NGOC HONG TRUONG v R [2023] NZCA 97

NGOC HONG TRUONG v R [2023] NZCA 97 [5 April 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA428/2022[2023] NZCA 97BETWEEN NGOC HONG TRUONGAppellantAND THE KINGRespondentHearing: 21 February 2023Court: Gilbert, Ellis and Davison JJCounsel: J C Harder and N J Wright for AppellantM R L Davie for RespondentJudgment: 5 April 2023 at 3 pmJUDGMENT OF THE COURTA The application for an extension of time is granted.B The application to file fresh evidence on appeal is granted.C The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Davison J)[1] Ngoc Truong (the appellant) applies out of time for leave to appeal herconvictions and sentence. She seeks to have her convictions quashed, and to bedischarged without conviction pursuant to s 106 of the Sentencing Act 2002.[2] On 14 February 2019 the appellant pleaded guilty to one charge of cultivatingcannabis1 and one charge of theft of electricity.2 Convictions were entered on bothcharges. The appellant was sentenced on 11 April 2019 in the District Court atManukau to five months' community detention, eight months' supervision, andordered to pay reparation of $2532.55.3[3] On 27 June 2022 the appellant received a deportation liability notice fromImmigration New Zealand (INZ). She says that when sentenced in April 2019 she didnot appreciate that the entering of convictions would trigger liability for deportationpursuant to s 161 of the Immigration Act 2009, and that she was not advised by hercounsel that she could apply to be discharged without conviction.[4] This appeal is brought over three years out of time. The Crown accepts thatthe appellant has explained the reasons for her delay in bringing her appeal whichrelate to her ill health, and it does not oppose the granting of an extension of time toappeal. We are satisfied by the appellant's explanation for the delay, and that it isappropriate to grant an extension of time for the filing of her appeal. The Crown alsodoes not oppose admission of the affidavits filed by the appellant in support of herappeal and seeks to admit fresh evidence on the appeal itself. We also grant leave toadmit the affidavits filed by the appellant and respondent as fresh evidence forthe appeal.BackgroundThe offending[5] The appellant's offending was committed over a period of 11 months betweenFebruary and December 2017. She and her husband, Mr Hoang, were jointly charged.Mr Hoang pleaded guilty and was sentenced to nine months' home detention on18 January 2019.4 Sentencing the appellant on 11 April 2019 Judge Bergseng said: 51 Misuse of Drugs Act 1975, s 9(1).2 Crimes Act 1961, ss 219(1)(a) and 223(b).3 R v Truong [2019] NZDC 26677 [Sentencing decision]. At [15] the sentencing notes refer to areparation order for $5232.55, but the Court Trial Record sheet signed by Judge Bergseng recordsthe reparation as $2532.55.4 R v Tran [2019] NZDC 806 at [17].5 Sentencing decision, above n 3.[2] The background to this offending is that in 2017 an investigation wasundertaken by the police into the cultivation and supply of cannabis by aVietnamese syndicate. That investigation found you to be part ofthe syndicate. Cannabis was being cultivated by a number of players inthe syndicate, and there were several addresses throughout Auckland that wereinvolved. You were not one of the main players.[3] The main players were the defendants Stone and Mu. They weresupplying to you and your husband equipment for cultivation of cannabis.[4] When a search warrant was executed at your address there were50 juvenile plants located. They were between 500 millimetres and800 millimetres in height. There were also 23 seedlings. The value ofthe potential crop from those plants as seedlings was put to be somewherebetween $21,900 and $65,700. Police also found that the power meter at youraddress had been tampered with, so that the power was not passing throughthe meter. Power used was not being recorded. The value of the power lostover that period has been calculated at $5075 excluding GST.[6] The Judge noted that the starting point adopted for Mr Hoang's sentencing onthe same charges was two and a half years' imprisonment. He accepted however, thatthe appellant had played a lesser role. He found that the appellant's offending fellwithin category 2 of R v Terewi and a starting point range of between two andfour years' imprisonment would be appropriate.6 Having regard to the appellant'slesser role the Judge adopted a starting point of two years' imprisonment in respect ofboth charges.7[7] The Judge then allowed a discount of four months to take account ofthe appellant's lack of previous convictions and health issues. He also allowed afurther four months discount to take account of the appellant's guilty pleas, to reachan adjusted starting point of 16 months' imprisonment. He then considered acommunity-based sentence. Having regard to the appellant's lesser role inthe cannabis cultivation enterprise, her mental health issues, and the fact that she hadher young child to