KI ANUFE v NEW ZEALAND POLICE [2021] NZCA 253

KI ANUFE v NEW ZEALAND POLICE [2021] NZCA 253 [18 June 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA587/2020[2021] NZCA 253BETWEEN KI ANUFEAppellantAND NEW ZEALAND POLICERespondentHearing: 23 March 2021Court: Miller, Brewer and Dunningham JJCounsel: A S Bloem for AppellantMRL Davie for RespondentJudgment: 18 June 2021 at 11.00 amJUDGMENT OF THE COURTThe application for leave to appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] Mr Anufe seeks leave to bring a second appeal against refusal to grant adischarge without conviction on one charge of making an intimate visual recording.His application rests on what he says is his near-inevitable deportation and resultingfamily separation should he be denied a discharge.The offending[2] Mr Anufe worked in a retail warehouse in Onehunga. On 18 November 2019the victim, a customer, entered a disabled bathroom. Mr Anufe used his cellphone torecord her through a hole, about 70 mm in diameter and at shin height, as she preparedto use the toilet. We infer that he was apprehended because the victim noticed himsqueeze through a gap to get into a back room beside the toilet before she entered it.He admitted the offence and stated that he had done it more than 10 times during hisemployment at the warehouse.The sentencing[3] Judge Sinclair outlined the facts and summarised the test for a dischargewithout conviction.1 It is not suggested that she misdirected herself. She acceptedthat the offending sat at the low to moderate end of the spectrum, but it waspremeditated — she found that Mr Anufe had made the hole in the wall — and he hadfilmed people in this way more than 10 times.2 The victim's privacy was violated andthe effect on her was "adverse and profound".3 The offending also involved an abuseof trust. In mitigation, Mr Anufe had no relevant previous convictions and was ableto offer letters of support. He had undertaken 11 hours' community work and made adonation to a charity. He had also pleaded guilty at an early opportunity and wasprepared to offer emotional harm reparation.4[4] Turning to the consequences of conviction, the Judge noted that Mr Anufe was33 and a Samoan national in New Zealand on a residence class visa. He has one childand his wife, a New Zealand citizen, was pregnant with a second. Her parents residewith the couple and are financially dependent on them. The Judge referred to anaffidavit prepared by an immigration lawyer, Mr Garrett Wong, which stated that therewas a high risk Mr Anufe would be liable for deportation and would be unable toestablish the exceptional circumstances required for a humanitarian appeal. The Judgecited authorities which indicate that a court should be slow to intervene in deportation1 Police v Anufe [2020] NZDC 14261 [Sentencing notes].2 At [9]–[10].3 At [11].4 At [13]–[16].decisions, instead leaving them to the relevant authorities to decide.5 There were noother relevant consequences because Mr Anufe was unlikely to lose his current job.The first appeal court decision[5] Mr Anufe appealed to the High Court. He filed a second affidavit of Mr Wong,to substantially the same effect as the first. It confirmed Mr Wong's opinion that thereis a high likelihood a deportation liability notice will be issued.[6] Davison J dismissed the appeal, finding in a thoroughly reasoned decision thatthe consequences of conviction were not out of all proportion to the gravity of theoffending.6 The admission that Mr Anufe had behaved in this way previously pointedto premeditation and enhanced culpability.7 He denied having made the hole in thetoilet wall and the summary of facts was silent on the point, so the Judge did not treatthat as evidence of premeditation. But he had plainly exploited the opportunity thatthe hole presented. The offending was not due to a momentary lapse of judgment; hehad to identify a potential victim then set up his phone to record her. What followedwas a gross invasion of privacy which breached the trust of both the victim and theemployer. He could have shared the images. Against that, it was to his credit that headmitted the offending and pleaded guilty at an early stage. He had expressed remorseand offered to pay reparation. Overall, Davison J considered the offending moderatelyserious.8[7] The Judge noted that Mr Anufe is liable for deportation following convictionbecause he holds a residence class visa and had been convicted of an offencepunishable by a term of three months' or more imprisonment. That was a policydecision taken by the legislature, which left it to the immigration authorities to decidewhether deportation will actually occur. There