NEERAJ v THE POLICE [2019] NZHC 263

NEERAJ v THE POLICE [2019] NZHC 263 [26 February 2019]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2018-441-38[2019] NZHC 263NEERAJvNEW ZEALAND POLICEHearing: 20 February 2019Appearances: J S Jefferson for AppellantC C Gullidge for RespondentJudgment: 26 February 2019JUDGMENT OF CLARK JIntroduction[1] When Mr Neeraj exited a petrol station on 10 September 2018 he checked fortraffic coming from his right but did not see an 87 year old woman on the footpath,crossing the exit. His vehicle struck the woman who sustained resultant injury.Mr Neeraj was charged under s 38 of the Land Transport Act 1998 with operating avehicle carelessly thereby causing injury.1[2] Mr Neeraj applied for a discharge without conviction.2 In the District Courton 28 November 2018 Judge Mackintosh declined the application.3 Mr Neeraj1 Maximum penalty three months imprisonment or a fine not exceeding $4,500 and mandatorydisqualification from holding or obtaining a licence for six months.2 Sentencing Act 2002, s 107.3 New Zealand Police v Neeraj [2018] NZDC 24752.appeals that decision. He says the Judge erred in the application of the statutory testfor a discharge without conviction and the consequences of a conviction are out of allproportion to the gravity of his offending.Facts[3] Mr Neeraj is a 21-year-old Indian National. He has been in New Zealand forthree years, initially on a student visa. He attended Rotorua Lakes High School fortwo years and then Toi-Ohomai Institute of Technology where he obtained aNew Zealand Certificate in baking (level 4). Thereafter, Mr Neeraj obtainedemployment with Pak'nSave. He worked there since April 2018 as a baker.[4] On 10 September 2018 Mr Neeraj started work at 4 am. He finished at12.30 pm. After work he picked up his niece from childcare and decided to stop at theZ service station on Kennedy Road to get something to eat. Having pulled into theservice station he changed his mind about stopping and, he says, drove slowly acrossthe forecourt.[5] The police considered Mr Neeraj was effectively taking a shortcut although theJudge made no factual finding with regard to this point and it was not raised on appeal.Rather, the Judge accepted that when exiting the forecourt Mr Neeraj was checking tosee if there was any traffic coming from his right and did not see the victim crossingthe exit.4[6] In his affidavit evidence for the District Court hearing Mr Neeraj described hisshock at hitting the woman. He felt terrible for having done so. He could only imaginehe was tired after a long shift and this affected his concentration.Decision under appeal[7] Judge Mackintosh observed the victim sustained quite serious injuries: adislocated left finger, a fracture to her left ankle, a cut to her left thumb and a minorcompression to the L1 section of her spine. As at September 2018, the date of hervictim impact statement, the victim had to rely on a walker to get around comfortably.4 New Zealand Police v Neeraj, above n 3, at [1].Her left hand was in a cast and her left leg in a "moon boot". She was unable to showerwithout help, could not cook and had to rely on family for support. While she had notbeen disadvantaged financially, she had been restricted physically and had not beenable to sleep well since the incident.[8] Judge Mackintosh then turned to s 107 of the Sentencing Act 2002 pursuant towhich an offender may be discharged without conviction. Judge Mackintosh notedshe had to be satisfied "the consequences of the conviction outweigh the seriousnessof the offence".5 The Judge observed no alcohol, or anything like that, was involvedin the incident and noted as well Mr Neeraj's willingness to participate in restorativejustice but that did not take place.6 Mr Neeraj had good job prospects. When heoriginally applied for his work visa he had a conviction for drink-driving as a youthwhich seemed not to deter Immigration New Zealand (INZ) from exercising itsdiscretion to grant Mr Neeraj a work visa.[9] The Judge then addressed Mr Neeraj's concern that his work visa would expireon 30 April 2019 and a conviction could prevent him obtaining a further visa.Judge Mackintosh took the view:7 that it is ultimately a matter for immigration to decide and whilst there issome risk, I am not satisfied that the risk is so great that the discharge oughtto be granted. So, the application is declined.[10] Mr Neeraj was fined $400 and ordered to pay court costs of $130. He wasdisqualified from driving for the statutory minimum period of six months.8The appealAppellant[11] Mr Jefferson, counsel for Mr Neeraj, submitted the Judge did not apply thethree-step process which the Court must engage in when considering an application todischarge without conviction under s 107 of the Sentencing Act 2000. Specifically,5 At [9].6 At [2].7 At [10].8 At [11].the Judge did not identify the gravity of the offence, did not identify the direct andindirect consequences of conviction nor provide an analysis of why she concluded theconsequences of a conviction are not disproportionate to the gravity of the offence. Inthose circumstances Mr Jefferson submitted the appeal court will undertake its ownanalysis de novo.9[12] Mr Jefferson took no issue with the disqualification of six months butsuggested an award of emotional harm reparation could be made pursuant tos 106(3)(b)(ii) in lieu of the fine and court costs imposed. More significantly,Mr Jefferson submitted the gravity of the offending in terms of Mr Neeraj's culpabilityis low, yet the consequence of a conviction is that there is a real and appreciable riskMr Neeraj will not be issued a character waiver by INZ and, in consequence, will notbe allowed to continue working and will have to leave New Zealand.Respondent[13] Mr Gullidge, for the respondent, submitted the Judge was cognisant of thegravity of the offending and the direct and indirect consequences of conviction. Inparticular, Her Honour was correct in considering the impact of the conviction on theappellant's immigration status was a matter for the immigration authorities.