look after, the Judge concluded that a sentence of communitydetention was the least restrictive sentencing outcome that was appropriate inthe circumstances.6 R v Terewi [1999] 3 NZLR 62 (CA) at [4].7 Sentencing decision, above n 3, at [9].The appellant's background and immigration status[8] The appellant was born in Vietnam and is a Vietnamese citizen. She haspermanent residence visa status in New Zealand.8 She came to New Zealand inAugust 2010 as an overseas student when she was 16 years old and was granted astudent visa. She resided with a sponsoring family and attended PapatoetoeHigh School. Shortly after leaving school at age 18 she married a Vietnamese nationalwho had New Zealand citizenship. After two years this first marriage ended inseparation. On 24 May 2013 the appellant was granted a residence class visa.[9] The appellant married Mr Hoang in June 2016. Mr Hoang is aVietnamese national who was then living in New Zealand unlawfully.[10] The appellant and Mr Hoang commenced their commercial cannabiscultivation operation in February 2017 and continued until they were both arrested andcharged on 14 December 2017.[11] As Mr Hoang was illegally in New Zealand, on completion of his homedetention sentence in September 2019 he was deported to Vietnam. The appellant alsoleft New Zealand and travelled to Vietnam in late 2019 to be with her husband.Their son born in July 2018 accompanied her. However, after around five months, on5 March 2020 the appellant returned to New Zealand leaving their son in the care ofhis father and her parents. In June 2020 the appellant's daughter was born inNew Zealand.[12] In April 2021 the appellant and Mr Hoang agreed to separate, and in July 2022the appellant's son returned to live in New Zealand. Both of the appellant's childrenhaving been born in New Zealand are New Zealand citizens. They are nowapproaching five and three years old respectively.[13] Upon her convictions being entered on 14 February 2019 in respect ofoffending committed between February and December 2017, the appellant becameliable to deportation. Section 161(1)(b) of the Immigration Act provides that a8 The appellant was granted a permanent residence visa in 2015.residence class visa holder will be liable to deportation if convicted of an offence forwhich the court has the power to impose imprisonment for a term of two years ormore if the offence was committed not later than five years after the person firstheld a residence class visa. As the appellant was first granted a residence visa on24 May 2013, she comes within the terms of s 161(1)(b).[14] Although INZ had noted the appellant's s 161(1)(b) deportation liability inOctober 2019, no action was taken immediately as it learned that the appellant hadengaged with mental health services. Having regard to the possible effect thatthe prospect of deportation may have on the appellant, INZ considered that it wasinappropriate to pursue the matter at that time. Enquiries conducted by INZ inApril 2022 ascertained that the appellant had been discharged from mental healthservices in November 2020. Immigration New Zealand then took steps to locatethe appellant, and in June 2022 she contacted INZ and provided her residentialaddress.[15] By letter dated 27 June 2022 INZ wrote to the appellant and notified her thatbecause she had been convicted and sentenced on 11 April 2019 on one charge ofcultivating cannabis and one charge of theft (over $1000) she was liable to deportationunder s 161(1)(b) of the Immigration Act.9 The letter also stated:A Delegated Decision Maker (DDM) will now decide whether yourdeportation should proceed. You are invited to make submissions on thismatter, which will be considered by a DDM before a decision is made.You may wish to comment on the grounds for your deportation liability, yourpersonal circumstances, or the circumstances of your family.A deportation questionnaire is enclosed for you to complete should you wishto do so. You and your family are also welcome to provide additionalsubmissions and documents in support of your case. Please provide copies ofdocuments only; originals may not be returned. All information provided mustbe in English or include an English translation.If a DDM decides that you should be deported, he or she will sign adeportation liability notice which will be served on you. Your right to appealagainst your liability for deportation, if applicable will be outlined inthe deportation liability notice. If a delegated decision maker decides that9 The INZ letter was sent to a licensed immigration adviser engaged by the appellant.your deportation should not proceed, your deportation liability will besuspended or cancelled.[16] Since being advised of this appeal INZ has suspended taking any further stepsto progress the matter pending determination of the appeal.EvidenceThe appellant[17] In her affidavit in support of her appeal the appellant says that she pleadedguilty to the charges on the basis that she was a party to the offending by Mr Hoang.She says that at the time she was not aware that a conviction could have anyconsequences for her immigration status, or that she would be liable for deportation.She says that her counsel, Mr John Corby, did not ask her about her immigration statusand she did not raise the matter with him. She says that Mr Corby did not tell her thatshe could apply for a discharge without conviction.[18] The appellant says that she understood that once she had been sentenced andhad completed her sentence of community detention, apart from paying offthe reparation ordered by the Court, the whole matter would be behind her. She saysthat she heard nothing more about the matter until early June 2022, when an INZofficer left a business card at her address asking her to contact them. She says thatwhen she telephoned INZ she was told over the phone that she was liable fordeportation as a result of her convictions. She says that she subsequently receivedthe 27 June 2022 letter from INZ advising that because of her 2019 convictions shewas liable for deportation. She says that had she been aware that the conviction forthe charges she was facing would have immigration consequences, she would haveasked her lawyer what steps could be taken to avoid that happening. Further, if shehad known that she could apply for a discharge without conviction on the grounds ofher risk of deportation, she would have done so.[19] The appellant says that the stress of the criminal proceedings which followedher arrest and being charged in December 2017, combined with Mr Hoang's imminentdeportation, and her pregnancy with their first child, caused her to suffer a significantdecline in her mental health. She says however that the prospect of her husband'sdeportation was by far the main stressor. She says that she was placed in the care ofthe Maternal Mental Health team at Counties Manukau District Health Board.The mental health team clinical notes produced by the appellant which coverthe period between March 2018 and November 2020 confirm the appellant's accountof her serious mental health deterioration and the treatment she received during thatperiod. The clinical notes show that in November 2020 the appellant was dischargedfrom the care of the mental health team and transferred to the care of her generalmedical practitioner.[20] The appellant says that after Mr Hoang was deported, she returned to Vietnamto be with him. However, after five months she decided that she did not want to stayin Vietnam and she returned to New Zealand in March 2021. Within several monthsthe appellant and Mr Hoang agreed to separate.[21] The appellant says that based on the legal advice she has received, sheunderstands that there is a real risk that she will be deported as a result of her 2019convictions. In her affidavits the appellant details what she anticipates will bethe adverse consequences for her and her children if she is deported. She says thatthe prospect of deportation since receiving the INZ letter in June 2022 has been veryunsettling and as a result she has again been receiving mental health counselling.[22] The appellant says that she is now living in Auckland with her two youngchildren. She is employed as a beauty technician, and works between three andsix hours a day, six days a week, so that she can care for her children when they arenot at the day-care centre they attend. She says that she wishes to remain living inNew Zealand and raising her children here because of the educational and workopportunities that living in New Zealand will provide them, and because her sonsuffers from asthma and this has been managed much better since his return toNew Zealand from Vietnam in August last year. She says that she is worried that ifshe is deported and her children return with her to Vietnam, they may decide to returnto live and study in New Zealand when they are older. If that were to happen and sheherself could not return to New Zealand she would suffer considerable hardship frombeing separated from them.[23] In support of her appeal the appellant has filed an affidavit by Stewart Dalleywho is a lawyer specialising in immigration law. Mr Dalley says that by reason of herconvictions the appellant comes within s 161(1)(b) of the Immigration Act and is liablefor deportation. He says that the first step in the process is a questionnaire to becompleted by the appellant in order to provide INZ with information regarding her andher circumstances relevant to New Zealand's international human rights obligations.The application enables INZ to prepare a submission for the Minister of Immigration(the Minister), or the Minister's delegate, to determine whether a deportation liabilitynotice (DLN) will be served on the appellant. If a DLN is served on her she has a rightof appeal to the Immigration and Protection Tribunal. She cannot lodge an appealuntil a DLN is issued, and this process will take as long as the INZ officials determine.[24] Mr Dalley says that if the appellant is issued with a DLN and files an appealshe will have to overcome a high threshold test in order to be successful. He notesthat pursuant to s 207(1) of the Immigration Act the appellant would need todemonstrate exceptional circumstances of a humanitarian nature that would make itunjust or unduly harsh for her to be deported, and that it would not, in allthe circumstances, be contrary to the public interest to allow her to remain inNew Zealand. Mr Dalley says that in his view, given the appellant's circumstances,any appeal against her deportation will clearly lack exceptionality.[25] Mr Dalley notes the appellant's circumstances, including her health issues andthe welfare and best interests of the two children, are relevant considerations to betaken into account. However, he says that having regard to the appellant's backgroundof having lived in Vietnam until she was 16 years old, the fact that her son lived inVietnam for two and half years and her daughter for several months, and that theirfather is now living back in Vietnam while the appellant has no other family residinglawfully or permanently in New Zealand, he does not consider a finding of exceptionalcircumstances of a humanitarian nature would be made.[26] Mr Dalley says that in his view, if the appellant's convictions remain, she willinvariably be served with a DLN, and while she will have the statutory right of appealagainst deportation, such an appeal will be highly likely to fail. He says that the effectof the appellant's convictions is a real risk that she will be deported from New Zealand,while a discharge without conviction will mean that the appellant could not be madeliable for deportation.[27] The appellant gave evidence at the hearing of her appeal and wascross-examined by Mr Davie for the Crown. Under cross-examination she confirmedthat she had understood the contents of the Residence Application she made inJune 2012 which includes a declaration that she was aware that convictions for certaincriminal offences committed up to 10 years after first being granted a residence classvisa can result in deportation. However, she denied that around the time of Mr Hoang'ssentencing in January 2019 she had told a medical practitioner working withthe Maternal Mental-Health team that she herself was at risk of deportation as wasrecorded in a clinical note. She maintained that she did not know that the effect ofthe convictions entered in February 2019 rendered her liable for deportation.[28] The appellant having waived solicitor-client privilege, the Crown filed anaffidavit by Mr Corby regarding his advice to the appellant concerning sentence.Mr Corby says that having regard to the sophisticated and commercial nature ofthe cannabis cultivation operation which the appellant had admitted, the question ofapplying for a discharge without conviction did not occur to him. He says that he wasconcerned to obtain the least restrictive sentence and following discussions withthe prosecutor an amendment to the summary of facts was agreed which describedthe appellant as having played a supporting role to Mr Hoang. Mr Corby says thatwhile the appellant expressed concerns that Mr Hoang might face deportation, shenever mentioned having any concerns about being deported herself.SubmissionsThe appellant[29] Mr Harder, for the appellant, submits that the convictions which result inthe appellant being liable for deportation is a consequence out of all proportion tothe gravity of her offending. He says that an assessment of the gravity ofthe appellant's offending is informed by the fact that her husband was the principaloffender in the cannabis cultivation operation, and the appellant's role was to act onhis instructions and manage the cultivation when he was absent from the property.He notes that at the appellant's sentencing the Crown had acknowledged that she hadplayed a lesser role than her husband.[30] Mr Harder says that while the offending itself was moderately serious, whenthe appellant's lesser role is considered, her offending could be described as being inthe range of low to moderately serious. He submits that an assessment of the gravityof the appellant's offending is also informed by her actions following the offendingitself, including her guilty pleas which were entered shortly after the Crownacknowledged that she played a lesser role and agreed to amend the prosecutionsummary of facts.10 He says that it is also relevant that the appellant was 22 years oldat the time and was acting at the direction of her husband out of naivety and loyalty.Counsel notes that the appellant had no previous convictions and was otherwise aperson of good character. He also notes that in the five-year period since beingarrested and charged for her role in the cannabis operation, the appellant has notre-offended.