zealand (INZ) Operational] Manual, in which is foundinstructions authorised under sections 22–25 of the Act. By way of example,s 22(6) provides that rules or criteria relating to visa eligibility may include"matters relating to character". Instruction A5.1 of the Manual specifies thatapplicants for all visas "must be of good character". The Manual goes on toprescribe that character checks must be carried out on applicants for atemporary entry visa who are over 17 years of age and intend to stay inNew Zealand for 24 months or more, or on any other applicant for a temporaryentry visa where INZ decides it is necessary.[24] The Act precludes a visa for persons convicted within the preceding10 years of an offence for which they were sentenced to a term ofimprisonment of 12 months or more. Applicants for a temporary entry classvisa who have been convicted of certain other offences do not face anautomatic prohibition. Rather, they are normally ineligible unless granted acharacter waiver. Instruction A5.45 provides that:A5.45 Applicants normally ineligible for a temporary entry classvisa unless granted a character waiverApplicants who will not normally be granted a temporary entry classvisa, unless granted a character waiver include any person who:(c) at the time of application:(i) has been charged with an offence, which onconviction, would make section 15 of theImmigration Act 2009 apply to that applicant; or(ii) is under investigation for such an offence; or(iii) is wanted for questioning about such an offence; or(d) has been convicted at any time of:(i) any offence for which they have been imprisoned; or17 Mr K's evidence about this was supported by Ms Shade's advice from the bar. She is also actingfor Mr K in the Family Court proceedings.18 Sok v R, above n 7 (citations omitted).(ii) an offence in New Zealand for which the court has thepower to impose imprisonment for a term of threemonths or more; orIt will be seen that Mr Sok would normally require a character waiver to obtaina visa because the offence of which he was convicted carries a maximum termof more than three months' imprisonment.[25] The Act and Manual do not specify what must be considered whenassessing character in a given case. The Manual does state that applicants fora temporary entry class visa must provide a police certificate "if required". Itdoes not require that they declare offences that have not resulted inconvictions. Nor does it preclude INZ taking into account conduct that wasdisposed of otherwise than by conviction, including conduct that resulted in adischarge.[26] The Manual provides in Instruction A5.45.1 that an immigrationofficer must not automatically decline an application for a character waiver.Rather, the officer must make and record a reasoned decision whether to waivethe requirement or not.[25] A little later in the judgment the Court observed:19The central premise of the application for discharge was that, absent theconviction, Mr Sok would not require a character waiver and so would likelybe granted a work visa. This claim may have had some merit previously tothe extent that, notwithstanding what the legislation and Manual have to sayabout character requirements, INZ does not in practice require a characterwaiver where a person who has committed an offence carrying a maximumterm of more than three months imprisonment is subsequently dischargedwithout conviction. [26] In that case, however, the horse had already bolted: Mr Sok's application for avisa and a character waiver had already been declined, the time for appealing hadexpired and he was liable for deportation. Although it was still possible for Mr Sok toapply for a temporary visa from offshore, the Court said:20[62] The difficulty with this argument is that it invites the Court to grant adischarge in order that Mr Sok need not disclose his offending to INZ whenhe makes an offshore application. Courts usually refuse to grant dischargessought for that purpose. It is no answer to point to INZ processes under whicha character waiver may not be required for a person without convictions, forthe good character requirement remains and the offending is a relevantconsideration. As noted the Manual prescribes that character checks mustbe carried out and INZ may consider conduct that resulted in a discharge. In19 At [31] (emphasis added).20 Citations omitted.any event, the evidence does not persuade us that if a discharge were grantedINZ would overlook the offending when considering an offshore application.[63] We will assume that the absence of a conviction could have a positiveinfluence on the mind of a decision-maker. We recognise too that inBong v R, in which the offender's immigration status also changed for theworse between charge and appeal, this Court accepted INZ would learn of theoffending but found that a discharge might nonetheless substantially improvehis prospects of obtaining a visa. It seems the Court accepted Mr Bong'sapplication for a temporary (visitor) visa had failed because of the conviction,which is not the position on the facts before us. It appears too that the Courtmay have accepted Mr Bong would likely no longer fail INZ's characterrequirements if discharged. We have accepted on the material before us thatwhile Mr Sok would not be presumptively ineligible if discharged, the goodcharacter requirement must still be met. The overall gravity of his offendingis greater than Mr Bong's and INZ has already assessed his character.