NANDA v NEW ZEALAND POLICE [2023] NZHC 415

NANDA v NEW ZEALAND POLICE [2023] NZHC 415 [7 March 2023]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECRI-2022-463-116[2023] NZHC 415BETWEEN MOHIT NANDAAppellantAND NEW ZEALAND POLICERespondentHearing: 28 February 2023Appearances: S G Graham for the AppellantC A Bourke for the RespondentJudgment: 7 March 2023JUDGMENT OF PALMER JSolicitorsYoung Hunter Lawyers, ChristchurchPollett Legal Limited, TaurangaWhat happened?Mr Nanda[1] In 2008, Mr Mohit Nanda came to New Zealand from India on a student visa.He married in April 2010 and the couple had two children, in 2011 and 2012. In March2014 he was granted a resident visa. In March 2016 he obtained a permanent resident'svisa. In 2014, he separated from his wife and they divorced in January 2017.The offending[2] On 30 August 2017, aged 29, Mr Nanda was living in Tauranga with his newpartner, who had two children from a previous relationship. That evening, after hecame home from work and was eating dinner, he told his partner's three-year-old son,sitting in his favourite chair, to go to bed. He and his partner argued about this. Hispartner tried to prevent Mr Nanda doing anything to the child. But Mr Nanda slappedthe child across the side of his head with an open palm, creating a large bruise in theshape of a handprint. This was reported to the Police by the child's day-care centre.Mr Nanda denied hitting the child and was charged with assault on a child under s 194of the Crimes Act 1961. His relationship with the child's mother ended shortly afterthe assault.[3] On 29 September 2017, Mr Nanda pleaded guilty in the District Court atTauranga. Judge Harding sentenced him to six months' supervision includingattendance at anger management counselling, which he successfully completed.Unfortunately, the Judge's sentencing notes are not available and are now unable to betranscribed.Subsequent events[4] In November 2017, Mr Nanda returned to India for an arranged marriage.After getting married, he continued living in New Zealand but returned regularly toIndia until the borders closed. He and his new wife have a four-year-old daughter,born in August 2018. They have been living together in India since May 2021.[5] On three occasions, in 2018, 2020, and 2021, Mr Nanda sought to sponsor hiswife and child for temporary visas to enter New Zealand:(a) In response to the first application, in September 2018, ImmigrationNew Zealand (INZ) accepted the relationship was genuine, notedMr Nanda's conviction, stated he would normally be ineligible to act asa support partner, and refused to make an exception.(b) In response to the second application, in February 2021, INZ did notaccept the couple had provided sufficient information of them livingtogether and that they had a genuine and stable partnership. For thatreason, INZ stated it had not fully considered the implications of theconviction. I note that Mr Nanda's wife has provided to this Court anaffidavit attesting to the genuineness of their relationship and to thestress on her and their child caused by the immigration process.(c) In response to the third application, in February 2022, INZ statedMr Nanda did not meet the character requirements for supporting theapplication, unless a character waiver was made, and invited moreinformation to be submitted. More information was submitted. On18 July 2022, INZ stated Mr Nanda does not appear to be eligible to actas a support partner because of the conviction. That was because theoffending was within five years of being granted a resident's visa. Itoffered a further opportunity to provide information.The appeal[6] Mr Nanda has sworn an affidavit saying he was never informed by his counsel,Mr David Bates, of the impact the conviction would have on his visa nor of thepossibility of applying for a discharge without conviction. If he had been aware of it,he would have instructed Mr Bates to make the application. Instead, on the basis ofMr Bates' advice, he pleaded guilty. He appeals his conviction, over four years out oftime, and seeks a discharge without conviction.[7] Mr Nanda says he only became aware his conviction made him ineligible tosponsor subsequent temporary visa applications after INZ's July 2022 letter andbrought the appeal in a timely manner after that. The Police responsibly accept thedelay is explicable for that reason and, in the absence of prejudice to them, do notoppose leave. I grant leave for those reasons.