PORTELA CHAVES v NEW ZEALAND POLICE [2022] NZHC 1909

PORTELA CHAVES v NEW ZEALAND POLICE [2022] NZHC 1909 [4 August 2022]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECRI-2022-425-05[2022] NZHC 1909BETWEEN MATHEUS PORTELA CHAVESAppellantAND NEW ZEALAND POLICERespondentHearing: 25 July 2022Appearances: B Shackell for AppellantM Brownlie for RespondentJudgment: 4 August 2022JUDGMENT OF OSBORNE JThis judgment was delivered by me on 4 August 2022 at 11.00 amRegistrar/Deputy RegistrarDate:Introduction[1] Matheus Portela Chaves was found guilty of injuring the victim ("Mr B" inthis judgment) with reckless disregard,1 after a Judge alone trial before Judge Walker(Trial Judgment).2 Mr Portela Chaves applied to be discharged without conviction.The Judge declined that application and sentenced him to 150 hours' community workand 12 months' supervision (Sentencing Decision).3[2] Mr Portela Chaves appeals that decision. He says the immigrationconsequences of his conviction are out of all proportion to the gravity of his offending.He says the appropriate outcome was a discharge without conviction.Facts and Sentencing Decision — the trial outcome[3] In his Sentencing Decision the Judge set out the evidence and facts as hedetermined them following the trial:[1] at about 11.30 pm on Wednesday 2 June 2021 you were in theQueenstown central business district.Facts[2] [Mr Portela Chaves was] initially on Camp Street where [he] met agroup of people. Someone in that group was verbally harassing [Ms G] whenshe got out of the taxi and started walking down Searle Lane towards a barwith her friends. [Ms G] said [he] left that group and also walked down SearleLane. She told the court she was feeling anxious and nervous. As [MrPortela Chaves] and [Ms G] continued down Searle Lane, a friend of hers, thevictim [Mr B], got between [him] and [Ms G]. She anticipated trouble as [MrPortela Chaves] and the victim faced each other. She attempted to pull thevictim back but he deliberately pushed [Mr Portela Chaves] forcefully withboth hands to [his] chest. [Mr Portela Chaves] responded by landing a heavypunch to the victim's jaw.[4] The Judge viewed as aggravating circumstances that Mr Portela Chavesattacked Mr B's head and that serious injury resulted. The Judge outlined the injuriessuffered by Mr B —compound fractures to his jaw, with surgery required at DunedinHospital. Mr B needed three titanium plates inserted into his jaw and 13 screws, all1 Crimes Act 1961, s 189(2); maximum penalty five years' imprisonment.2 Police v Portela Chaves [2021] NZDC 24968 (Trial Judgment).3 Police v Portela Chaves [2022] NZDC 3378 (Sentencing Decision).of which remained at the time of sentencing. He had 12 weeks of being unable to eatnormally.[5] The Judge identified in relation to the gravity of the offending these otherconsequences:(a) the costs of Dunedin/Queenstown travel for Mr B and his family in thesubsequent period;(b) Mr B missing two weeks of his education and his exams, and having topay to re-sit the exams;(c) Mr B having to give up rugby after being named in a countrydevelopment team;(d) Mr B feeling more vulnerable than previously and losing confidence ingoing out at night; and(e) Mr B's friends, including Ms G, (the witnesses on the night) also beingaffected.[6] The Judge heard evidence from Mr B and Ms G, both of whom werecross-examined. CCTV footage of the incident was produced. The Judge had briefsof evidence from two police officers, one of whom had conducted a video interviewwith Mr Portela Chaves (also produced).[7] The Judge outlined concessions made by Ms G under cross-examination.Ms G accepted Mr Portela Chaves was somewhat backed into a corner initially in thealleyway, that he had his hands in his pockets and that other people were touching himprior to the punch which was delivered to Mr B. She also accepted she had grabbedMr B to restrain him. The Judge determined she gave reasonable and straightforwardevidence though it was clear she did not want to get Mr B into any difficulty.[8] Mr B gave evidence in which he said he had been drinking approximately sixbeers before heading into town. The Judge noted his concession in cross examinationthat he had told hospital staff he had had 12 plus beers. He gave evidence he was notdrunk but not sober either, accepting he was tipsy. The Judge determined Mr B'sevidence was plausible, reasonable and measured and, even accounting for thepossible underestimate on his part of the alcohol he consumed, he made responsibleconcessions.