[64] It follows that there is no reason to think a discharge would materiallyalter Mr Sok's prospects of obtaining a visa from offshore. We are notprepared to accept that failure to obtain a new visa would be a consequence ofconviction.Mr Livingston's evidence[27] The summary in Sok is broadly supported by the evidence given byMr Livingston in this case, although he did not address the wider characterrequirement or the requirement for a Police certificate, which is mandatory if theapplication is for a work visa. As will be evident from the discussion above, thosematters were of central importance in Sok.[28] By way of his own summary, Mr Livingston's evidence was that the "likelysequence of immigration consequences that will flow from a conviction" are:a) The defendant can apply for a work or visitor visa, however, bothapplications will require him to tell INZ about the conviction andapply for a character waiver;b) INZ will not normally grant visas where the applicant has beenconvicted at any time of an offence where the court has the power toimpose imprisonment for a term of three months or more;c) The defendant will have to establish compelling circumstances toestablish an exception to the rules and obtain a character waiver;d) INZ will decline the application in the absence of compellingcircumstances;e) If the application is declined, the defendant will not be able to returnto New Zealand and be reunited with his daughter;f) The defendant has no right of appeal or reconsideration against INZ;g) The defendant can reapply for visas but this is only practical if therehas been an improvement in circumstances (e.g., an increased periodof time with no offending);h) The defendant will have to repeatedly declare his conviction whenapplying for future visas including residence.[29] Mr Livingston concluded:17 If a discharge without conviction were granted, the defendant does nothave to disclose a sentence of discharge without conviction to INZduring either a visitor or work application or when applying forresidence. Based on his background, he appears likely to obtain awork or visitor visa. A consequence of the conviction is therefore thatthese positive outcomes would be jeopardised to a reasonable degree.Discussion[30] I am prepared to proceed on the same basis as set out by the Court of Appealat [63] of Sok, a case specifically relied upon by the Crown here. In other words, I amprepared to assume that—despite the more general character requirement—theabsence of a conviction could have a positive influence on the mind of an INZdecision-maker. Even if INZ learns of the offending a discharge might nonethelesssubstantially improve Mr K's prospects of obtaining a visa.[31] The ultimate refusal of a discharge without conviction in Sok, however, turnedon the Court's view that—largely because of the gravity of the offence committed byMr Sok—there was no reason to think a discharge would materially alter Mr Sok'sprospects of obtaining a visa from offshore.21 The offence committed by Mr K is of asignificantly less serious kind.[32] As well, there is a material difference between Mr K's family circumstancesand those of Mr Sok. As already noted, I accept that Mr K's prospects of having any21 Mr Sok had been initially charged with wounding with intent to cause grievous bodily harm. Thevictim was a five-month-old baby. Although Mr Sok eventually pleaded guilty to a lesser chargeof injuring with reckless disregard for the baby's safety the factual reality was that the childsuffered a "significant head injury" and serious ongoing effects. The Court observed that despitethe guilty plea there was a continued reluctance to take responsibility for the offending althoughthere were signs of remorse and rehabilitative steps had been taken. The Court concluded theDistrict Court Judge had been "plainly right to characterise this as serious offending', whichengaged s 9A of the Sentencing Act; Sok v R, above n 7, at [4], [8] and [12].kind of contact with his daughter will be significantly diminished if he is unable toreturn here. By contrast, Mr Sok's family was said to be "fractured already" with somemembers of it already living in Cambodia.22[33] So although I acknowledge Ms Storey's point that the now orthodox approachis for the courts to leave the assessment of the immigration consequences of offendingor a conviction to the immigration authorities, this is one of those cases where thes 107 disproportionality is clear enough for the Court to intervene.23 In the ratherunusual circumstances of this case I consider that the consequences of a conviction forMr K would be disproportionate to the gravity of the relevant offence. His convictionfor assault is therefore quashed. He is discharged without conviction instead.Rebecca Ellis JSolicitors:Te Aro Law Ltd, WellingtonCrown Law, Wellington22 Sok v R, above n 7, at [22].23 As it was in Nanda v Police [2023] NZHC 415 at [15]; see also Sok v R, above n 7, at [51].