was a real and appreciable risk that hisconviction would have consequences for his visa, but it could not be assumed thatdeportation would be the end result.9 A court must assume the immigration authorities5 At [24]–[25], citing Zhang v Ministry of Economic Development HC AucklandCRI-2010-404-453, 17 March 2011; Solicitor-General v Mohib [2016] NZHC 1908; andYalomatua v Police [2013] NZHC 530.6 Anufe v Police [2020] NZHC 2396.7 At [31].8 At [35].9 At [41].will carry out their responsibilities fairly and rationally, taking into account the natureand gravity of the offending and his personal circumstances, including the effects ofdeportation on him and his family. The Judge distinguished Rahim v R, in which thisCourt held that a discharge ought to be granted for an offender, the gravity of whoseoffending was low. In that case, the Judge reasoned, the real and appreciable risk ofdeportation was itself a disproportionate consequence.10The application for leave to bring a second appeal[8] Under s 237(2) of the Criminal Procedure Act 2011 this Court may grant leaveto bring a second appeal if satisfied that the appeal involves a matter of general orpublic importance or a miscarriage of justice may occur if the appeal is not heard.[9] Mrs Bloem for Mr Anufe submitted that the test is met because Davison Jincorrectly characterised the gravity of the offending as moderately serious and erredin the balancing test. Further, the Judge erred by concluding that the decision was bestleft to immigration authorities. He was wrong to follow the judgment of Asher J inZhang v Ministry of Economic Development;11 subsequent judgments, such as inRahim v R, Bong v R and R v Tang, support departure from this approach where theimmigration consequences are clear and include family separation.12 The Judge maynot have considered expert evidence (a second affidavit from Mr Wong) that there isa high risk not merely that Mr Anufe will be exposed to deportation but that he will infact be deported. It is necessary to consider the rights of children and New Zealand'sobligations under the United Nations Convention on the Rights of the Child, alongwith the Samoan custom of fa'a Samoa, which requires that Mr Anufe support hiswife's parents.[10] For the Crown, Mr Davie responded that Davison J was not wrong to find theoffending moderately serious, nor was he wrong to leave the deportation decision tothe immigration authorities. It is well-established that courts will generally avoidusurping those functions. There are rare cases in which a high likelihood ofdeportation may justify a discharge, but this is not such a case. The cases cited by the10 At [43]–[46].11 Zhang v Ministry of Economic Development, above n 5.12 Rahim v R [2018] NZCA 182; Bong v R [2020] NZAC 94; and R v Tang [2019] NZHC 2056.applicant in which this Court has granted discharges without conviction because of areal and appreciable risk of deportation are all distinguishable; they involvedoffenders whose offending was much less serious and/or were already required toleave New Zealand. In this case deportation is neither imminent nor guaranteed.Mr Anufe holds a residence visa, meaning that his conviction makes him liable todeportation but a separate decision must be made to issue a deportation order. He willremain in New Zealand until that decision is made. The circumstances on which herelies to seek a discharge, including his established life and family in New Zealand,will be considered in a fair and rational immigration decision-making process.Davison J did not overlook the expert evidence.Immigration status[11] Mr Anufe holds a residence class visa which was granted on18 September 2019. He is liable to deportation because he offended within weeksafter the visa was granted by committing an offence with a maximum penalty greaterthan three months' imprisonment.13 Additionally, under s 161(1)(b) of theImmigration Act 2009 the holder of a residence class visa is liable to deportation ifconvicted of an offence for which a court may impose imprisonment for a term of twoyears or more, provided the offence was committed not later than five years after thevisa was granted.[12] A residence class visa holder who becomes liable to deportation is notautomatically issued with a deportation liability notice. Mr Wong deposed that theprocess for deportation would involve immigration officers preparing a submission forthe Minister of Immigration to determine whether a notice should be served. Mr Anufewould have an opportunity to make submissions. If a notice were served, he wouldhave the right to appeal to the Immigration and Protection Tribunal on humanitariangrounds against his liability for deportation.14 The threshold is high; he would needto demonstrate exceptional circumstances. His family circumstances may not suffice.13 Immigration Act 2009, s 161(1)(a)(iii).14 Immigration Act, s 161(2).