[31] Mr Harder says that the appellant has now served her sentence and has paidthe reparation she was ordered to pay. He says that she has suffered the consequencesof the break-up of her family unit. She has also suffered serious mental health issueswhich have resulted from the stress and anxiety caused by the legal proceedings,the prospect of her husband's deportation, and her circumstances of living alone inNew Zealand with responsibility for caring for her two young children. When all ofthese factors are taken into account, the gravity of the appellant's offending isappropriately placed at the lower end of the range.[32] Mr Harder submits that the effect of the convictions which trigger the operationof s 161(1)(b) of the Immigration Act and which give rise to a real risk of the appellantbeing deported are consequences out of all proportion to the gravity of her offending.He submits that the appellant's situation can be distinguished from those casesinvolving temporary visa holders, where the conduct involved in their offendingtriggers immigration consequences rather than the imposition of a conviction whichitself triggers liability for deportation.1110 Relying on Delaney v Police HC Wellington CRI-2005-485-22, 22 April 2005 at [29].11 Sok v R [2021] NZCA 252; and Bong v R [2020] NZCA 94.[33] Mr Harder says that having made what was a "devastating decision" to leaveher husband in Vietnam and return to live in New Zealand with her children,the appellant is now faced with a second round of severe consequences which flowdirectly from the entering of the convictions. He says that the impact of theseconsequences is compounded by the fact that the prospect of deportation first arose inJune 2022, some three and a half years after the convictions were entered, and wellafter the appellant had completed her sentence and paid the reparation ordered.Mr Harder submits that in these unusual circumstances, where the appellant hasalready served the penalty determined by the District Court to be appropriate for heroffending, the further consequences of a real risk of deportation should readily beregarded as being out of all proportion to the gravity of her offending. He says thatthe sentencing Judge was not informed of the immigration consequences of enteringconvictions, and as a result he did not consider the question of whether the appellantshould be discharged without conviction. He accordingly submits that the Courtshould allow the appeal and discharge the appellant without conviction on the charges.The respondent[34] Mr Davie for the respondent, submits that the appellant has failed to show thatshe should be discharged without conviction. The Crown submits that the gravity ofthe appellant's offending itself is moderate to serious having regard to its purelycommercial purpose, duration, sophistication, and the quantity of cannabis thatthe plants were capable of producing. The Crown says that while the appellant hasidentified a number of mitigating factors, they are not of such weight as would warrantan assessment of the gravity of appellant's offending as being low.[35] Mr Davie notes that if INZ resumes its work on the appellant's case andprepares a briefing paper for the Minister (or his delegate), the appellant will havethe opportunity to make submissions to be considered by the Minister when decidingwhether to order that a deportation liability notice be served on the appellant. He notesthat in addition to deciding whether to order the service of a deportation liability noticethe Minister has the options of cancelling the appellant's liability for deportation, orsuspending her liability for deportation for up to five years, on conditions such as thatshe does not re-offend.12 Mr Davie further submits that if the Minister directs that adeportation liability notice is to be served on the appellant, she will then have the rightto appeal against the Minister's decision to the Immigration and Protection Tribunalpursuant to s 206(1)(c) of the Immigration Act.[36] The Crown does not disagree with the view expressed by Mr Dalley that thereis a real and appreciable risk that the appellant will be served with a deportationliability notice. However, it takes issue with Mr Dalley's opinion that an appeal bythe appellant to the Immigration and Protection Tribunal pursuant to s 206(1)(b) ofthe Immigration Act on humanitarian grounds would be "highly likely to fail".The Crown submits that this Court should regard Mr Dalley's view and his predictionof what other decision-makers may decide on that issue as being of little assistance orrelevance in the context of this appeal.