[14] Mr Gullidge accepted the Judge erred by regarding herself as having to besatisfied that the consequences of the conviction outweigh the seriousness of theoffence but that error resulted in no prejudice to the appellant given the test unders 107 is a stricter test than that applied by the Judge.Approach to appeal[15] Section 232 of the Criminal Procedure Act 2011 governs first appeals againstconviction. A first appeal court must allow a first appeal under subpart 6 of theCriminal Procedure Act if satisfied that —9 Citing Austin, Nichols & Co Ltd v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.(b) in the case of a Judge-alone trial, the Judge erred in his or herassessment of the evidence to such an extent that a miscarriage ofjustice has occurred; or(c) in any case, a miscarriage of justice has occurred for any reason.[16] In this context miscarriage of justice means:10 any error, irregularity, or occurrence in or in relation to or affecting the trialthat —(a) has created a real risk that the outcome of the trial was affected;or(b) has resulted in an unfair trial or a trial that was a nullity.[17] With specific regard to applications for discharge without conviction unders 107 of the Sentencing Act the Court of Appeal has determined that a miscarriage ofjustice will have occurred "for any reason" if the Judge erred in applying the s 107principles.11 The Court of Appeal also confirmed that a discharge without convictionis not a sentence and, conceptually, an appeal against the entering of a conviction is anappeal principally against conviction.12Discussion[18] In the course of the hearing I indicated my sympathy for Mr Neeraj's positionbut, also, my preliminary view that I was inclined to dismiss the appeal because to dootherwise would be contrary to principle. Having reflected further on counsels'helpful written submissions and oral argument, I am confirmed in that view.[19] The three-step process which s 107 requires involves:(a) assessing the gravity of the offence;(b) identifying the direct and indirect consequences of a conviction; and10 Criminal Procedure Act s 232(4).11 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [12].12 At [15].(c) considering whether those consequences would be out of all proportionto the gravity of the offending.13[20] Having undertaken these steps, the Court must consider whether or not toexercise its discretion to grant a discharge without conviction.[21] In Police v Filipo Collins J described the process in this way:14[53] The following four-stage process should be followed by a court whendeciding whether or not to discharge a defendant without conviction. The firstthree of these steps give effect to s 107 of the Act. The final step involves theexercise of the residual discretion conferred upon sentencing judges by s 106of the Act:(1) First, the Court should consider the gravity of the offence. Thisinvolves the Court considering all the aggravating andmitigating factors relating to the offending and the defendant.(2) Second, the Court should then identify the direct and indirectconsequences of conviction for the defendant. This involvesthe Court evaluating all relevant information. The Court doesnot have to be satisfied that the direct or indirect consequenceswill inevitably or probably occur. It is sufficient if the Court issatisfied that there is a "real and appreciable risk" that theconsequences will occur.(3) Third, the Court must then consider whether the consequencesare out of all proportion to the gravity of the offence.(4) Fourth, if the Court determines that the consequences of aconviction are out of proportion to the gravity of the offence theCourt must still consider whether it should exercise itsdiscretion under s 106 of the Act to grant a discharge withoutconviction. Rarely, however, will the Court not exercise itsdiscretion to grant a discharge without conviction when thecriteria for a discharge in s 107 of the Act are satisfied.[22] I do not agree that the Judge failed to properly apply the analytical steps. Whilethe Judge did not go through the steps in a structured way she did address the gravityof the offending. On the one hand it was a low-level offence in terms of the maximumpenalty of imprisonment being only three months.15 On the other hand the injuries tothe victim were "quite serious".16 The Judge referred also to factors which mitigated13 Adams on Criminal Law (online looseleaf ed) at [SA107.01]–[SA107.02], commentary and thecases cited.14 Police v Filipo [2016] NZHC 2573 at [53] (footnotes omitted).15 New Zealand Police v Neeraj, above n 3, at [9].16 At [2].the offending, such as the fact no alcohol was involved, and the referral to restorativejustice (even if that did not take place).17 Noting Mr Neeraj's current employment theJudge considered his good job prospects and that he had spent some considerable timein training.18[23] The Judge was manifestly cognisant of the potential consequences ofconviction for Mr Neeraj, namely the risk that when faced with Mr Neeraj's secondconviction within a period of approximately 12 months, INZ may view Mr Neeraj asan unsuitable candidate for a work visa.19[24] In considering (albeit erroneously) whether the consequences of the convictionoutweighed the seriousness of the offence the Judge said she could not second-guesswhat immigration may do in relation to his work visa.20 I do not regard the Judge'smisstatement of the legal test as constituting an error resulting in a miscarriage ofjustice. Section 107 requires the Judge to be satisfied the consequences are "out of allproportion" to the gravity of the offending not merely that they "outweigh" theseriousness of the offending. Given the Judge could not reach a view about whetherthe consequences of the conviction outweighed the seriousness of the offence it is onlylogical to assume the Judge would likewise have been unable to satisfy herself that theconsequences would be out of all proportion to the gravity of the offence, thatthreshold being so much higher. The Judge concluded that while there is some risk,the risk was not so great the discharge ought to be granted.[25] I share the Judge's assessment. As Mr Gullidge submitted in his detailedwritten submissions, should Mr Neeraj apply for a second work visa then, consistentwith the Operational Manual which guides INZ in these matters, a character check willbe carried out. Applicants who have been convicted of an offence punishable byimprisonment of three months or more will not normally be granted a temporary entryclass visa unless they are granted a character waiver. The appellant is already requiredto apply for a character waiver due to his earlier conviction for driving with excessbreath alcohol. The instant conviction for careless driving causing injury does not17 At [2].18 At [7].19 At [4] and [9].20 At [9].change that requirement. One can only speculate about the approach INZ will take tothe second conviction and the impact of the second conviction on any decision by INZwith regard to the grant of a character waiver.[26] Referring to a decision of the Immigration and Protection TribunalMr Gullidge submitted it was not unlikely a character waiver would be granted.21 Itis unnecessary for me to explore that argument as it takes me into the realm of merespeculation. While Judge Mackintosh considered there "is some risk",22 ultimately, itis not possible to be satisfied there is a real and appreciable risk of adverseconsequences for Mr Neeraj as a result of this conviction.[27] To my mind, a key factor in the proportionality analysis is the fact that, even ifdischarged without conviction, Mr Neeraj is obliged to inform INZ of the carelessdriving charge. What INZ makes of that charge — or conviction — when consideringthe good character criterion, is a matter for INZ. The Court of Appeal has confirmedthat where the circumstances of an applicant's offending bear close scrutiny, it will beappropriate for the Court to withhold its opinion on the likely effect of a conviction asthat is a question for the proper authorities.23 In this case that authority is INZ.[28] Judge Mackintosh's conclusion that, ultimately, it is for INZ to decide is in linewith Court of Appeal authority.[29] The appellant has not demonstrated error in the Judge's approach.[30] Before concluding I wish to record the following observations:(a) Section 8 of the Land Transport Act requires those who drive vehiclesto not drive them "carelessly or without reasonable consideration forother persons". In looking to his right towards oncoming traffic (thetraffic from the left being separated by a median strip) and not seeingthe complainant crossing the exit, Mr Neeraj was careless and therebyfell short of the statutory standard in s 8.21 Referring to Re (UI) (2017) NZIPT 204199.22 New Zealand Police v Neeraj, above n 3, at [10].23 R v Foox [2000] 1 NZLR 541, 17 CRNZ 216 (HC) at [39].(b) When Judge Mackintosh observed that obviously one has to be verycareful when driving, she did so in the course of acknowledging thesubmission that "this was really, simply a momentary lapse inconcentration".24 I accept Mr Jefferson's submission that all Mr Neerajhas achieved in New Zealand stands to be lost by a moment'sinadvertence.(c) I accept, as well, a further point which Mr Jefferson made with sometact and sympathy for the victim. A more robust citizen may not havesuffered the level of injury suffered in this incident. This victim'svulnerability may have tended to aggravate the offending.(d) That Mr Neeraj was willing to engage in restorative justice is to hiscredit. From my review of the court file it appears pre-conference workwas undertaken but a decision was made by a facilitator not to proceed.(e) Importantly also, as I have mentioned, no alcohol or drugs wereinvolved.Result[31] The appeal is dismissed._____________________________Karen Clark JSolicitors:Crown Solicitor's Office, Napier for Respondent24 New Zealand Police v Neeraj, above n 3, at [7].