[13] Mr Wong did not discuss s 172 of the Act, under which the Minister may intheir absolute discretion cancel a person's deportation liability or suspend it subject tocompliance with conditions.No process error in the High Court[14] We agree with Mr Davie that there is no reason to think Davison J overlookedthe second affidavit of Mr Wong. That affidavit is in any event not materially differentto the first. In his first affidavit Mr Wong expressed the opinion that it is highly likelya deportation liability notice will be issued. He confirmed that view in his secondaffidavit.Liability to deportation not a disproportionate consequence[15] The conviction triggers Mr Anufe's liability to deportation under s 161.The corollary is that if he is discharged without conviction he will not be liable.We observe that deportation liability for holders of other classes of visa may rest onthe offending rather than the conviction.15[16] Davison J correctly recognised that Courts sometimes find exposure todeportation liability and its associated processes a disproportionate consequence ofconviction. We refer for example to Rahim v R.16 A discharge may be granted in suchcases independently of the likelihood that those processes will actually end indeportation.[17] It is not seriously arguable that this is a case in which exposure to deportationliability is a wholly disproportionate consequence of conviction. This case lacks themitigating features of the offending that were present in cases such as Kumar v Police,where the offending was a response to prolonged racial abuse and the defendant wasotherwise "of excellent character".17 In each of those cases the offending was a minor15 See Sok v R [2021] NZCA 252, which was argued in the same sitting as this application for leave.16 Rahim v R, above n 12. See also Bong v R, above n 12; Jeon v Police [2014] NZHC 66; andKumar v Police [2015] NZHC 3293.17 Kumar v Police, above n 16, at [26] and [29]. See also for example Rahim v R, above n 12, at[14]; and Jeon v Police, above n 16, at [4] and [12], both involving personal mitigating factorssuch as remorse.example of its type. This was calculated and repeated offending. But for theimmigration consequences there would be no question of a discharge.Deportation not a consequence of conviction[18] Mr Anufe argues that there is a real and appreciable risk he will be deported inconsequence of his conviction. His case for discharge ultimately rests on theproposition that the humanitarian consequences of deportation outweigh the gravityof his offending.[19] As we have explained, he holds a residence class visa, which distinguishes thiscase from those in which an offender is at risk of being denied a visa or is alreadyunlawfully in New Zealand. In this case a process must be initiated and followedthrough before he may be deprived of residency. The process is not mandatory and ithas not begun. He will have an opportunity to make submissions before a deportationliability notice is issued and a right of appeal lies to the Tribunal on humanitariangrounds. Decision-makers will examine the gravity of the offending, includingpersonal mitigating factors, and consider the undoubtedly important humanitarianconsequences of deportation. That being so, Davison J was correct to find that anyrisk of deportation is a consequence of the offending rather than the conviction andthe immigration consequences are a matter for immigration authorities.18[20] We recognise that courts have sometimes been willing to grant dischargeswhere it was thought that authorities would not consider the circumstances of theoffending.19 In such cases courts may find that deportation is a consequence ofconviction. However, that is not suggested here. Mr Wong's concern rather is thatauthorities will consider the circumstances and conclude, as the courts below did, thatthe offending was not minor.18 This approach was adopted in Sok v R, above n 15, at [47]; Zhang v Ministry of EconomicDevelopment, above n 5, at [24]–[25]; and Foox v R [2000] 1 NZLR 641 (CA) at [39].19 See the discussion in Sok v R, above n 15, at [49]. See also Clarabal v Police [2020] NZHC 1518at [17]; and Zhang v Ministry of Economic Development, above n 5, at [14].Decision[21] We do not think it seriously arguable that the courts below were wrong in thecircumstances of this case. The application for leave to bring a second appeal isdeclined.Solicitors:Crown Law Office, Wellington for Respondent