[37] As to whether the appellant has shown that the consequences of her convictionsare out of all proportion to the gravity of her offence, the Crown submits thatthe offending is of moderate seriousness and the consequences of conviction, whilepotentially adverse, are nevertheless towards the lower end of the scale, and not out ofall proportion to the gravity of the offence. The Crown submits that the circumstancesand impact of a possible deportation of the appellant on her and her children arematters which will be given due consideration by the Minister when deciding whetherto order the service of a deportation liability notice or cancel or suspend her liabilityfor deportation.Sentencing Act[38] Pursuant to s 106 of the Sentencing Act, where a person who is charged withan offence is found guilty, or pleads guilty, the court may discharge the offenderwithout conviction. Section 107 provides that the court must not discharge an offenderwithout conviction unless it is satisfied that the direct and indirect consequences of aconviction would be out of all proportion to the gravity of the offence.12 Immigration Act, s 172.In Z (CA447/2012) v R this Court described a four-step process to be adopted bythe court when considering discharging an offender without conviction under s 106:13(a) consider all aggravating and mitigating factors of the offence andthe offender to assess the gravity of the offence;(b) identify the direct and indirect consequences of conviction forthe offender;(c) consider whether those consequences are out of all proportion tothe gravity of the offence; and(d) if the court determines that the consequences are out of all proportion,it must still consider whether it should exercise its residual discretionto grant a discharge, although it will be a rare case where a court willdecline to grant a discharge in such circumstances.[39] In considering what the direct and indirect consequences of conviction are,the court must be satisfied that there is a real and appreciable risk that the consequenceof a conviction identified by a defendant could occur.14Jurisdiction[40] There was no application in the District Court for the appellant to be dischargedwithout conviction. Therefore, the appellant is not appealing against a decision ofthe Judge to refuse discharge under s 106 of the Sentencing Act.[41] In Bedford v R this Court considered a conviction and sentence appeal onthe grounds that the appellant did not appreciate the consequences of his convictionon the immigration status of his wife and children.15 The appellant argued he shouldhave been discharged without conviction. It was found an appellate court does havejurisdiction to consider an appeal against conviction and sentence on the grounds that13 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27][28].14 R v Taulapapa [2018] NZCA 414 at [22].15 Bedford v R [2021] NZCA 395.the offender should have been discharged without conviction where there is a changeof circumstances or where fresh evidence becomes available when there was noapplication for discharge at first instance.16Discussion[42] Addressing the first of these four steps, we consider that the appellant'soffending itself was moderately serious.[43] We consider that the appellant's cannabis cultivation offending was correctlyassessed by the sentencing Judge as category two offending in terms of R v Terewi andwarranted a starting point of two years' imprisonment. The prosecution summary offacts on which the appellant's pleas of guilty were entered describes the cannabiscultivation operation as comprising 50 mature juvenile cannabis plants rangingbetween 400mm and 600mm in height as well as 23 cannabis seedlings of varioussizes. As noted by the Judge, it was estimated that the cannabis could have produceda crop with a potential value of between $21,900 and $65,700. The summary of factsalso noted that while the appellant was an active participant in the cultivation, sheplayed a supporting role to her husband, who was a main point of contact with otheroffenders and who provided the appellant with instructions on how to managethe cultivation when he was not present.[44] We also find that the sentencing Judge appropriately recognised the mitigatingfeatures of the offending including the appellant's lesser role compared to her husband,and the appellant's personal mitigating factors in the discounts he allowed whichresulted in the imposition of a sentence of five months' community detention, witheight months' supervision and an order for the payment of restitution.[45] Turning to step two and the direct and indirect consequences of conviction forthe appellant, we note that the principal consequence advanced on behalf ofthe appellant is that the convictions render her liable to deportation under s 161(1)(b)of the Immigration Act. Once a deportation liability notice is served on her, it issubmitted her prospects of a successful appeal to the Immigration and Protection16 At [18].Tribunal are poor because of the difficulty she will face of satisfying the high thresholdof showing the existence of exceptional circumstances of a humanitarian nature thatwould make it unjust or unduly harsh for her to be deported. However we considerthat submission overlooks the appellant's ability to make submissions to the Ministerbefore a decision is made as to whether INZ will proceed to issue a DLN.[46] As the holder of residence class visa issued to her on 24 May 2013 upon beingconvicted of offences in respect of which the court had power to impose a term ofimprisonment of two years or more and committed within five years after she wasgranted the residence class visa, the appellant becomes liable to deportation.