[9] The Judge also summarised Mr Portela Chaves' video interview.Mr Portela Chaves had acknowledged being involved in the altercation and punchingMr B. He said he did so in response to being pushed forcefully in the chest and thathe was concerned about the presence of other people. The Judge determined hisaccount of events was reasonably consistent with the CCTV footage. The Judge foundMr Portela Chaves had not minimised or embellished the facts and it was clear he wasperturbed by the outcome for Mr B. In response to questions from the constable,Mr Portela Chaves confirmed he did not view the punch as his normal reaction nor theright one.[10] The Judge did not accept Mr Portela Chaves' defence of self-defence. HisHonour found the "heavy blow" Mr Portela Chaves delivered a significantlydisproportionate response to the physical force applied to him. It was not in all thecircumstances reasonable force. The Judge found Mr Portela Chaves had at least twoclear escape routes, one of which he took after delivering the punch. One escape routewas up the lane, the other back down the lane. The Judge accepted Mr Portela Chaveswas alone at the time while Mr B was part of a group, that Mr B was the first personto initiate physical contact and that Ms G took steps to restrain Mr B because she wasworried he would get involved in a fight.The Sentencing Decision— aggravating and mitigating aspects of the offending[11] The Judge identified the aggravating features of the offending as summarisedat [4]–[5] above.[12] At the sentencing hearing, the Judge noted defence arguments that a mitigatingfactor of Mr Portela Chaves' offending was that it was a case of "excessiveself-defence". The Judge found that was something of a misnomer because it is notself-defence if the force is excessive. He did, however, accept that the first physicalact came from the victim and treated that as a mitigating factor of the offending.[13] The Judge assessed the overall gravity of the offending as moderately serious.The Sentencing Decision — personal mitigating aspects[14] The Judge noted Mr Portela Chaves had no criminal record in New Zealand orBrazil, that he was 24 years of age at the time of the offending, that he cooperated fullywith police and at no point minimised his actions. The Judge also noted he was aBrazilian citizen in New Zealand with no family support, his remorse and the time hespent on bail with a zero alcohol condition and curfew. The Judge also had regard tothe fact Mr Portela Chaves sought restorative justice and offered to pay reparation.The Sentencing Decision — consequences of conviction[15] The Judge considered an affidavit from Antoinette Alexander, an experiencedimmigration advisor, who advised Immigration New Zealand would most likely issuea deportation notice against Mr Portela Chaves and a consequence of that would bethat he is effectively unable to work or study in this country.[16] The Judge accepted a consequence of conviction for Mr Portela Chaves washe would be served with a deportation liability notice, his entitlement to remain inNew Zealand would come to an end and he would be unable to return to work. TheJudge noted a testimonial from Mr Portela Chaves' employer, the fact he had a partnerwho had two young children, his affidavit in which he set out a previous incident thatoccurred in Brazil and that the conviction would have significant consequences for therest of his life.[17] The Judge referred to cases where the likelihood of deportation was found tobe a consequence of conviction out of all proportion to the gravity of the offending4but also cases where the courts have been reluctant to usurp the function of specialistauthorities whose job it is to assess immigration issues.5 The Judge accepted there4 Rahim v R [2018] NZCA 182.5 Yuan v Police [2020] NZHC 933; and Singh v Police [2019] NZHC 417.was a real and appreciable risk of him being deported and that the consequences ofdeportation would be significant. The Judge determined, however, the gravity of theoffending here was higher than that in Rahim v R, a case relied on by the defence.6[18] The Judge expressed sympathy for Mr Portela Chaves but ultimately found theconsequences of conviction were not out of all proportion to the gravity of the offence.Discharge without conviction — the law[19] The Court may grant a discharge without conviction