MITTAL v R [2019] NZCA 20

MITTAL v R [2019] NZCA 20 [25 February 2019]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA686/2018[2019] NZCA 20BETWEEN NITIN MITTALAppellantAND THE QUEENRespondentHearing: 14 February 2019Court: Miller, Simon France and Peters JJCounsel: R L Thomson for AppellantE J Hoskin and Z A Fuhr for RespondentJudgment: 25 February 2019 at 2.00 pmJUDGMENT OF THE COURTA An extension of time to appeal is granted.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Peters J)[1] The appellant, Mr Mittal, appeals against his conviction and sentence on onecharge of doing an indecent act on a young person,1 for which he was sentenced totwo months' community detention and 12 months' intensive supervision.2 Inparticular, Mr Mittal appeals against Judge Cunningham's refusal to grant him adischarge without conviction.3[2] The appeal is brought on the ground that the Judge understated the likelyconsequences of a conviction and, in particular, that she failed to appreciate that it wasinevitable that Mr Mittal would be deported if convicted, rather than deportation beinga "real risk". As a result of this, counsel for Mr Mittal on appeal, Ms Thomson,submits that the Judge erred in determining that the consequences of a convictionwould not be out of all proportion to the gravity of the offence.4[3] The appeal is brought out of time. We grant Mr Mittal's application to extendtime, there being no objection from the Crown.Background[4] The offending occurred in October 2016. Mr Mittal, an Uber driver at the time,had been engaged to drive B, a 14-year-old boy, from his home to a local post office,and then to drive him home.[5] The following paragraphs of the Judge's sentencing notes describe the salientdetails of the offending. Before setting these out, we record that Mr Mittal wascharged in October 2016, and pleaded guilty in March 2017. There was a disputedfacts hearing in June 2017, and then Mr Mittal was sentenced in August 2017. Therelevant paragraphs are:[4] The victim's evidence [at the disputed facts hearing] was that whenhe got back into the car for the return trip, Mr Mittal invited him to sit in thefront seat, he had been in the back seat on the trip there. That Mr Mittal startedasking him whether he wanted to touch or did he like to touch [Mr Mittal'spenis]. B gave evidence, which I accepted, that on two occasions he said,"No," or, "No thanks." He said that Mr Mittal lifted up his jeans and he, the1 Crimes Act 1961, s 134(3). Mr Mittal has now served his sentence.2 R v Mittal [2017] NZDC 19320.3 At [17].4 Sentencing Act 2002, s 107.boy, put his hand down Mr Mittal's pants. He explained that the reason thathe did it was that he was concerned about the fact that Mr Mittal was in chargeof the car and he did not know what would happen if he did not do as he wastold.[5] I accepted the account of the boy and in my decision I set out why inpara (20). I also went on to say why I did not accept Mr Mittal's account. Atpara (24) I said, "I can appreciate Mr Mittal may have felt B was a willingparticipant because he did put his hand down Mr Mittal's pants, but that doesnot take into account B's evidence that twice he said no to Mr Mittal'sinvitation to touch him." At para (26) I said, "I find it proved that Mr Mittaldid ask B, a teenage boy who was under the age of 16, to touch his penis.While he did not compel B to do so under any direct threat of force, I amsatisfied that B did not consent to what happened. Rather, in his mind andbecause Mr Mittal was in control of the car he was afraid what would happento him if he did not."[6] There are two other points to mention. The first is that, initially, Mr Mittalclaimed that B initiated the contact, and that he complied with B's requests because Bsaid he had a gun. The second point is that Mr Mittal consistently denied theoffending, even at the disputed facts hearing after he had pleaded guilty.5District Court judgment[7] A judge may grant a discharge without conviction if the direct and indirectconsequences of a conviction would be out of all proportion to the gravity of theoffence.6 In determining whether the consequences would be so disproportionate, theJudge must assess the gravity of the offending having regard to the aggravating andmitigating factors of the offending and offender; identify the likely direct and indirectconsequences of a conviction; and then assess whether the latter are out of allproportion to the former.7[8] The Judge considered the offending in itself "moderately serious" but said thisassessment was reduced by Mr Mittal's prior good character, his diligence in hisstudies and employment, his marriage, and the fact that some of his children were bornin New Zealand. Mr Mittal does not challenge the Judge's characterisation of thegravity of the offence.5 R v Mittal [2017] NZDC 13055.6 Sentencing Act 2002, ss 106 and 107.7 Z (CA447/2012) v The Queen [2012] NZCA 599, [2013] NZAR 142 at [27]; A(CA747/2010) v R[2011] NZCA 328 at [13].[9] The next step for the Judge was to identify the likely direct and indirectconsequences of a conviction for Mr Mittal. She recognised that deportation"certainly is a real risk" and that, if Mr Mittal were not deported, a conviction for theoffending would be adverse to Mr Mittal's prospects of gaining employment inparticular fields.[10] The Judge, however, was not satisfied that these likely consequences ofconviction would be out of all proportion to the gravity of the offence, and she declinedthe application accordingly.Discussion[11] As we have said, Ms Thomson submits that the Judge ought to haveappreciated that it was inevitable Mr Mittal would be deported if convicted, and thatsuch was not merely a possibility. Given that, Ms Thomson submits that the balancingexercise came down clearly in favour of granting Mr Mittal the discharge sought.[12] As to deportation, following his conviction in late-August 2017, in early 2018Mr Mittal was served with a "deportation liability" notice. The Immigration andProtection Tribunal recently dismissed Mr Mittal's appeal against deportation and, asmatters presently stand, Mr Mittal will shortly be required to leave New Zealand.8[13] We do not accept the submission that the Judge erred in the manner suggested.First, although the Judge said, and quite correctly, that a conviction would renderMr Mittal "liable to deportation", the words quoted in [9] above show that the Judgewas not under any illusion about Mr Mittal's prospects in that regard. Secondly, evennow, deportation is not inevitable. Mr Mittal may have recourse to the High Court ifhe meets the statutory criteria in the Immigration Act 2009,9 or he may applyindependently of that to the Minister of Immigration for relief.10[14] We do not wish to detract from any future submissions that Mr Mittal may wishto make with a view to remaining in New Zealand, including whether he and his wife8 Mittal v The Minister of Immigration [2018] NZIPT 600491.9 Immigration Act 2009, s 245.10 Immigration Act 2009, s 172.continue to enjoy the support of their parents who are resident in India. The issue forus, however, is whether the Judge erred in her determination. We are not persuadedthat she did and indeed agree that the likely consequences of conviction are not out ofall proportion to the gravity of the offence. This was "skin-on-skin" offendingcommitted against a 14-year-old boy entrusted to Mr Mittal's care for a confinedpurpose. Mr Mittal may have thought he had B's consent, but consent is not a defenceto the charge, nor did the Judge find that Mr Mittal reasonably formed that view.[15] It follows that we dismiss this appeal.Result[16] The application for an extension of time to file the notice of appeal is granted.[17] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent