SUNDA v NEW ZEALAND POLICE [2019] NZHC 756

SUNDA v NEW ZEALAND POLICE [2019] NZHC 756 [9 April 2019]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2019-485-8[2019] NZHC 756BETWEEN KARANVIR SUNDAAppellantAND NEW ZEALAND POLICERespondentHearing: 9 April 2019Counsel: E M Bransgrove for AppellantD M Helm for RespondentJudgment: 9 April 2019ORAL JUDGMENT OF CHURCHMAN JIntroduction[1] On 5 July 2018, Mr Sunda pleaded guilty to one charge of male assaultsfemale.1 He sought discharge without conviction, principally on the ground that therewas a real and appreciable risk that a conviction would result in his deportation andthat such a consequence would be out of all proportion to the gravity of his offending.[2] On 13 February 2019, Mr Sunda's application was dismissed by Judge Mill inthe Wellington District Court; he was convicted and ordered to pay a fine of $1,000.2Factual background[3] On the evening of 22 April 2018, Mr Sunda and his wife, the victim in thismatter, were at home. She was on the phone with her mother. The victim mentioned1 Crimes Act 1961, s 194(b); maximum penalty two years' imprisonment.2 Police v Sunda [2019] NZDC 2452.Mr Sunda's drug habits and he became upset, punching her once in the face beforegrabbing her by the arm with enough force to break the skin. Mr Sunda punched heragain in the face, causing her nose to bleed. He dragged her out of her chair and pulledher into the bathroom to get her to clean the blood off her face. When she called afriend for help, Mr Sunda grabbed her phone from her hand and disconnected the call.He then dragged her back to the bedroom, putting her to bed and telling her to go tosleep. As she tried to get out of bed, Mr Sunda would push her back down.[4] Eventually, the victim's friend arrived and took her to the police station toreport the incident.[5] As a result of the assault, the victim, who was 14 weeks' pregnant at the time,sustained a bloodied nose, a cut inside her mouth, and bruising to her arms and face.District Court decision[6] The Judge determined that there were no mitigating circumstances in terms ofthe offending, finding that it "was sustained violence over a period of time" againsthis pregnant wife.3 He did, however, note that there were a number of personalmitigating circumstances:4First of all, you have no previous convictions and therefore are otherwise ofgood character. You are attending a programme. I have got letters from theprogramme to say that you are attending that programme and the progress issatisfactory. That is a programme to address violence and I commend you forthat.[7] He further noted that the victim supported a discharge without conviction, thatshe did not have any concern for her or her daughter's safety, and no longer wanted tohave a protection order. The victim had said that it was a one-off thing, that Mr Sundawas really protective and that there is now a lot more support around him.5[8] The Judge stated:[8] What I conclude from this is this is a serious assault being a sustainedassault over a period of time against a vulnerable victim. It was not a3 At [6].4 At [6].5 At [7].momentary lapse of control and it was not trivial at all. So it is a seriousassault which carries a maximum penalty of two years' imprisonment.[9] In terms of the consequences of a conviction, the Judge considered thelikelihood that Mr Sunda might become liable for deportation, taking into account theevidence from Mr Laurent, a lawyer specialising in immigration law.6 He also referredto the case of Zhang v Ministry of Economic Development in which Asher J madecomments to the effect that matters such as these are best left to the immigrationauthorities.7 The Judge determined that there was no certainty as to whether Mr Sundawould be deported.8 He concluded:[22] The mitigating factors in this case are very significant indeed but notsufficient for me to conclude that exposing you to the process and possibilityof deportation is out of all proportion to the seriousness of the offending.The appeal[10] Mr Sunda appeals his conviction and sentence on the basis that:(a) the Judge did not properly follow the three-stage test set out in R vHughes, in that he did not take into account the significant mitigatingfactors of the defendant when assessing the overall gravity of theoffending;9(b) the Judge erred in finding that the assault was sustained and did notrepresent a momentary lapse of judgement;(c) for these reasons, the Judge's assessment of the gravity of the offendingwas overstated;(d) the Judge erred in finding that there was only a "possibility ofdeportation" if Mr Sunda was convicted, as the expert evidence before6 At [19].7 Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-000452, 17 March2011.8 Sunda v Police, above n 2, at [20].9 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.the Court confirmed that there was (and still is) a real and appreciablerisk of such consequence occurring; and(e) the real and appreciable risk of Mr Sunda's deportation upon convictionwas out of all proportion to the overall level of offending in this case,such that Mr Sunda should have been discharged without conviction.[11] The Crown opposes the appeal, arguing that:(a) there was no material error by the Judge in entering a conviction in thecircumstances; and(b) the sentence imposed was available and appropriate.Relevant law[12] Section 106 of the Sentencing Act 2002 (the Act) provides that if a person whois charged with an offence is found or pleads guilty, the Court "may discharge theoffender without conviction, unless by any enactment applicable to the offence theCourt is required to impose a minimum sentence".[13] The application of s 106 is guided by s 107 which provides as follows:107 Guidance for discharge without convictionThe court must not discharge an offender without conviction unless the courtis satisfied that the direct and indirect consequences of a conviction would beout of all proportion to the gravity of the offence.[14] An appeal against the refusal to grant a discharge without conviction is acomposite appeal against conviction and sentence.10 The basis for determining anappeal against a refusal to grant a discharge without conviction is whether amiscarriage of justice has occurred:1110 Jackson v R [2016] NZCA 627 at [6]-[16].11 At [12].(a) by virtue of a material error by the sentencing Judge in entering aconviction; or(b) as a result of an error by the Judge in applying the principles ofdischarging an offender without conviction under s 107 of the Act.[15] As stated by the Court of Appeal in R v Hughes, s 107 "provides a gatewaythrough which any discharge without conviction must pass".12 The Court noted thatsuch an appeal is not an appeal against the discretion of the Court. The Court said:13[11] The decision as to whether the test under s 107 has been met is not amatter of discretion. It is a matter of fact requiring judicial assessment, whichcan be subject to appeal on normal appellate principles ... The discretionarypower of the court to discharge without conviction under s 106 arises andexists only if the court is satisfied that the s 107 threshold has been met.[16] The approach to be adopted by an appeal court in relation to s 107 has beensummarised as:14[28] An appeal against a refusal to grant a discharge without conviction isby way of rehearing. Normal appeal principles apply as set out in Austin,Nichols & Co Inc v Stichting Lodestar. In Heke v R, the Court of Appealconfirmed the application of an Austin, Nichols approach in criminal appealswhere the decision under appeal involves a matter of fact requiring judicialassessment. Later in Paia v R, the Court of Appeal confirmed the approachtaken in Heke. Thus, when it comes to a decision under s 107, the appellatecourt must come to its own view of the merits; the weight the appellate courtgives to the original decision is a matter of judgment; and that deference tothe assessment of the original decision-maker is not necessary, even where theassessment requires a value judgment. If the appellate court considers that theoriginal decision is wrong, it must act on that opinion.[17] More recently, the Court of Appeal, speaking of the s 107 test, said:15[11] It is settled that a court considering a discharge under s 106 of theSentencing Act 2002 should follow a three-step process addressing theguidance given in s 107. These steps are:(a) identification of the gravity of the particular offence, takinginto account all aggravating and mitigating factors of theoffending and the offender;12 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8].13 At [11].14 Denden v Police [2014] NZHC 1814 (citations omitted).15 Prasad v R [2018] NZCA 537 (citations omitted).(b) identification of the direct and indirect consequences ofconviction; and(c) a determination of whether those consequences are "out of allproportion" to the gravity of the offence.Only if that threshold is met can the court move to consider the residualdiscretion under s 106. There must be a "real and appreciable" risk that anygiven consequence will happen. This standard recognises that the court isassessing the likelihood of something that may happen in the future.[18] In terms of the gravity of the offence, the Court of Appeal in Z (CA447/2012)v R summarised the correct approach to take as follows:16[W]hen considering the gravity of the offence, the court should consider allthe aggravating and mitigating factors relating to the offending and theoffender; the court should then identify the direct and indirect consequencesof conviction for the offender and consider whether those consequences areout of all proportion to the gravity of the offence; if the court determines thatthey are out of all proportion, it must still consider whether it should exerciseits residual discretion to grant a discharge (although, as this Court said inBlythe, it will be a rare case where a court will refuse to grant a discharge insuch circumstances).[19] When considering the direct and indirect consequences of conviction on adefendant, the Court of Appeal stated that:17The Judge does not have to be satisfied that the direct and indirectconsequences will inevitably or probably occur; it is sufficient if he or she issatisfied there is a real and appreciable risk of such consequences.[20] The Court of Appeal recently confirmed in R v Smyth that: 18[12] It is not enough that the consequences of a conviction outweigh thegravity of the offending. Significantly more is required. The consequencesmust be out of all proportion to the gravity of the offending before the courthas jurisdiction to grant a discharge without conviction.[21] Once the Court is satisfied the disproportionality test has been met pursuant tos 107, it may then determine whether to order the discharge.1916 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27] (citations omitted).17 DC (CA47/2013) v R [2013] NZCA 255 at [43].18 R v Smyth [2017] NZCA 530.19 Z (CA447/2012) v R, above n 9, at [21]; R v Hughes, above n 6, at [8]-[12].Gravity of the offending[22] Counsel for Mr Sunda, Ms Bransgrove, acknowledges that his offendinginvolved violence against his pregnant wife, acknowledging that her pregnancy wasan aggravating factor that would need to be considered. She submitted that thedomestic violence context of the offending was not necessarily an aggravating factor.I reject that submission. In this case, as will commonly be the case in instances ofdomestic violence, the victim was in a vulnerable and dependent situation and thataggravates the nature of the offending.[23] Ms Bransgrove noted that the victim's injuries were not permanent, and thatshe did not require medical treatment. She submitted that Mr Sunda is not aninherently violent man, the assault being completely out of character with nopremeditation involved, and she noted that the couple have now reconciled.Ms Bransgrove submits that Mr Sunda has made considerable efforts to rectify hisoffending, receiving ongoing counselling once a week which is not limited just toanger management but also now focusses on how to be a supportive partner and parent.[24] In the District Court, Judge Mill noted that Mr Sunda had commenced on acounselling programme and he rightly commended him for doing that. Since the timeof the District Court hearing, it is to Mr Sunda's credit that he has completed thatprogramme and that he has also undertaken some counselling in relation to hisobligations in the family context. They are matters of some significance in terms ofmitigation.[25] As to other matters of mitigation, Ms Bransgrove submitted that the followingfactors reduce the gravity of the offending in this case:(a) Mr Sunda's early guilty plea. He pleaded guilty at the earliestopportunity;(b) the considerable efforts he has made to make amends for the harm hehas caused, including rehabilitation at his own initiative;(c) his expression of deep remorse for his actions;(d) the fact that Mr Sunda has no prior convictions. He can claim otherwiseto be a man of good character; and(e) the fact that the victim supports Mr Sunda's application for a dischargewithout conviction.[26] In relation to that latter matter, I note Ms Helm's submission that in the contextof domestic violence, it is not unusual for the Courts to experience a situation where avictim has reviewed her position, and while initially, as the victim in this case haddone, has expressed issues of concern as to her safety, but has modified her views withthe passage of time.[27] While the Judge undertook an analysis of the gravity of the offending,Ms Bransgrove submits that he did not provide any discount for what he had noted asbeing "very significant" mitigating factors relating to Mr Sunda. Ms Bransgrovesubmits that this is inconsistent with the approach in Z v R which requires that allrelevant aggravating and mitigating factors relating to the offending and the offendermust come into play when considering the gravity of the offence. She submits as such,the Judge did not properly apply the first limb of the three-stage test required unders 106. It is further submitted that he also failed to take into account Mr Sunda's earlyguilty plea and expression of remorse.[28] In terms of the offending itself, Ms Bransgrove submits that the Judge wasincorrect to find that the assault was "a sustained assault over a period of time" anddid not represent "a momentary lapse of control". She submits that the facts indicatethe assault was brief, without premeditation, and completely out of character, and thatthere is nothing to indicate that Mr Sunda's actions were anything but a momentarylapse of control.[29] Ms Helm, for the Crown, however, submits that the Judge correctly identifiedthe offending as being a sustained assault rather than a "momentary lapse of control",noting that Mr Sunda inflicted more than one punch to the victim's head and draggedher through the house, exerting a significant level of power and control over her. Sherefers to the Solicitor-General v Hutchison in which it was acknowledged that"[f]amily violence has become one of the scourges of New Zealand society".20 Iendorse that observation.[30] The Court of Appeal stated that violence occurring in the victim's home willnormally be treated as an aggravating factor, because such violence involves "inherentvulnerability" where one "cannot realistically or effectively lock the door against a co-occupant".21 Ms Helm submitted that the victim's vulnerability was further increasedin this case by the fact of her pregnancy. That matter is accepted by Ms Bransgroveand, while the victim's injuries were not serious, it was nevertheless open to the Judgeto conclude that the gravity of the offence was serious for its type.[31] The Crown accepts the factors identified by Ms Bransgrove as reducing theoverall seriousness of Mr Sunda's offending and acknowledges that, although theJudge identified the presence of significant mitigating factors, it is unclear whether heassessed the aggravating and mitigating factors of the offending and offender togetherso as to come to a decision on the overall gravity of the offending.[32] However, the Crown submits that if the first stage of the assessment fromZ (CA447/2012) v R is approached afresh, it is nevertheless open to the Court to findthat the overall gravity of the offending is at least moderate, having regard to theaggravating and mitigating factors identified above.[33] Ms Helm, in the course of her oral submissions, accepted that if the Courtassessed the overall gravity of the offending as being low, there was a strongerargument that the consequences were out of all proportion to the offending.[34] It is my view that this was a serious, prolonged assault on a vulnerable victim.However, once the significant mitigating factors are taken into account, the overallgravity of the offending is best described as moderate, which was recognised by theJudge in his decision to fine Mr Sunda $1,000 on an offence which carries a maximumpenalty of two years' imprisonment.20 Solicitor-General v Hutchison [2018] NZCA 162, [2018] 3 NZLR 420 at [27].21 At [27].Consequences of a conviction[35] I turn now to the consequences of a conviction.[36] Randerson J in Iosefa v Police described the correct approach to assessing theconsequences of conviction as follows:22[I]t is not necessary for the Court to be satisfied that the identified direct andindirect consequences would inevitably or probably occur. It is sufficient ifthe Court is satisfied that there is a real and appreciable risk that suchconsequences would occur.[37] He continued:23However, the nature and seriousness of the consequences and the degree oflikelihood of their occurring will be material to the Court's assessment ofwhether those consequences would be out of all proportion to the gravity ofthe offence.[38] In terms of the consequences of conviction, Ms Bransgrove notes that theJudge had accepted that a conviction for male assaults female would triggerMr Sunda's liability for deportation under s 161 of the Immigration Act 2009 and thiswould be a "very serious" consequence of his offending.24 The Judge concluded,however, that deportation was merely a possibility and that such matters were best leftto immigration authorities.25 Ms Bransgrove, relying on the affidavit provided byMr Laurent, submits that the Judge erred in finding there was only a "possibility" ofdeportation in Mr Sunda's case, and argues that Mr Sunda faces a real and appreciablerisk of deportation which would have the flow-on effect of breaking his family unitup. Furthermore, as he is the sole-income earner, his wife and daughter wouldundoubtedly face financial hardship were he to be deported. While there will bechecks and balances throughout the deportation process which might mitigate againstdeportation, deportation remains a likely or foreseeable outcome.[39] Secondly, Ms Bransgrove further submits that the Court is not always boundto leave immigration matters to the immigration authorities. She acknowledges that22 Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [34]; affirmed in DC v R[2013] NZCA 255 at [43].23 At [35].24 Police v Sunda, above n 2, at [10] and [15].25 At [21] and [22].the appellate courts have traditionally cautioned that there is a need for restraint whenconsidering consequences that are the domain of professional regulatory bodies.26However, Ms Bransgrove submits it is manifest in the jurisprudence that, in allsituations, the Court retains the overall discretion. She notes there is a body of recentcase law which is increasingly moving away from the traditional view that the Courtsought not usurp the role of statutory bodies such as Immigration New Zealand, andshe brings to the Court's attention a number of cases in which it was contemplated thatimmigration consequences are capable of supporting a s 106 application.27 I discusssome of these cases below.[40] The Court acknowledges that it is a well-established principle that a "real andappreciable risk" that a consequence of a conviction will ensue is all that is required.It is, however, noted that the nature and seriousness of those consequences, and thedegree of likelihood of their occurring, will be material to the Court's assessment ofwhether they would be out of all proportion to the gravity of the offence.28[41] The Crown acknowledges that Mr Laurent is a suitably qualified expert butsubmits that, notwithstanding his evidence, the outcome of the deportation processcannot reasonably be predicted.29 The Crown submits that it was open to the Judge toconclude that the assessment of liability for deportation should be determined by therelevant authorities, in accordance with Zhang v Ministry of Economic Development.30Although Mr Sunda would be liable for deportation if a conviction is entered, theCrown submits the Judge correctly identified that statutory process that would beavailable to challenge the deportation. The Crown submits that this case is comparableto Singh v Police in which Toogood J, in the context of an assault against a vulnerablevictim, concluded that it was more appropriate to leave the matter to the immigrationauthorities. In that case Toogood J said:3126 A v R [2011] NZCA 328; Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453; Stewart v Police [2015] NZHC 165.27 Goody v R [2017] NZHC 2172; Chang v Police [2017] NZHC 1119 at [15]; Tao v Police [2015]NZHC 3324; T v Police [2016] NZHC 1773; Renshaw v Police [2014] NZHC 1171 at [26]-[28];and Chand v Police [2017] NZHC 1119 at [15].28 Maraj v Police [2016] NZCA 279 at [31].29 Rahim v R [2018] NZCA 182 at [29].30 Zhang v Ministry of Economic Development, above n 26.31 Singh v Police [2019] NZHC 417.[47] Mr Singh has avenues of challenging the decision to serve him with adeportation liability notice. He has already made use of one of these and hissuccess is undetermined at present. I consider this to be a situation where it ismore appropriate to leave the matter to the immigration authorities. They willbe fully aware of the nature of Mr Singh's offending and the sentence hereceived. It is not unreasonable to expect that the decision-making undertakenby the relevant immigration authorities, supervised by their own processes ofreview and appeal, will be fair and measured. What has followed fromMr Singh's conviction so far, insofar as his immigration status is concerned,is a routine matter of procedure. The gravity of his offending is not so slight,and the hardship which he anticipates by the risk of deportation is not so grave,that this Court should feel compelled to subvert that procedure.[42] There are a number of analogous cases, of which I will discuss two. Firstly,there is Chand v Police in which the appellant had been convicted of male assaultsfemale after pulling his pregnant wife's hair, causing her to fall down some stairs andsustain bruises.32 He received notification that deportation was being contemplated.In the decision dealing with Mr Chand's application for leave to appeal, Brewer Jacknowledged that the Courts will generally leave deportation matters to theImmigration Service but said:[15] There will be cases where the s 106 discretion should be exercised andthe matter, therefore, not left for determination by the Minister ofImmigration. One case is Jeon v Police33. Ultimately, as with Jeon v Policeand similarly in Kumar v Police, it depends upon the gravity of the particularoffence.34[43] On appeal, it was accepted that deportation was likely unless a s 106application was granted.35 Additional factors at play in that case were that theappellant had become the sole caregiver of the child, and that, absent ministerialintervention, he would be deported because of a prior conviction.36 Muir J concludedthat he had "no hesitation in finding that, in the particular circumstances outlined theconsequences of conviction would be out of all proportion to the gravity of theoffence".3732 Chand v Police, above n 27.33 Jeon v Police [2014] NZHC 66 at [20].34 Kumar v Police [2015] NZHC 3293.35 Chand v Police [2017] NZHC 2188 at [12].36 At [33].37 At [34].[44] In R v Kumar, the appellant was convicted of a charge of assault with a weapon,the assault occurring in the context of the workplace.38 As a consequence of theconviction being entered, Mr Kumar had become liable for deportation. Wylie J notedthat, while deportation was not inevitable, it was a "real and appreciable" possibilityand that there were third party consequences for his wife and unborn child which wererelevant and could be taken into account.39 An order was made under s 106 that MrKumar be discharged without conviction.40[45] The Court does not need to be satisfied that Mr Sunda will inevitably bedeported; it is enough that there is a real and appreciable risk of this happening. It ismy view, in this case, contrary to the view of the District Court Judge, that deportationis indeed a real and appreciable possibility on the facts of this case. While theconsequences might not reach the level of that in Chand v Police, in that Mr Sunda isnot the sole carer of a young child, the consequences of deportation would impact notjust on him but on his wife and child which, as in R v Kumar, is a factor to be takeninto account.Proportionality[46] As to proportionality, Ms Bransgrove submits that the reduction of gravitythrough the mitigating factors I have discussed above, reduces the level of theoffending to such an extent that the real and appreciable risk of deportation as aconsequence of conviction would be out of all proportion to the offending.[47] The Crown submits that, the gravity of the offending being moderate, theconsequences of a conviction would not be out of all proportion to the gravity of theoffending and, therefore, the balancing exercise properly weighs against a dischargewithout conviction.[48] I have had the advantage which the District Court did not, of knowing thatMr Sunda has successfully completed not only the anti-violence counselling but alsocounselling in relation to his other responsibilities as a husband and father. That is a38 R v Kumar, above n 30.39 At [41]-[42] and [45].40 At [48].matter which also impacts on my assessment of the gravity of the offending in thiscase.[49] My conclusion is that, while the gravity of Mr Sunda's offending should becategorised as moderate, the consequences of a conviction would be out of proportionto the offending and would fall not solely on him but indeed more heavily would fallon his wife and infant child. Were he to be deported as a result of this conviction, hisfamily would either have to leave New Zealand with him or remain behind, likelyfacing financial hardship as a result. I am advised from the Bar by Ms Bransgrovethat in the event that Mr Sunda was deported, it is likely that his wife and child wouldremain in New Zealand. These could not be described as minor consequences of aconviction.Result[50] I am therefore satisfied that the Judge erred in his decision in that he did notgive sufficient weight to the mitigating factors in assessing the overall gravity of theoffending and he incorrectly concluded that there was only a possibility of Mr Sundabeing deported when there is, in fact, a real and appreciable risk that might happen. Itis my view that the consequences of a conviction in this case is out of proportion tothe overall gravity of the offending, albeit by a fine margin.[51] I would note that it will not be common where there is a case of sustaineddomestic violence that the Court will come to such a conclusion but in this case, Ibelieve it is the appropriate conclusion.[52] Accordingly, the appeal is allowed. Mr Sunda's conviction is set aside and anorder is made under s 106 of the Act that he be discharged without conviction.Churchman JSolicitors:John Miller Law, Wellington for AppellantCrown Solicitor's Office, Wellington for Respondent