MOALA v NEW ZEALAND POLICE [2021] NZHC 1516

MOALA v NEW ZEALAND POLICE [2021] NZHC 1516 [24 June 2021]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2021-419-000031[2021] NZHC 1516BETWEEN MAASI TOETUU TUKIPILI MOALAAppellantAND NEW ZEALAND POLICERespondentHearing: 22 June 2021Appearances: S Bhardwaj for AppellantJ Williams for RespondentJudgment: 24 June 2021JUDGMENT OF LANG J[on appeal against conviction and sentence]This judgment was delivered by me on 24 June 2021 at 3.30 pm.Registrar/Deputy RegistrarDateSolicitors:Crown Solicitor, Hamilton[1] Mr Moala pleaded guilty in the District Court to a charge of assaulting a personin a family relationship, namely his wife. He also pleaded guilty to a charge of failingto answer his bail. On 25 June 2020 Judge J C Down declined an application byMr Moala to be discharged without conviction under s 106 of the Sentencing Act2002.1 The Judge then sentenced Mr Moala to nine months supervision and orderedhim to perform 100 hours community work. The Judge also required Mr Moala toundertake and complete counselling and treatment.[2] Mr Moala appeals against the Judge's decision declining to grant him adischarge without conviction.Leave to appeal out of time[3] Mr Moala did not file his notice of appeal until 19 May 2021. It was thereforefiled approximately ten months out of time. That is a lengthy period, and the Courtwould normally require a convincing explanation before granting leave to appeal outof time. Mr Moala has filed an affidavit in which he explains that he only had onebrief meeting with his former counsel, Ms Senar, after being sentenced. He said shedid not advise him of his right to appeal and subsequent approaches to other lawyersdid not provide him with further assistance. It was not until he engaged Mr Bhardwajthat he received advice regarding his right to appeal.[4] I do not find this explanation particularly convincing but given the issue atstake I consider it is appropriate to grant Mr Moala an extension of time within whichto bring his appeal. I make an order accordingly.Fresh evidence[5] Mr Moala also seeks leave to adduce fresh evidence. This takes the form of anaffidavit sworn by Mr Simon Laurent, a solicitor who specialises in immigration law.Mr Laurent has sworn an affidavit in which he sets out the likely consequences of aconviction so far as Mr Moala is concerned from an immigration perspective.1 New Zealand Police v Moala [2020] NZHC 11999.[6] The Court of Appeal has recently observed that material of this type may behelpful to a court considering an application for discharge without conviction incircumstances where the entry of a conviction may result in the offender beingdeported.2 Such evidence may assist the Court to identify an offender's immigrationstatus and associated rights, and it may also explain "otherwise opaque" administrativeprocesses. In particular, it may identify considerations that a decision maker must ormay consider in an immigration context.[7] Those factors are present in this case. I therefore grant leave for the evidenceto be adduced.The offending[8] The assault charge was laid as a result of an incident that occurred on themorning of 10 February 2020. Mr Moala had been drinking alcohol continuouslybetween 2 pm the previous day and the early hours of 10 February. At one stage hefell asleep in the driveway of his property and was awoken by a passer-by.[9] When his wife came home from work in the morning, she refused to talk tohim. An altercation ensued in which Mr Moala grabbed his wife and threw her on theground. He then stood over her and punched two holes in the wall before punchingher twice in the face with his closed fists. His wife then ran to the bathroom whereshe locked the door and tried to call the police on her cellphone. Mr Moala kicked thedoor down, grabbed the cellphone and smashed it against a wall. His wife was able toescape from the house and obtained assistance from some neighbours. When thepolice arrived, Mr Moala's wife was found to have swelling to her face in the area ofher forehead and below her right eye. She also had bruising to her right bicep.[10] The charge of failing to appear was laid after Mr Moala entered a guilty pleato the assault charge on 25 February 2020 but then failed to appear for sentence on6 May 2020. A warrant for his arrest was issued but this was withdrawn after he madea voluntary appearance on 14 May 2020. Nothing further is known about thecircumstances of that offending.2 Sok v R [2021] NZCA 252 at [53].Relevant principles[1] An application for discharge without conviction is governed by s 106 of theAct, which relevantly provides as follows:106 Discharge without conviction(1) If a person who is charged with an offence is found guilty or pleadsguilty, the court may discharge the offender without conviction, unlessby any enactment applicable to the offence the court is required toimpose a minimum sentence.[2] In applying s 106, the Court must follow the guidance contained in s 107 ofthe Act. This provides:107 Guidance for discharge without convictionThe court must not discharge an offender without conviction unless thecourt is satisfied that the direct and indirect consequences of aconviction would be out of all proportion to the gravity of the offence.[3] A court considering an application for discharge under s 106 must considerthree issues.3 It must first assess the gravity of the offending having regard to the factsof the particular case. This exercise is not restricted to the aggravating and mitigatingfactors of the offending itself. Factors personal to the offender may also be relevant.4Next, it must identify the direct and indirect consequences of a conviction beingentered. In this context there must be a "real and appreciable" risk that any positedconsequence will occur.5 Thirdly, the court must determine whether the consequencesof a conviction would be out of all proportion to the gravity of the offending. Thereis a residual discretion not to grant a discharge but that will rarely be exercised wherethe statutory criteria have been met.