under s 106 SentencingAct 2002 only if it is satisfied, under s 107, that the direct and indirect consequencesof a conviction would be out of all proportion to the gravity of the offending.7Principles on appeal[20] Appeals in relation to the proportionality test under s 107 are by way ofrehearing, with the appellate Court making its own assessment of whether the criteriaare established.8 If a discharge without conviction should have been granted, thenthere will have been a material error by the sentencing Judge, or a miscarriage ofjustice will have occurred for any other reason, and so the appeal against convictionmust be allowed.9SubmissionsAppellant's submissions[21] Ms Shackell, for Mr Portela Chaves, sought leave to file an updating affidavitof Mr Portela Chaves as fresh evidence relevant to the appeal.[22] Ms Shackell submitted the Judge:(a) overestimated the gravity of his offending; and6 Rahim v R, above n 3.7 Sentencing Act 2002, s 107.8 H v R [2012] NZCA 198 at [35]-[36].9 Criminal Procedure Act 2011, s 232(2)(b) or (c); and Jackson v R [2016] NZCA 627 at [12].(b) erred in finding the consequences of conviction were not out of allproportion to that gravity.[23] Ms Shackell made submissions on three particular aspects of the Judge'sreasoning:(a) she submitted the Judge, in dismissing the submission that "excessiveself-defence" was a mitigating factor, failed to recognise thatMr Portela Chaves, in terms of s 62 Crimes Act 1961, was criminallyresponsible only for that portion of the force used that was excessive;(b) she submitted that the Judge placed undue weight on matters other thanthe extent of the injury in quantifying the effect on Mr B, in particulartaking issue with the Judge's reference to transport costs and the impacton the victim's friends. She submitted there was a failure to take intoaccount Mr B's own contribution to the incident; and(c) finally, she submitted the Judge overestimated Mr Portela Chaves'means of escape, submitting it was only once Mr B was knocked to theground that the escape route Mr Portela Chaves took (back down thelane) was available to him.[24] Ms Shackell submitted, were it not for those errors, and taking account ofmitigating factors, the gravity of the offending would have been properly characterisedas low to moderate. Ms Shackell referred to the following six mitigating factors:(a) Mr Portela Chaves' childhood experience of threats in Brazil;(b) his relative cultural disadvantages as a foreigner in New Zealand;(c) his remorse, cooperation with Police, willingness to attend restorativejustice and (conditional) offer of emotional harm reparation;(d) his previous good character;(e) his young age (24 years), committed family relationship in NewZealand and disconnect from family support in Brazil; and(f) his compliance while on restrictive bail.[25] Ms Shackell submitted that four consequences of a conviction renderedMr Portela Chaves' conviction out of all proportion to his offending:(a) the real and appreciable risk of deportation;(b) the probable suspension of his essential skills visa resulting in a loss ofemployment;(c) the loss of his New Zealand family; and(d) social, psychological and financial losses through having to start afreshin post-pandemic Brazil.Respondent's submissions[26] Mr Brownlie, for the Crown, did not oppose the admission of the freshevidence on appeal.[27] Mr Brownlie submitted Judge Walker appreciated that Mr B's was the firstphysical act ("pushing Mr Portela Chaves forcefully") and that Mr Portela Chaves wasnot the aggressor. He maintained the Judge appropriately took account of the impacton Mr B and his family and did not overemphasise financial or medical costs of theoffending. Mr Brownlie submitted the Judge had already taken into account thevictim's conduct by this point. Mr Brownlie submitted the Judge, when assessing thegravity of the offending, gave little weight to the factor Mr Portela Chaves had a meansof escape.[28] Mr Brownlie submitted Mr Portela Chaves' evidence given in his affidavitabout his experiences in Brazil should be largely discounted because Mr PortelaChaves did not give evidence at the Judge alone trial and this statement is untested.He conceded this information may have been relevant to the trial itself. Mr Brownliealso submitted there was no evidence before the court showing how Mr Portela Chavesis disadvantaged by being a foreign national residing in New Zealand. Mr Brownliesubmitted all relevant mitigating factors were properly considered by the Judge.[29] Mr Brownlie submitted, while there may be a real and appreciable riskMr Portela Chaves will be served with a deportation liability notice and thus lose hisjob and relationship, those consequences are not out of all proportion to the gravity ofthe offending.Analysis[30] Mr Portela Chaves' new affidavit will be admitted as it is relevant, updatingevidence.[31] On the appeal itself, I first consider the gravity of the offending.Extent of excessive force[32] The Judge appropriately had regard to the fact the victim initiated the physicalconfrontation by forcefully pushing Mr Portela Chaves in the chest. The Judge foundthat Mr Portela Chaves had first endeavoured to walk away from the altercation andat one point had his hands in his pockets. I do not consider this analysis and the Judge'sultimate consideration inconsistent with authorities such as R v Taueki which identifyexcessive "self-defence" as potentially a mitigating factor of offending.10 His Honourhad regard to the matters which would have justified Mr Portela Chaves takingself-protective steps.[33] The Judge was also required, in assessing the gravity of Mr Portela Chaves'assault on Mr B, to assess the nature and quality of the excess of force used.11 TheJudge's finding in this regard was straight forward — Mr Portela Chaves' action indelivering a heavy blow to Mr B's head was significantly disproportionate andexcessive having regard to the physical force Mr B applied to Mr Portela Chaves. The10 R v Taueki [2005] 3 NZLR 372 at [32].11 Crimes Act 1961, s 62.Judge also weighed the fact Mr B initiated the confrontation as a factor mitigating theculpability of the offending.Extent of injuries and other consequences[34] Likewise, there was no error in the Judge's consideration of the impact on thevictim and matters referred to in their victim impact statement. The purpose of avictim impact statement is to enable victims to provide information to the court aboutthe effects of the offending, assist the court in understanding the victim's views on theoffending and inform the offender about the impact of the offending from the victim'sperspective.12 The victim's statement here did not stray beyond those purposes.[35] When sentencing an offender, the court is required to take into account theextent of any loss, damage or harm resulting from the offence and any informationprovided to the court concerning the effect on the victim.13 The Judge's identificationand consideration of financial costs of the offending, including those incurred by thevictim's parents, and the victim's view that the offending also impacted his friends aswitnesses, was orthodox and appropriate.[36] Also relevant to the gravity of the offending here was the serious injurysuffered by the victim, the consequences of that injury and that he has lost confidencein being out at night.Assessment of escape options[37] The Judge, in the Trial Judgment, found Mr Portela Chaves had had two routesby which to escape the incident.14 That finding was made by the judge of fact withthe benefit of hearing the witnesses and considering the CCTV footage in light of thatoral evidence. For the purpose of the appeal, I too have reviewed the CCTV footage.The Judge applied his finding at trial in the Sentencing Decision. Having recognisedMr B had unwisely pushed Mr Portela Chaves in the chest, the Judge continued:1512 Victims' Rights Act 2002, s 17AB.13 Sentencing Act, ss 8(f) and 9(1)(d).14 Trial Judgment, above n 2, at [29].15 Sentencing Decision, above n 3, at [32]. You had a means of escape, one of which you took, but not before landingthe heavy blow which caused the serious injuries suffered by [Mr B].[38] Ms Shackell submits the escape route taken by Mr Portela Chaves after hestruck Mr B was not available before he struck Mr B. That submission invites thisCourt to ignore the Judge's factual findings as trial Judge. It also ignores what theCCTV shows as a clearly open route (up the lane) that was available toMr Portela Chaves had he continued on in the direction he was initially heading.There is no basis upon which to depart from the Judge's approach at sentencing thatMr Portela Chaves had means of escape.