[47] Section 161(1)(b) relevantly provides:161 Deportation liability of residence class visa holder convicted ofcriminal offence(1) A residence class visa holder is liable for deportation if he or she isconvicted, in New Zealand or elsewhere,—(a) .(b) of an offence for which the court has the power to imposeimprisonment for a term of 2 years or more, if the offence wascommitted not later than 5 years after the person first held aresidence class visa; or[48] However, the issue of a deportation liability notice is not automatic.17 Where aperson is convicted and becomes liable for deportation under s 161, the first step takenby INZ is the preparation of a briefing paper for the Minister (or his or her delegate),for the Minister to consider whether to order that a deportation liability notice beserved on the convicted person. This process is described in the letter dated 27 June2022 which was sent to the appellant. As set out above, the letter advised the appellantthat because of her convictions she was liable to deportation and that a DelegatedDecision Maker (DDM) "will now decide whether [the appellant's] deportation shouldproceed." The appellant was invited to make submissions on that matter, and the letteradvises that any submissions will be considered by a DDM before a decision is made.17 See Zhu v R [2021] NZCA 254 at [12].[49] Section 172 of the Immigration Act contains the power for the Minister at anytime, to cancel a person's liability for deportation,18 or suspend a residence visa classholder's liability for deportation for a period not exceeding five years subject to theircompliance with conditions stated in a written suspension notice.19 The appellant willhave an opportunity to make submissions which will be considered by a DDM beforea decision is made. The appellant's right to make submissions is clearly explained inthe 27 June 2022 letter sent to her by INZ.[50] These provisions of the Act and the 27 June 2022 letter make it clear that beforethe Minister makes a decision as to whether to order the service of a deportation notice,the appellant will have an opportunity of making written submissions to the Ministerregarding all of the matters she considers to be relevant to the decision as to whethera deportation notice should be served on her. The outcome of that process andthe Minister's decision cannot be anticipated or predicted by the Court. In the eventthat the Minister determines that a deportation liability notice should be issued andserved on the appellant, she will have a right of appeal to the Immigration andProtection Tribunal on humanitarian grounds pursuant to s 206(1)(c) of theImmigration Act.[51] We agree with the Crown submission that in his review of the steps to befollowed by INZ, although Mr Dalley referred to the questionnaire to be completed bythe appellant as the first step, he did not refer to the process by which the appellantwill have an opportunity to make written submissions to be considered by the Ministerbefore he or she decides whether to order that a deportation liability notice be servedon the appellant.[52] In our view the process by which the appellant will have an opportunity tomake submissions regarding whether her deportation should proceed, which will beconsidered by the Minister before a decision is made as to whether a deportationliability notice is to be served on her, is significant. The appellant will have anopportunity to put her whole history before the Minister for his or her considerationand explain her concerns regarding the impact that her deportation would have on her18 Immigration` Act 2009, s 172(1).19 Section 172(2).and her children. While the imposition of the convictions has the effect of involvingthe appellant in the process by which the Minister will determine whether or not toproceed with service of a deportation liability notice on her, and that process gives riseto a real and appreciable risk of her deportation, before a decision to proceed withdeportation is made, the Minister is required to consider any written submissions madeby the appellant, and to also consider whether to cancel or suspend the appellant'sdeportation liability so that deportation does not necessarily follow. The Minister canbe expected to take all relevant considerations into account in making his or herdecision.[53] As this Court observed in Sok v R:20[47] It is usually the case that immigration processes must be commenced,and adverse decisions made by immigration authorities, before a person whohas committed an offence is compelled to leave the country. A court mayaccept that during a given process the person will be heard on mitigating andpersonal circumstances and the outcome will be determined by thosecircumstances rather than the fact of a conviction. The offending is a fact thatthat has been admitted or proved and the Court's view of its gravity will be amatter of record. In such cases courts usually find the outcome a consequenceof the offending behaviour rather than the conviction.