[4] An appellate court is required to reach its own view as to whether the directand indirect consequences are out of all proportion to the gravity of the offending. Ifit accepts the statutory threshold has been met, the court must determine whether the3 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16]-[17].4 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27]; DC (CA47/2013) v R [2013]NZCA 255 at [35].5 DC (CA47/2013) v R, above n 4, at [43].court at first instance erred in principle when exercising its discretion to grant or refuseto grant a discharge.6The Judge's decision[5] After describing the offending, the Judge assessed its overall gravity asfollows:[11] In trying to make an assessment of gravity, I do not agree with MsSenar that this is low level offending. I have concluded that it is moderate inseriousness. Mr Moala, since the offending in February, has engaged withHAIP [counselling], it is only because of the lockdown that there have beendelays in him completing that course, but he is fully engaged in it. I am alsotold that he and Mrs Moala have been engaged in couples counselling. Interms of reduction of future risk, some steps have been taken. It isacknowledged however through counsel that there is an ongoing problem withalcohol which undermines his ability to control his temper. Although hereports through counsel that he has not consumed alcohol since this incident.[6] The Judge then turned to the likely consequences of a conviction. In thepresent case it is virtually inevitable that Mr Moala will be deported to Tonga if theconviction remains in place. This flows from the fact that Mr Moala has now beenbefore the courts on three occasions in just 15 months. He was convicted on 18 March2019 on a charge of driving with excess breath alcohol. This resulted in Mr Moalareceiving a fine and being disqualified from driving for six months.[7] More importantly, he was convicted on 13 May 2019 on a charge of speakingthreateningly to his wife. On this occasion he was sentenced to supervision for sixmonths. Mr Moala's conviction on this charge had other and more seriousimplications for Mr Moala because he and his family only arrived in New Zealandfrom Tonga three years ago. They held resident visas and were in the process ofapplying for permanent residency when the offending occurred in 2019.[8] The conviction in 2019 resulted in Mr Moala being served with a deportationliability notice. On 9 August 2019 the immigration authorities suspended theoperation of that notice for four years on the condition that Mr Moala was notconvicted of any offences during the suspension period and that he complied with the6 Edwards v R [2015] NZCA 583 at [6].conditions of his sentence of supervision. The fact that the present offending occurredwithin the suspension period means it is highly likely the deportation liability noticewill be reactivated. It is now too late for Mr Moala to appeal against the notice.Furthermore, Mr Laurent assesses his likelihood of success in the avenues that remainopen to him to remain in New Zealand lawfully as being low. It is therefore likely thatif Mr Moala does not leave New Zealand voluntarily he will be deported at theexpiration of 28 days after he is advised that the deportation liability notice has beenactivated. Mr Laurent says it is also unlikely that Mr Moala will be given a visa tovisit New Zealand in the future.[9] The Judge proceeded on the basis that it was virtually inevitable that Mr Moalawould be deported if the application for discharge without conviction was not granted.To that extent Mr Laurent's affidavit adds nothing new. In considering whether thiswould be out of all proportion to the overall gravity of the offending the Judgeobserved:[20] Therefore, is almost inevitable deportation wholly disproportionate tothe seriousness of this offending? I understand that it will be upsetting to hisfamily if he were convicted and then deported. I understand that will bedisruptive to his wife and family generally. But, Mr Moala does not have ageneral right to be here in New Zealand and has been warned of his precariousstatus previously in August last year. Despite that second chance, he hasallowed himself to become so intoxicated that he has once again offendedagainst his wife; demonstrating that his poor conduct towards her is actuallyescalating in seriousness. I have concluded that Mr Moala has had hisopportunity and unfortunately has thrown it away.[21] It is a consequence of me entering a conviction that he is likely to bedeported. But that, in my view, is not wholly disproportionate to themoderately serious assessment I have made of this offending, particularly inlight of the fact that he has a relevant previous conviction and was under asignificant and clear warning from Immigration. In those circumstances I donot consider that I have a discretion to discharge Mr Moala without conviction.I therefore, convict him of the offence of assault on a person in a familyrelationship. The 106 application is declined.Grounds of appeal[10] On Mr Moala's behalf Mr Bhardwaj submits that the Judge erred in concludingthat the consequences of conviction were not wholly disproportionate to the gravity ofthe offending. He also points out that, in assessing the gravity of the offending, theJudge failed to take into account the fact that Mr Moala had entered a guilty plea. Inaddition, he says the Judge erred in stating that Mr Moala did not have a general rightto be in New Zealand because Mr Moala held a resident visa at the time of theoffending. In addition, the Judge was not aware that, if Mr Moala is deported, it isunlikely that he will be granted a visa to return to New Zealand. That evidence is nowbefore the Court in Mr Laurent's affidavit. Taking these matters into account,Mr Bhardwaj submits this Court should conclude the consequences of conviction forMr Moala are wholly disproportionate to the overall gravity of the offending.DecisionOverall gravity of offending[11] As I have already observed, in this context the Court considers not only theculpability inherent in the offending but factors personal to the offender.[12] The offending occurred after Mr Moala had a very prolonged period ofdrinking and with no provocation on the part of the victim. The fact that his wife didnot want to talk to Mr Moala was, as the Judge observed, entirely understandable giventhe level of his intoxication. The act of throwing her to the floor was an act ofmoderate violence. His act in then punching two holes in the wall would also havebeen frightening for her. The act of striking his wife twice in the head with a closedfist involved the infliction of violence to a vulnerable part of his wife's body. Finally,Mr Moala's actions in kicking down the bathroom door and smashing his wife'scellphone added to the overall culpability of the offending.[13] The gravity of the offending was aggravated further by the fact that Mr Moalahas previous convictions entered just 12 months earlier for driving with excess breathalcohol and speaking threateningly to his wife. He had only recently completed thesentence of supervision imposed on the latter. This fact outweighs any credit to begiven to the rehabilitative efforts Mr Moala has undertaken and his guilty plea, whichhe entered in the face of a very strong prosecution case. It follows that I agree withthe Judge's assessment that, as an example of offending of its type, the overall gravityof the offending was moderately serious.Consequences of conviction[14] Like the Judge, I proceed on the basis that a conviction on the present chargemeans it is virtually inevitable that Mr Moala will be deported from New Zealand ifhe does not leave voluntarily. Furthermore, it is unlikely that he will be able to return.This will cause obvious hardship for him because he says that his life is now firmlybased in New Zealand rather than in Tonga. It will also cause hardship for his wifeand two young children, who will be required to decide whether to return to Tongawith Mr Moala or remain in New Zealand so they can enjoy the material advantagesthis country has to offer.[15] As against that, however, Mr Moala and his family have only been in NewZealand for three years and they still have relatives in Tonga. They will not bereturning to a place that is completely unfamiliar to them as is often the case whenpersons are deported after spending a lengthy period in another country. Furthermore,Mr Moala is just 31 years of age. As at the date of the hearing in the District Court hewas unemployed and looking for employment. He is therefore not being forced togive up a good job in this country that would enable him to support his family whenthat will not be the case in Tonga. There is no evidence to suggest Mr Moala will beunable to re-establish his life in Tonga or that relocation will cause other forms ofparticular hardship to him and his family.[16] The Court will not inevitably decline an application under s 106 when the entryof a conviction is likely to result in the reactivation of a deportation liability notice.Mr Bhadwaj referred me to Chand v Police, in which this Court allowed an appeal andgranted a discharge without conviction to an offender who was in that position.7However, there are important factual distinctions between the facts of that case andMr Moala's offending. In that case the offending was provoked by an assault by thevictim. That factor is obviously not present in Mr Moala's case. More importantly,the appeal in Chand was effectively allowed without opposition because the offenderhad sole responsibility for the care of his young daughter. Deportation would preventhim from performing that role if he left his daughter in New Zealand. He could nottake his daughter back to India with him because it would deprive her of all contact7 Chand v Police [2017] NZHC 2188.with the other members of her family. Muir J held that given the circumstancesinvolving the offender's daughter the prospect of deportation was "not an outcome theCourt can countenance".8 No such issues arise in the present case.[17] Like the Judge, I place emphasis on the fact that Mr Moala was effectively ona form of probation at the time of the present offending. He knew the immigrationauthorities were likely to reactivate the deportation liability notice if he committed anyfurther offences between August 2019 and August 2023. He was therefore on noticethat he needed to modify both his consumption of alcohol and his behaviour towardshis wife if he was to avoid that consequence. Unfortunately he did neither. As theJudge observed, Mr Moala was given a second chance and effectively threw it away.He must now live with the consequences of his actions.[18] Overall, I would assess the consequences of conviction for Mr Moala as beingmoderate. It follows that the consequences of conviction are not out of all proportionto the overall gravity of the offending.Result[19] The appeal against conviction is dismissed.Lang J8 At [34].