[39] Even were there a demonstrable error in the Judge's findings as to the escaperoute (which there is not), I accept Mr Chapman's submission that it could not haveaffected the Judge's assessment that the gravity of the offending was "moderatelyhigh". That assessment fits squarely with the nature of the assault on Mr B and theother aggravating factors identified by the Judge. The primary mitigating factor —Mr B's aggressive involvement and the fact Mr Portela Chaves was responding to that— could not reduce the gravity of the offending to "low to moderate" as suggested byMs Shackell.[40] Ms Shackell identified six mitigating factors personal to Mr Portela Chaveswhich, if taken into account, would have placed Mr Portela Chaves' offending in the"low to moderate" category (summarised at [24]) above. I observe that each of thosematters were factors personal to the offender rather than factors mitigating theoffending itself. As it is, the Judge expressly took five of them into account in thefollowing points of the Sentencing Decision:(a) childhood threats — at [20], [22];(b) remorse and other offers — at [15], [37];(c) previous good character and employment history — at [15], [18];(d) youth, New Zealand family relationship and disconnect from Brazil —at [15], [19]; and(e) compliance while on restrictive bail — at [15].[41] One of the factors raised by Ms Shackell – disadvantage as a foreigner in NewZealand – does not appear to have been identified expressly by the Judge in theSentencing Decision.[42] This remaining factor — the relative disadvantage Mr Portela Chaves faced asa foreigner in New Zealand — requires some more consideration. As Mr Brownlienoted, there was no evidence before the District Court as to how Mr Portela Chavesmay have been disadvantaged by being a foreign national (whether Brazilian orotherwise) residing in New Zealand. While it is conceivable that particular culturaldifferences might impact on a defendant's culpability, there was nothing before theDistrict Court (or indeed this Court) to justify any inference of a general let alonespecific cultural disadvantage. As Mr Brownlie submitted, the proposition that therewas disadvantage is itself conjecture.[43] In the circumstances, I conclude that the Judge weighed the factors that neededto be weighed.[44] Of those factors, one merits further discussion, namely Mr Portela Chaves'evidence in relation to childhood threats. In his affidavit in support of his applicationfor a discharge without conviction, Mr Portela Chaves recorded:[10] In Brazil, where I am from, street fight is extremely dangerous andviolent. The first time I remember fearing for my life, I was just 8 years oldwhen a man pulled a knife on me. My sister said "run Matheus", and I did. Ithought I was going to die.[45] This evidence was not adduced in relation to Mr Portela Chaves' defence ofself-defence at trial. The Judge observed in the Sentencing Decision that theinformation is being put forward on the basis that those childhood experiences hadimpacted on the way Mr Portela Chaves reacted on the night of the offence.16 TheJudge took it into account amongst the factors to be weighed in the assessmentrequired for a discharge without conviction.1716 Sentencing Decision, above n 3, at [22].17 Sentencing Decision, above n 3, at [23].[46] What remained was an offence that was appropriately placed in the"moderately serious" category.[47] The Judge then appropriately identified the consequences of conviction reliedupon by Mr Portela Chaves, particularly through the affidavit of Ms Alexander (theimmigration advisor). The Judge correctly referred to authorities which recognisedthat there is a reluctance (albeit no general rule) on the part of the Courts to intervenein the decision-making of specialist bodies such as Immigration New Zealand.18 Asillustrated by the decision in Yuan v Police, even in relation to the offences involvingdrink driving, it will be relatively rare for the risk of deportation by itself to beconsidered a disproportionate consequence of such a conviction.19Conclusion[48] The offending of Mr Portela Chaves was, as found by the Judge, offending ofa moderately serious nature.[49] The consequences of conviction relied upon by Mr Portela Chaves (both directand indirect) are not out of all proportion to the gravity of the offending.Order[50] I order:(a) the appellant has leave to file his affidavit; and(b) the appeal is dismissed.Osborne JSolicitors:Crown Solicitor, InvercargillMactodd Lawyers, Queenstown18 Singh v Police, above n 4, at [39]; Yuan v Police, above n 4, at [27].19 Yuan v Police, above n 4, at [25].