[8] Mr Nanda also applies for leave to adduce fresh evidence under s 335(2) of theCriminal Procedure Act 2011. They are affidavits by himself and his new wife,relating to the consequences of the conviction. So, they could not reasonably havebeen adduced before. The Police responsibly accept that, and accept the evidence iscredible, so do not oppose leave. I grant leave for those reasons.Submissions[9] Mr Graham, for Mr Nanda, submits counsel omitted to properly consider thelikely consequences of conviction on Mr Nanda's immigration status, to adviseMr Nanda of that risk, and to bring it to the attention of the sentencing Judge. Hesubmits the gravity of Mr Nanda's offending is low to moderate, informed by thesentence which is the third least restrictive sentence possible. The offending did notcause significant injuries. Mr Nanda has no other convictions. The Court has a dutyto consider immigration consequences. It does so without usurping INZ's decision-making. There is no need for expert evidence about the risk of deportation. The July2022 INZ letter demonstrates the conviction has had immigration consequences. TheCourt is justified in considering the consequences of offending are out of proportionto its gravity.[10] Ms Bourke, for the Police, acknowledges it is appropriate for this Court toconsider a discharge without conviction afresh. She submits the offending ismoderate, having regard to the aggravating factors of: breach of trust; victimvulnerability; gratuitous violence; attack to the head; and injury. It is more seriousgiven that it was unprovoked against an innocent child, given community concernsabout violence against children. She submits the Court should leave immigrationconsequences to immigration officials. Mr Nanda is separated from his family, but therisk of deportation is uncertain and far from inevitable. Even if a notice is issued, itcould be cancelled by the Minister on humanitarian grounds. His wife and daughterhave no real connection to New Zealand and no pre-existing right to enterNew Zealand. Having to choose between the two families is a relevant consideration ,but it is not unnatural for there to have to be organisation and thought about spendingtime with two different families, for example after going through a divorce. Theconsequences of conviction are proportionate to the gravity of the offending and thematter should be left with INZ.Should the appeal be granted?[11] This is an appeal, by way of rehearing, against the conviction.1 Under s 232(2)of the Criminal Procedure Act 2011, I must allow the appeal of the conviction ifsatisfied a miscarriage of justice has occurred by virtue of a material error. Otherwise,I must dismiss the appeal. A miscarriage of justice is defined to mean "any error,irregularity, or occurrence in or in relation to or affecting the trial" (including aproceeding in which the appellant has pleaded guilty) that "has created a real risk thatthe outcome of the trial was affected" or "has resulted in an unfair trial or a trial thatwas a nullity". A "real risk" that the outcome was affected exists when there is areasonable possibility a more favourable verdict might have been delivered if nothingwent wrong.2 It is only in exceptional circumstances that an appeal against convictionwill succeed if the appellant has pleaded guilty, including where the guilty plea wasbased on incorrect advice and, as in Yu v Police, where counsel failed to advise on thepossibility of a discharge without conviction.3[12] I am satisfied, as acknowledged by the Police, that it is appropriate to deal withthe matter afresh. The uncontested evidence is that Mr Nanda was not advised of thepossibility of a discharge without conviction. Section 11 of the Sentencing Act 2002requires the Court to consider discharge without conviction. There is no evidence theCourt was advised of, or considered, that possibility either, as the Police concede. Andthe lack of advice about the implications for Mr Nanda's immigration status suggeststhe Court would not have known about that issue. So, in effect, there was an error bycounsel and a miscarriage of justice relating to Mr Nanda's plea.1 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144.2 R v Sungswan [2006] 1 NZLR 730 (SC) at [110].3 Su'a v R [2017] NZCA 439 at [11]; Yu v Police [2021] NZHC 3000 at [28].[13] Under s 106 of the Sentencing Act a court may discharge without conviction aperson who pleads guilty if, under s 107, the Court is satisfied the direct and indirectconsequences of a conviction would be out of all proportion to the gravity of theoffence. The Court is required to consider whether to exercise its discretion to grant adischarge. On appeal, the Court has jurisdiction to determine a discharge withoutconviction even though it was not before the District Court at first instance.4 I mustconsider: the gravity of the offence; the direct and indirect consequences of aconviction; and whether those consequences are out of all proportion to the gravity ofthe offence.5 The applicant must demonstrate there is a real and appreciable risk anyidentified consequences will occur,6 rather than speculate about matters of present fact.That includes facts about travel restrictions.7[14] I consider the offending was low to moderate in seriousness. Any assault on achild is serious. But Mr Nanda's culpability was on the lower end of the spectrum ofsuch offending. That is consistent with the sentence imposed. There was a clear breachof trust and a vulnerable victim. But the evidence is that the injury was not serious.Mr Nanda pleaded guilty at an early opportunity, was remorseful, and completed angermanagement courses and counselling. He has provided me with a psychologicalassessment from March 2022, finding that he has "no traits of any personality disorderand no significant behavioural problems" and is "mentally fit to stay with his family".[15] Where consequences of conviction depend on decisions by immigrationauthorities who assess the underlying offending, judges will often leave the assessmentto the immigration authorities.8 That is especially so where the outcome is difficult topredict and depends on the underlying offending itself rather than the fact ofconviction.9 The seriousness of the offending is also relevant. There are also caseswhere the disproportionality of consequences is clear enough that the Courts make thedecision themselves. I do not accept Mr Graham's submission that this is the "current"4 Bedford v R [2021] NZCA 395 at [18].5 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8]; and Z (CA447/12) v R [2012] NZCA599, [2013] NZAR 142 at [8].6 DC (CA47/2013) v R [2013] NZCA 255 at [43].7 Edwards v R [2015] NZCA 583 at [25].8 Singh v R [2020] NZCA 411 at [14]9 Rahim v R [2018] ZNCA 182 at [29] and [31].approach compared with an "older", and implicitly outdated, approach. Regarding theCourt of Appeal cases he relies upon:(a) In Bong v R, where the seriousness of offending was low, therequirement to be the subject of a character waiver assessment wasconsidered to be out of proportion.10(b) In Sok v R, the appellant's visa application had already been cancelledon character grounds and the serious nature of the offending meant thatwas not considered disproportionate.11(c) In Zhu v R, liability to deportation stemmed from conviction, notassessment of the offending, and was held to be proportionate to theserious offending.12 The Court stated:[25] The Court has recently considered the question ofcausation in Sok v R, concluding that a conviction may be anindirect cause of a consequence that will happen only in theevent that a third party, such as an immigration officer, makesa decision in which the conviction is relevant. Such a causalconnection may suffice under s 107 of the Sentencing Act.However, it is not always enough to show that but forconviction a given consequence would not happen. Causationis a question of substance and degree, requiring judicialjudgement. Where satisfied that immigration decision-makerswill consider the circumstances that are said to justify adischarge, including the gravity of the offending and theoffender's personal circumstances, courts usually reason thatthe outcome is a consequence of the offending, rather than theconviction.[16] Courts' assessments of immigration consequences for the purposes of adischarge without conviction are influenced by a number of considerations, includingwhether the immigration consequences flow by operation of law or assessment of theunderlying offending by immigration authorities, in the context of the seriousness ofthe offending.10 Bong v R [2020] NZCA 94.11 Sok v R [2021] NZCA 252.12 Zhu v R [2021] NZCA 254.[17] Here the conviction has clearly already had consequences for Mr Nanda'simmigration status. He lived in New Zealand for 14 years, including with permanentresident status. He established roots in the community and has New Zealand citizenchildren with whom he still has a relationship. His Indian child has a pathway toresidence in New Zealand. Yet the conviction itself, by operation of law, means he isnot able to sponsor his current family's visas to New Zealand for another five years.Effectively he has to choose between two families in two countries. Mr Nanda iscurrently separated from his New Zealand children. If he comes to New Zealand, hewill be separated from his wife and child in India.[18] In addition, s 161 of the Immigration Act 2009 automatically triggersMr Nanda's liability for deportation, by operation of law, for 10 years. And becausehe is a permanent resident, a conviction is necessary to trigger his deportation. INZdoes not potentially test his character in any way, as it could for a temporary visaholder. No expert evidence is necessary to clarify that. I agree it is unknown whetherINZ will take steps towards deportation. But the length of time so far is not necessarilya guide to that. Mr Graham referred me to an Immigration Protection Tribunal casewhere steps towards deportation were taken seven years after offending.13 Mr Nanda'sdeportation liability hangs over him and over his family, because deportation wouldseparate his New Zealand children from their father and would impact his new family'saspirations of settling in New Zealand[19] These consequences are out of proportion with the offending. I consider thediscretion to grant a discharge without conviction should be exercised.Result[20] I uphold the appeal and grant Mr Nanda a discharge without conviction.Palmer J13 AU (Egypt) v Minister of Immigration [2020] NZIPT 600629.