[48] This approach is sometimes justified for reasons of institutionalcompetence and comity, as Katz J remarked in Singh v Police.Immigration authorities possess expertise and enjoy access to information —for example, concerning conditions in a prospective deportee's country oforigin — that is generally not available to courts. Their processes allow themto scrutinise humanitarian circumstances that are said to justify allowing aperson to remain in New Zealand. By contrast, a court's knowledge is usuallybased on an affidavit from the applicant and perhaps another from animmigration lawyer. Rarely is evidence of this kind tested.[49] Courts usually assume, in the absence of evidence to the contrary thatimmigration authorities will take relevant considerations into account.But there are cases in which courts have accepted that authorities may decidethe offender's status on the conviction alone, ignoring the circumstances of anoffence that is a minor example of its kind. In such cases as Lang J observedin Clarabel v Police, courts may be willing to base the decision to convict ordischarge on the probability that the offender will be deported.[50] The cases sometimes caution against "usurping" or "pre-empting"immigration powers. It is strictly inaccurate to speak of a discharge usurpingthe authority of officials or the Minister or the Tribunal; the Court is exercisingits own jurisdiction under s 106 of the Sentencing Act, and that is so even incases where an offender is not liable to deportation unless a conviction isentered. It is more accurate to say that legislative policy decisions and20 Sok v R, above n 11 (footnotes omitted).statutory powers and processes may not only establish consequences for anoffender but also determine whether those consequences are the product of aconviction and influence the proportionality assessment.[51] Courts may distinguish between liability to deportation and the riskthat a person will ultimately be deported, holding that they do not "usurp"immigration powers by granting a discharge where the offending is not seriousand exposure to deportation liability would be a disproportionate consequencein itself. In such cases the court need not make predictions about whatimmigration authorities will do. This Court's decision in Rahim v R appearsto fall into this category. The cases involve offending that was not intrinsicallyserious, or which was not a serious example of its kind, and in which therewere substantial personal mitigating features.[54] We do not consider this case to be one of those referred to in Sok wherethe offending involved was not intrinsically serious or was not a serious example ofits kind.[55] As the appellant's convictions do not inevitably result in her being deported,there is a statutory process by which the merits of the appellant's grounds forcancellation or suspension of her deportation will be considered before a decision ismade that she be deported, and she will have a right of appeal to the Tribunal againstsuch a deportation decision if one is made, we find that those consequences ofconviction are not out of all proportion to the gravity of the offences.[56] While there is cogent evidence supporting the appellant's claim to havesuffered significant mental health issues as a result of her anxiety over her husband'sdeportation and the prospect that she too may be deported, those matters together withother factors, such as: the welfare interests of her two children; the absence of anyfurther offending; and the appellant's now established and settled life with her childrenin New Zealand, are best considered by the Minister in deciding whether or notdeportation should proceed, or if deportation is to be suspended what conditions areappropriate to impose. The Minister and the Tribunal (if there is an appeal) will bebetter informed than the Court is to assess and determine the merits of the appellant'scase and her grounds for not being deported, in light of the offending for which shewas convicted.[57] We accordingly find that the appellant has failed to show the direct and indirectconsequences of conviction would be out of all proportion to the gravity of the offence.Where the requirement in s 107 of the Sentencing Act is not satisfied, the Court mustnot grant a discharge under s 106.[58] We consider that the circumstances in which the appellant's sentencingoccurred and in which the appellant's counsel did not make an application for her tobe discharged without conviction has not resulted in a miscarriage of justice. In ourview, had the appellant made an application to the Judge to be discharged withoutconviction, that application would have failed, as the consequences of the convictionsare not out of all proportion to the gravity of the appellant's offences.[59] We therefore dismiss the appeal.Result[60] The application for an extension of time is granted.[61] The application to file fresh evidence on appeal is granted.[62] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent