SOK v R [2021] NZCA 252

SOK v R [2021] NZCA 252 [18 June 2021]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF THE COMPLAINANT PROHIBITED BYS 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA679/2020[2021] NZCA 252BETWEEN PHEASETH SOKAppellantAND THE QUEENRespondentHearing: 24 March 2021Court: Miller, Brewer and Dunningham JJCounsel: E P Priest for AppellantB F Fenton and S E Trounson for RespondentJudgment: 18 June 2021 at 10.00 amJUDGMENT OF THE COURTA The application to adduce fresh evidence on appeal is granted.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)Table of ContentsGravity of the offence [2]Consequences of conviction [13]Immigration status then and now [14]Evidence of immigration consequences [18]The evidence in the District Court [19]The sentencing Judge's assessment [22]The new evidence in this Court [23]Submissions [38]Immigration consequences and s 107 disproportionality [40]Real and appreciable risk that a consequence will happen [41]Causation [42]Expert evidence of immigration processes and practice [53]Assessment: immigration consequences in Mr Sok's case [57]Failure of character waiver [57]Application for a temporary visa from offshore [60]Application to the Minister under s 61 [65]Employment and travel [66]Employment [67]Travel [69]The balancing exercise [70]Disposition [75][1] Mr Sok was denied a discharge without conviction under s 107 of theSentencing Act 20021 on a charge of injuring a five-month old baby with recklessdisregard for the baby's safety.2 He says on appeal that Judge Skellern was wrong todeny him a discharge, principally because he will likely face deportation to his nativeCambodia and he says that is a consequence of his conviction.Gravity of the offence3[2] The victim was in Mr Sok's care for a brief period on 20 March 2018, withMr Sok's own infant child, when he was injured. The summary of facts records that1 R v Sok [2020] NZDC 24481 [DC Judgment].2 Crimes Act 1961, s 189(2).3 It is settled law that "gravity of the offence" in s 107 of the Sentencing Act 2002 takes into accountthe aggravating and mitigating circumstances of the offending and the offender: Z (CA447/2012)v R [2012] NZCA 599, [2013] NZAR 142 at [27]–[28], citing A (CA747/2010) v R [2011] NZCA328 at [25] and affirmed in DC (CA47/2013) v R [2013] NZCA 255 at [34]–[35].Mr Sok's acts resulted in the "rapid acceleration and deceleration movement" of thebaby's head. In other words, the baby appears to have been shaken.[3] Ms Priest resisted this inference, suggesting that the injury may have resultedfrom being dropped. But the charge necessarily imports that Mr Sok injured the babywith reckless disregard for its safety; that is, he knew the risk of injury but went aheadanyway. The most lenient view of it is that he suffered a momentary loss of controlwhen dealing with an unsettled baby and responded by shaking it. There is evidencethat he was tired and under significant stress at the time, partly because of conflictbetween him and his wife, on the one hand, and her parents, on the other.[4] However it was inflicted, the injury was very severe. The baby began toconvulse. Mr Sok called his cousin (because his English is poor) and had her summonan ambulance. Medics found the baby floppy and unconscious. He ceased breathingfor a period and had seizures. Investigation, including a subsequent pathologist'sreport, confirmed a significant head injury. The baby suffered a subdural bleed.The left eye did not fix and follow normally, and both eyes exhibited multiplehaemorrhages. There was evidence of trauma in neck ligaments and upper thoracicvertebrae.[5] The baby continues to suffer serious after-effects, though the full impact of theinjury cannot be known until developmental milestones have been reached. It appearsseizures are under control with medication. The baby is receiving speech therapy,specialist treatment for the left eye, occupational therapy for play and fine motor skills,and physiotherapy for balancing. The need for this kind and degree of rehabilitativesupport speaks for itself.[6] Mr Sok exercised his right not to speak to the police. He was charged (on11 April 2018) with wounding with intent to cause grievous bodily harm. He pleadednot guilty. On 12 March 2020, not long before trial, he pleaded guilty to the lessercharge of injuring with reckless disregard. Ms Priest explained that he never acceptedthat he intended to harm the baby and she was not prepared to recommend a plea untilshe had obtained her own expert report.[7] We accept what counsel says. The point remains that Mr Sok cannot claim heaccepted responsibility at an early stage. He did not need an expert's report to tell himthe injury was non-accidental. On the contrary, he maintained initially that the babyhad choked on milk. (We record that there is no evidence the baby's prognosis wouldbe better had doctors been told at once what had happened.)[8] A reluctance to admit responsibility is regrettably still evident. In his affidavitin support of the discharge application Mr Sok admits hurting the baby but does notsay how it happened. He claims, incompatibly with his plea, that he did not know "it"would harm the baby. Further, a restorative justice report records Mr Sok telling themother of the baby on 9 November 2020 that the injury happened when he was playingwith the baby. He said that he "had been bouncing [the baby] on the baby bouncerwhich could possibly have been too hard for him". That cannot be true. The medicalinvestigations excluded the reasonable possibility of an accidental cause.[9] Against that, other considerations collectively reduce significantly the gravityof the offence. We have accepted that this was an isolated incident driven by stress.Mr Sok did plead guilty and did engage in restorative justice with the baby's mother.It is evident that this has resulted in a reconciliation. We accept that he experiencesremorse.[10] Mr Sok was able to point to otherwise good character. He has no previousconvictions and he tendered references describing him as a person of humble andcaring disposition who is very responsible and treats others well, including staff at thefamily café. He is well integrated into his community and has volunteered with theRSA and Lions Club and provided food to those in need. At the time of sentencing hehad completed more than 100 hours of community work. He could also point to acommitment to rehabilitation and low risk of reoffending. He undertook a parentingcourse on his own initiative.[11] We accept Ms Priest's submission that the sentence ultimately imposed(community detention and supervision) reflected these mitigating circumstances.There is much to be said for Mr Sok's character, this offence notwithstanding, and weaccept he is an asset to his community.[12] The Judge was nonetheless plainly right to characterise this as seriousoffending. As she recognised, s 9A of the Sentencing Act was engaged and several ofthe aggravating factors listed there were present: defencelessness, harm and breach oftrust. Of these, the serious harm done is the most significant factor in this case. We areprepared to accept that the offending was not concealed.4Consequences of conviction[13] Mr Sok points to several consequences he says he will suffer from conviction.They concern deportation from New Zealand, employment and travel. Of these, theimmigration consequences are by far the most important and we will examine themfirst.Immigration status then and now[14] When the Judge declined a discharge and entered the conviction on13 November 2020 Mr Sok's immigration status was as follows. He had enteredNew Zealand on a general visitor visa on 17 January 2017. In November 2017 he wasgranted a temporary entry class visa. Such a visa is issued for a fixed period for certainpurposes. In this case the visa allowed Mr Sok to remain and work while hisapplication for permanent immigration status was processed.[15] Mr Sok applied for another temporary entry class visa, this time on apartnership basis. That application was held in abeyance after he was charged. He hasnow been advised, by letter of 12 March 2021, that Immigration New Zealand (INZ)declined his application for a new visa. The reason given was that he does not meetgood character requirements.[16] Mr Sok was allowed to remain in New Zealand while his application for a newvisa was processed. It appears INZ simply extended his existing temporary visa fromtime to time. It was eventually extended until 1 December 2020, when it expired. Therecord does not explain why the visa was not further extended pending hearing of thisappeal.4 Sentencing Act, s 9A(2)(e).[17] His existing visa having expired and his application for a new visa havingfailed, Mr Sok is now unlawfully in New Zealand5 and under a statutory obligation toleave.6 He may be served with a deportation order.7Evidence of immigration consequences[18] The evidence in the record addresses the consequences of conviction forMr Sok's immigration status while he retained a temporary entry class visa. At thehearing we were given a copy of the letter of 12 March, which evidently came as asurprise to counsel. We asked counsel to clarify Mr Sok's precise status and identifythe immigration pathways that may now be followed. They filed a joint memorandum.Ms Priest also sought leave, which we grant, to adduce fresh evidence in the form ofan affidavit of Daniel Kruger, an experienced immigration lawyer who had also swornan affidavit in the District Court.The evidence in the District Court[19] Mr Kruger's opinion in his District Court affidavit (dated 30 July 2020) was tothe effect that there was a real risk a conviction would lead to Mr Sok's deportation.He explained that a temporary entry class visa holder is liable for deportation if INZdecides there is sufficient reason to deport them.8 Sufficient reasons include criminaloffending and other matters relating to character.9 Under the INZ Operational Manual(the Manual) a person convicted of an offence in New Zealand, for which a court mightimpose a term of three months' imprisonment or more, is generally considered to failthe character requirements. Such a person is usually ineligible for a visa unless INZgrants a character waiver. In Mr Kruger's experience, character waivers are seldomgranted even when applicants have family in New Zealand.[20] Mr Kruger explained that INZ may issue a deportation liability notice in suchcases. It may do so if the offence has been committed whether or not the person isconvicted, but he thought it unlikely that INZ would issue a deportation liability notice5 Immigration Act 2009, ss 9(1)(a) and 9(2)(b).6 Section 18.7 Section 175.8 Immigration Act, s 157(1).9 Section 157(5).to someone who had been discharged without conviction. On the contrary, heconsidered, INZ would likely not insist on a character waiver in this case and Mr Sokwould likely be granted a further visa.[21] A person served with a deportation liability notice is given an opportunity tooffer reasons why a deportation should not proceed, but in Mr Kruger's opinion INZwould likely conclude that Mr Sok should be deported having regard to the maximumsentence for the offence.The sentencing Judge's assessment[22] Judge Skellern accepted that Mr Sok faced a real and appreciable risk ofdeportation. She found that a result of the offending, but accepted Mr Kruger'sopinion that a conviction increased the risk. The Judge accepted that the issue of adeportation liability notice would obviously be a very significant consequence, but inthis case it was not out of all proportion to the gravity of the offence. She explainedthat:10[30] The issuing of a deportation liability notice is obviously a verysignificant consequence. However, I note that this family is fractured already.One of his children has now been living in Cambodia for three years. Thatchild is living with Mr Sok's parents. There are clearly close family tiesremaining in Cambodia. In terms of employment, there is no particularevidence to suggest that Mr Sok has any different career aspirations fromrunning the café with his wife as he is currently. I accept that stigma andshame are consequences for Mr Sok but certainly in New Zealand, given thesize of the Cambodian community, that is likely to be more as a result of theactual offending than a conviction. I accept there will be additional hurdlesfor Mr Sok with travel but they are not insurmountable and neither does heappear to have any concrete plans to travel.It will be seen that so far as consequences of deportation are concerned the Judge reliedon the fact that the family is already split, with some members living in Cambodia.We return to this point at [74] below.The new evidence in this Court[23] We refer here principally to the joint memorandum of counsel. We mentionMr Kruger's new affidavit, dated 7 April 2021, where it supplements what counsel10 DC Judgment, above n 1.have told us. We refer also to the Immigration Act 2009 (the Act) and the Manual, inwhich is found instructions authorised under sections 22–25 of the Act. By way ofexample, s 22(6) provides that rules or criteria relating to visa eligibility may include"matters relating to character". Instruction A5.1 of the Manual specifies thatapplicants for all visas "must be of good character". The Manual goes on to prescribethat character checks must be carried out on applicants for a temporary entry visa whoare over 17 years of age and intend to stay in New Zealand for 24 months or more, oron any other applicant for a temporary entry visa where INZ decides it is necessary.[24] The Act precludes a visa for persons convicted within the preceding 10 yearsof an offence for which they were sentenced to a term of imprisonment of 12 monthsor more.11 Applicants for a temporary entry class visa who have been convicted ofcertain other offences do not face an automatic prohibition. Rather, they are normallyineligible unless granted a character waiver. Instruction A5.45 provides that:A5.45 Applicants normally ineligible for a temporary entry classvisa unless granted a character waiverApplicants who will not normally be granted a temporary entry classvisa, unless granted a character waiver include any person who:(c) at the time of application:(i) has been charged with an offence, which onconviction, would make section 15 of theImmigration Act 2009 apply to that applicant; or(ii) is under investigation for such an offence; or(iii) is wanted for questioning about such an offence; or(d) has been convicted at any time of:(i) any offence for which they have been imprisoned; or(ii) an offence in New Zealand for which the court has thepower to impose imprisonment for a term of threemonths or more; or11 Immigration Act, s 15(1)(b). See also s 15(1)(a), which precludes a visa for persons sentenced toa term of imprisonment at any time for five years or more.It will be seen that Mr Sok would normally require a character waiver to obtain a visabecause the offence of which he was convicted carries a maximum term of more thanthree months' imprisonment.[25] The Act and Manual do not specify what must be considered when assessingcharacter in a given case. The Manual does state that applicants for a temporary entryclass visa must provide a police certificate "if required". It does not require that theydeclare offences that have not resulted in convictions. Nor does it preclude INZ takinginto account conduct that was disposed of otherwise than by conviction, includingconduct that resulted in a discharge.[26] The Manual provides in Instruction A5.45.1 that an immigration officer mustnot automatically decline an application for a character waiver. Rather, the officermust make and record a reasoned decision whether to waive the requirement or not.[27] In this case, the decision was recorded in the letter of 12 March and associatedcharacter waiver assessment template. Although described as a template, the latterdocument contained a reasoned merits assessment. It recorded that on 20 March 2019Mr Sok filed an application for a temporary work visa, declaring that he had beencharged with an offence. The police advised that they had recorded a family harmepisode in his family environment and he had been charged. Details of furtherenquiries made of the police and Mr Sok as the case progressed were noted, includingthe extent of the child's injuries, details of the summary of facts and the outcome ofthe restorative justice conference. Submissions made to INZ by Mr Sok's lawyer weresummarised. They included details of his family circumstances and his argument thatreturning to Cambodia would be disastrous for him, his wife and family.[28] The fact that Mr Sok had been found guilty was recorded, but the immigrationofficer's reasons went on to record that the offence was serious in nature as it involvedinjury against a defenceless person in circumstances where Mr Sok was in a positionof trust and left the child with ongoing health conditions. The officer accepted thatMr Sok has emotional and physical ties in New Zealand to his partner, his child andhis employment, although he also has ties to Cambodia where his daughter andimmediate family live. Mr Sok's remorse and rehabilitative steps were recorded.Against that: there are significant factors that [weigh] against granting a characterwaiver. The applicant has been convicted of an offence causing injury to a5 month old baby. I have considered the sentencing was at the lesser end ofthe scale, however the conviction is serious considering the age of the victim,and the position of trust the applicant was placed in. The applicant, whileshowing remorse has also shown an element of minimisation in regards to theoffending. The victim has ongoing health problems and requires specialistcare. While I have considered the applicant's ties to New Zealand, theapplicant also has immediate family in Cambodia. His daughter is currentlyliving in Cambodia, and while the applicant has stated that the daughter willreturn while the trial continues, she is currently still offshore. While sometime has passed since the conviction, the seriousness of the offence outweighsthe positive circumstances surrounding the application. I have considered thatan appeal is in process, however at the time of assessing the waiver, theconviction and sentencing stands, and I have made an assessment based on theinformation at hand. I have considered all of the relevant factors. I am notsatisfied that the surrounding circumstances of the application are compellingenough to justify waiving the character requirement.[29] The waiver was accordingly declined, and with it fell Mr Sok's application fora new temporary entry class visa. The letter of 12 March notified him accordingly,stating that his application had been declined because he did not meet the goodcharacter requirements and INZ had declined to waive them.[30] The letter advised Mr Sok that he might seek reconsideration of the decisionto decline his application for a visa provided he was still lawfully in New Zealand andmet certain other requirements. While that advice was strictly accurate so far as itwent, Mr Sok could not meet the requirement that he be lawfully in New Zealand atthe time he requested reconsideration. It is a statutory requirement found ins 185(2)(b) of the Act and it is inflexible. It follows that a discharge without convictioncould not now return Mr Sok to the position he was in before his application for a newvisa was declined.[31] The central premise of the application for discharge was that, absent theconviction, Mr Sok would not require a character waiver and so would likely begranted a work visa. This claim may have had some merit previously to the extentthat, notwithstanding what the legislation and Manual have to say about characterrequirements, INZ does not in practice require a character waiver where a person whohas committed an offence carrying a maximum term of more than three monthsimprisonment is subsequently discharged without conviction. It cannot avail Mr Soknow that his application for the visa to which the character waiver related has beendeclined and he is ineligible to seek reconsideration.[32] As a person liable to deportation under s 154 of the Act Mr Sok might haveappealed to the Tribunal on humanitarian grounds. In such an appeal the Tribunal mayseek information from any source and may take into account the facts of any criminalproceeding, however it was disposed of.12 If the appeal succeeds the Tribunal maygrant the appellant a resident visa or a temporary visa for a period not exceeding12 months.13 However, it appears to counsel that Mr Sok may now be too late to bringan appeal. A 42-day time limit began to run on the second day after his temporary visaexpired on 1 December 2020.14 This was avoidable. The temporary visa might havebeen extended or, if INZ declined to do so, a timely appeal might have been filed.The material before us does not explain why nothing was done. What matters now isthat a discharge could not reinstate the right of appeal.[33] There are other routes for reconsideration.15 If he were to leave New Zealand(provided he did so voluntarily, without being deported) Mr Sok might make a freshapplication from offshore for a temporary entry class visa on a partnership basis.He would be in the same position under the Manual in that he would have to disclosea conviction for this offence, but if granted a discharge he would not have to disclosethe offence and the requirement for a character waiver would not be triggered byInstruction A5.45(d). The general requirement for good character would remain,however, and INZ might take the offending into account as explained at [25] above.[34] Mr Sok may also apply to the Minister of Immigration for the grant of a visaunder s 61 of the Act, provided he is unlawfully in New Zealand but not yet subject to12 Immigration Act, s 228(1).13 Section 210(1).14 Section 154(2).15 Counsel did not discuss s 177, under which an immigration officer has a discretion to cancel adeportation order, as one of the avenues presently available to Mr Sok, presumably because he isnot yet subject to such order. Counsel did include judicial review as a possible pathway, but theydid not suggest it would offer Mr Sok better prospects of obtaining a visa and we do not discuss ithere.a deportation order. And Mr Sok may ask the Minister to cancel or suspendconditionally his liability to deportation under s 172. In both cases the decision is inthe Minister's discretion and we understand the decision may be delegated to anofficial.[35] The Associate Minister of Immigration may also give a Special Direction unders 378 of the Act, the effect of which is to require INZ to issue a visa. We are told thatin practice the Associate Minister would usually refuse to consider an applicationunless all other avenues, including s 61, have been exhausted, and it does not appearthat it is easier to obtain a Special Direction than it is to obtain a visa under s 61.[36] Mr Kruger acknowledges that it is generally a pre-requisite for a visaapplication that the applicant already holds a valid visa, meaning that Mr Sok mustrely on s 61 if he is to obtain a visa while still in New Zealand. In his opinionapplications under s 61 succeeded only in rare circumstances and those which are"clouded" by issues of character almost always fail. We return to this evidence at [56]below.[37] In Mr Kruger's opinion a discharge without conviction would significantlyincrease Mr Sok's prospects of obtaining a visa under s 61 (or a Special Directionunder s 378). That is so, he believes, because the underlying reason for Mr Sok'sunlawful immigration status is that he failed to meet the good character requirement,and that happened because Instruction A5.45 was "effectively" triggered by theconviction. If the conviction was set aside, Mr Sok could again meet the goodcharacter requirement. It is also his opinion that a discharge would significantlyincrease Mr Sok's prospects of successfully obtaining a visa from offshore. We returnto this evidence at [58] and [61]–[62] below.Submissions[38] Mr Sok says the Judge discounted the risk of deportation and ought to haveaccepted not merely that he is at risk of deportation but that it is in fact the likely endresult. Ms Priest referred us to several decisions, including one of this Court, in whicha discharge was granted for deportation risk.16 She submitted that the Judgeunderstated Mr Sok's ties to New Zealand and overstated those to Cambodia, pointingto his evidence that had it not been for the pandemic his daughter would have returnedto live permanently in this country.[39] For the Crown, Ms Fenton pointed to authorities to the effect that courts shouldnot anticipate the decisions of immigration authorities charged with considering all thecircumstances of the offender and their family, especially since the same considerationthat inform a discharge decision may or must be taken into account in deportationdecisions.17 Counsel argued that cases in which this Court or the High Court havebeen willing to grant a discharge for deportation risk are distinguishable.Immigration consequences and s 107 disproportionality[40] Section 107 of the Sentencing Act provides that a court must not discharge anoffender without conviction unless satisfied that the direct and indirect consequencesof conviction would be out of all proportion to the gravity of the offence. The generalapproach to this test is well settled.18 The leading authority remains R v Hughes, inwhich the Court held, among other things, that the language of disproportionality doesnot mean the jurisdiction is to be sparingly exercised.19Real and appreciable risk that a consequence will happen[41] There is no onus on the offender to establish that the disproportionality test hasbeen met; the Court must be "satisfied", meaning that it has made up its mind.20 Butthe offender must be prepared to identify consequences of conviction and point toevidence of a "real and appreciable risk" that the consequence will happen. That16 Jeon v Police [2014] NZHC 66; Chand v Police [2017] NZHC 2188; Kumar v Police [2015]NZHC 3293; Rahim v R [2018] NZCA 182; R v Tang [2019] NZHC 2056; and Sunda v Police[2019] NZHC 756. She also relied on George v Police [2014] NZHC 1725 at [46], where theCourt held that the risk of deportation could sometimes be taken into account.17 Waine v R [2017] NZCA 287 at [32]; Ho v R [2016] NZCA 229 at [15]; Ji v R [2015] NZCA 308at [14]; Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453,17 March 2011; Solicitor-General v Mohib [2016] NZHC 1908 at [49]–[50]; Chawla v Police[2017] NZHC 1368 at [42]–[44]; Isaj v Police [2018] NZHC 1689 at [28]; and Singh v Police[2020] NZHC 368 at [43].18 See n 3 above.19 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [23].20 R v Hughes, above n 19, at [49].standard recognises that the Court is gauging the likelihood of a future event,something that will happen following conviction.21 A court may require evidence ofmatters of which it is not prepared to take judicial notice. Where a consequence restson a matter of present fact, such as a requirement that a conviction be disclosed, proofof that fact may be required under s 24 of the Sentencing Act.22Causation[42] The legislation does not confer a general power of dispensation. Under s 107a court may not discharge an offender unless a given outcome is a consequence ofconviction. The consequence may be "direct or indirect". That language is traceableto Fisheries Inspector v Turner, in which Richardson J declined to draw a distinctionbetween direct and indirect consequences, reasoning that it would introduce anundesirable degree of uncertainty in the day-to-day application of the importantjurisdiction to discharge without conviction.23[43] The language of indirect causation signifies that the jurisdiction to dischargeextends to cases where the happening of a given consequence may require someintervening event or action, such as the decision of a third party in which theconviction is relevant: by way of example, decisions of a prospective employer or adisciplinary or qualifications authority or an immigration officer.[44] To state that causation may be indirect is to establish that the conviction needonly be one of several conditions necessary to make the consequence happen. It doesnot follow that the legislation admits any connection between conviction andconsequence, however weak or remote. Nor is a but-for connection necessarilysufficient, as this case and others demonstrate. Causation is a question of substance21 DC (CA47/2013) v R, above n 3, at [43]; and R v Taulapapa [2018] NZCA 414 at [22].22 Edwards v R [2015] NZCA 583 at [25].23 Fisheries Inspector v Turner [1978] 2 NZLR 233 (CA) at 241–242. The legislation at the timesimply provided that a discharge might be granted in a Magistrate's discretion after inquiring intothe circumstances of the case: see the Criminal Justice Act 1954, s 42(1). See too the judgmentof Somers J at 243. We observe that Turner is no longer good law to the extent that it held (at242) the jurisdiction should be sparingly exercised: see R v Hughes, above n 19.and degree, requiring judicial judgment.24 Like disproportionality, causation is anevaluative rather than a discretionary consideration.25[45] The Sentencing Act does not treat immigration consequences differently fromothers, but it is necessary to recognise that those consequences are found in, orauthorised by, immigration legislation. As this Court said in Ho, Parliament hasdecided a foreign national enjoys no general right to stay in New Zealand.26The legislation authorises the Minister to impose character requirements on thoseseeking visas to live in New Zealand, and it contemplates that the commission of aqualifying offence may lead to deportation. It establishes or authorises institutionsand processes to assess the circumstances and decide what is to be done in any givencase. Those processes are intended to accommodate New Zealand's internationalobligations.27 In this setting, close attention must sometimes be given to causation.[46] To begin with, as a matter of law liability to deportation sometimes turns onconviction and sometimes not, depending on the person's status. Conviction triggersliability where the holder of a residence class visa commits a qualifying offence.28The position is otherwise for a temporary entry class visa holder such as Mr Sok. As amatter of law, his liability depended not on conviction but on an INZ characterassessment. We accept that the conviction triggered the administrative requirementfor a character waiver in connection with Mr Sok's application for a partnership visa.However, the Manual required that INZ evaluate his character at that juncture in anyevent and the conviction is not conclusive evidence of bad character, nor would adischarge preclude denial of a visa on character grounds. It is presumably for thisreason that the immigration officer chose to determine the character waiver whileMr Sok's appeal to this Court was still pending.[47] It is usually the case that immigration processes must be commenced, andadverse decisions made by immigration authorities, before a person who hascommitted an offence is compelled to leave the country. A court may accept that24 Contact Energy Ltd v Jones [2009] 2 NZLR 830 (HC) at [133], citing Fleming SecuritiesCommission [1995] 2 NZLR 514 (CA) at 524.25 H (CA680/2011) v R [2012] NZCA 198 at [30], citing R v Hughes, above n 19.26 Ho v R, above n 17, at [15].27 Immigration Act, s 3(2)(d).28 Immigration Act, s 161.during a given process the person will be heard on mitigating and personalcircumstances and the outcome will be determined by those circumstances rather thanthe fact of conviction. The offending is a fact that has been admitted or proved andthe Court's view of its gravity will be a matter of record. In such cases courts usuallyfind the outcome a consequence of the offending behaviour rather than theconviction.29[48] This approach is sometimes justified for reasons of institutional competenceand comity, as Katz J remarked in Singh v Police.30 Immigration authorities possessexpertise and enjoy access to information — for example, concerning conditions in aprospective deportee's country of origin — that is generally not available to courts.Their processes allow them to scrutinise humanitarian circumstances that are said tojustify allowing a person to remain in New Zealand. By contrast, a court's knowledgeis usually based 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.31 But there arecases in which courts have accepted that authorities may decide the offender's statuson the conviction alone, ignoring the circumstances of an offence that is a minorexample of its kind. In such cases, as Lang J observed in Clarabel v Police, courtsmay be willing to base the decision to convict or discharge on the probability that theoffender will be deported.32[50] The cases sometimes caution against "usurping" or "pre-empting" immigrationpowers.33 It is strictly inaccurate to speak of a discharge usurping the authority of29 Zhang v Ministry of Economic Development, above n 17, at [24] and [14], citing R v Foox [2000]1 NZLR 641 (CA). See also Edwards v R, above n 22, at [21]; Rahim v R, above n 16, at [31];and Bong v R [2020] NZCA 94 at [32], all distinguishing the consequences of conviction from theconsequences of offending.30 Singh v Police, above n 17, at [37].31 Zhang v Ministry of Economic Development, above n 17, at [24] and [27].32 Clarabal v New Zealand Police [2020] NZHC 1518 at [17]. See also Zhang v Ministry ofEconomic Development, above n 17, at [14].33 See for example Ho v R, above n 17, at [15]; Foox v R, above n 29, at [39]; Edwards v R, aboven 22, at [27]; Zhang v Ministry of Economic Development, above n 17, at [14]; Liang v PoliceHC Wellington AP38/02, 16 April 2003 at [20]; and Steventon v Police HC Auckland A108/01,2 November 2001, at [22].officials or the Minister or the Tribunal; the Court is exercising its own jurisdictionunder s 106 of the Sentencing Act, and that is so even in cases where an offender isnot liable to deportation unless a conviction is entered. It is more accurate to say thatlegislative policy decisions and statutory powers and processes may not only establishconsequences for an offender but also determine whether those consequences are theproduct of a conviction and influence the proportionality assessment.[51] Courts may distinguish between liability to deportation and the risk that aperson will ultimately be deported, holding that they do not "usurp" immigrationpowers by granting a discharge where the offending is not serious and exposure todeportation liability would be a disproportionate consequence in itself.34 In such casesthe court need not make predictions about what immigration authorities will do.This Court's decision in Rahim v R appears to fall into this category.35 The casesinvolve offending that was not intrinsically serious, or which was not a seriousexample of its kind, and in which there were substantial personal mitigating features.[52] Finally, the causation question can sometime be brought into focus by askingwhether a discharge will eliminate or mitigate a risk of deportation. This is such acase, as we explain when dealing below with the unhappy circumstances in whichMr Sok finds himself.Expert evidence of immigration processes and practice[53] A practice has developed of offering evidence from lawyers specialising inimmigration. Such evidence is frequently helpful. It may identify an offender'simmigration status and associated rights and it may explain otherwise opaqueadministrative processes. It may identify considerations that a decisionmaker must ormay consider.34 George v Police, above n 16, at [46]; Jeon v Police, above n 16, at [21]; and Kumar v Police,above n 16, at [41]–[42].35 Rahim v R, above n 16, at [31]. The decision does not record the appellant's immigration statusor summarise the evidence about immigration decisions in his case, but we infer from [24], [25]and [31] that Mr Rahim had a residence visa and it was a liability to deportation case, though theCourt did not draw that distinction.[54] Mr Kruger's evidence goes further than that. It invites us to find that theMinister will decline Mr Sok's application under s 61 notwithstanding that theMinister will consider the mitigating circumstances of the offending and Mr Sok'sfamily circumstances and personal ties to New Zealand. Mr Kruger also predicted inhis District Court affidavit that the Tribunal would likely dismiss an appeal broughton humanitarian grounds.[55] Courts have admitted broadly similar evidence in some cases.36 It is relevant,and so potentially admissible, in the sense that it addresses what is said to be aconsequence of conviction.37 However, we do not find it substantially helpful,principally because our decision does not turn on an estimate of the likelihood thatMr Sok will be deported. We are also unwilling to rely on predictions about whatother decisionmakers, such as the Minister, may do. The caution expressed at [48]above is apposite. To the extent that it is relevant, the risk of deportation is sufficientlyestablished by the facts that Mr Sok is unlawfully in New Zealand and must rely onthe Minister's s 61 discretion. The risk is plainly real.[56] We elaborate briefly on our reluctance to predict what the Minister may do.Mr Kruger's evidence does not explain what analysis underlies his opinion that s 61applications that are clouded by character issues almost always fail. Coincidence isnot causation. Evidence that s 61 applications seldom succeed — a reasonableassumption given an applicant under s 61 has presumably already failed to secure avisa through normal processes — does not establish that Mr Sok's will fail forcharacter reasons, let alone because of his conviction.Assessment: immigration consequences in Mr Sok's caseFailure of character waiver[57] We accept Ms Fenton's submission that as a matter of law it was the offending,rather than the conviction, that exposed Mr Sok to the risk of deportation for causeunder s 157(5) of the Act.36 See Rahim v R, above n 16, at [30]–[31]; and Bong v R, above n 29, at [17].37 Maraj v Police [2016] NZCA 279 at [31]. Unusually, it was the offender in that case who arguedthat it was wrong to evaluate the risk that he would actually be deported.[58] We will assume that if granted a character waiver Mr Sok likely would haveobtained the new temporary visa that he sought. But the immigration officer did notbase the decision to decline a waiver on the maximum sentence associated with theoffence for which Mr Sok was convicted. Nor was the District Court decision treatedas conclusive evidence of bad character. The officer examined the merits, traversingthe circumstances of the offence in detail and including the mitigating circumstances.That being so, Mr Sok's failure to secure a character waiver was not a consequence ofhis conviction.[59] As noted earlier, it is in any event too late to obtain a character waiver.A discharge cannot turn back the clock. Mr Sok is liable to deportation and at risk ofbeing served with a deportation order.Application for a temporary visa from offshore[60] As we have explained above, Mr Sok may apply for a temporary visa fromoffshore. The evidence goes some way to explain how that application may be handledby INZ.[61] As noted at [20] above, Mr Kruger considered that INZ likely would not haverequired a character waiver had Mr Sok been granted a discharge without convictionin the District Court. He also thought it likely that INZ would grant Mr Sok a furthervisa. The evidence confirms both that applicants need not declare offences that havenot resulted in convictions and that applicants who have been convicted of a qualifyingoffence are normally not granted a temporary entry class visa unless they secure acharacter waiver. Were Mr Sok to apply from offshore after receiving a discharge, hewould not have to disclose the offence and would not require a character waiver. Thatmight suggest that a discharge without conviction would significantly assist Mr Sokin an application for a temporary entry class visa or, put another way, the need for acharacter waiver would present a significant barrier.3838 Bong v R, above n 29, at [32].[62] The difficulty with this argument is that it invites the Court to grant a dischargein order that Mr Sok need not disclose his offending to INZ when he makes an offshoreapplication. Courts usually refuse to grant discharges sought for that purpose.39 It isno answer to point to INZ processes under which a character waiver may not berequired for a person without convictions, for the good character requirement remainsand the offending is a relevant consideration. As noted at [25] and [33] above, theManual prescribes that character checks must be carried out and INZ may considerconduct that resulted in a discharge. In any event, the evidence does not persuade usthat if a discharge were granted INZ would overlook the offending when consideringan offshore application.[63] We will assume that the absence of a conviction could have a positive influenceon the mind of a decision-maker.40 We recognise too that in Bong v R, in which theoffender's immigration status also changed for the worse between charge and appeal,this Court accepted INZ would learn of the offending but found that a discharge mightnonetheless substantially improve his prospects of obtaining a visa. It seems the Courtaccepted Mr Bong's application for a temporary (visitor) visa had failed because ofthe conviction,41 which is not the position on the facts before us. It appears too thatthe Court may have accepted Mr Bong would likely no longer fail INZ's characterrequirements if discharged.42 We have accepted on the material before us that whileMr Sok would not be presumptively ineligible if discharged, the good characterrequirement must still be met. The overall gravity of his offending is greater thanMr Bong's and INZ has already assessed his character.[64] It follows that there is no reason to think a discharge would materially alterMr Sok's prospects of obtaining a visa from offshore. We are not prepared to acceptthat failure to obtain a new visa would be a consequence of conviction.39 Foox v R, above n 29, at [39]; Liang v Police, above n 33, at [20]; and Steventon v Police, aboven 33, at [22].40 Relying for this purpose, in Mr Sok's favour, on Bong v R, above n 29, at [25].41 At [27].42 At [29] and [32].Application to the Minister under s 61[65] Turning to the impact of a discharge on Mr Sok's application under s 61, wehave accepted that the Minister would consider the circumstances of the offending andthe humanitarian circumstances. We have assumed that the absence of a convictioncould have a positive influence on the mind of a decision-maker, but it cannot be saidthat a discharge would materially increase Mr Sok's prospects of obtaining a visaunder s 61. Put another way, were his application to fail it would not be in consequenceof the conviction.Employment and travel[66] We can deal with these grounds shortly because the appeal falls well short ofshowing that the District Court Judge was wrong in her assessment that they do notjustify a discharge without conviction.Employment[67] Ms Priest submitted that an offender need not point to specific employmentconsequences. Courts may take judicial notice of the attitude of prospectiveemployers and the likelihood that a conviction would permanently blight an offender'slife.43 In this case, Mr Sok already faces hurdles because he is a foreign national withpoor English. She suggested the conviction would also be a barrier to employment inCambodia.[68] We accept that a conviction of this kind carries a stigma. The offence is one ofserious violence. But as the Judge pointed out, there is no evidence to suggest thatMr Sok has any different career aspirations from running the café with his wife, as hedoes at present. We are not persuaded that adverse employment consequences are areal and substantial risk.43 R v Taulapapa, above n 21, at [42].Travel[69] Ms Priest could point only to general travel consequences, in that a convictionof this kind might prevent entry into other countries in the future. Mr Sok has familyoverseas and would like to travel, though he understandably has no immediate plansto do so. The evidence falls well short of identifying any consequence, in terms ofinability to travel or an obligation to navigate difficult immigration processes, that isa real and appreciable risk of conviction.44 The Judge was right to conclude that anytravel barriers there may be are "not insurmountable".45The balancing exercise[70] The grave and potentially lifelong harm done to a vulnerable victim is the mostsignificant feature of Mr Sok's offending. Against that, the offence was the result ofa momentary loss of control, and he has participated in restorative justice and engagedin rehabilitation. We have accepted that there is much to be said for his character.Nonetheless, the Judge was unquestionably right to find the offending serious.[71] This is not a case in which it can be said that liability to deportation and theassociated processes is a wholly disproportionate consequence of conviction.The question is whether the Court is satisfied that there is a real and substantial riskthat immigration processes will in fact end in Mr Sok's deportation as a direct orindirect consequence of conviction.[72] Mr Sok faces a real risk of deportation. It would have very seriousconsequences not only for him but also for his family, who must accompany him oraccept separation. However, we are not prepared to accept that these are consequencesof the conviction. They are consequences of the offending. A discharge would notnow prevent them or materially reduce the risk that they will happen.[73] Accordingly, Mr Sok has not been able to point to consequences for hisimmigration status that flow from conviction. Nor has he been able to point to a realand appreciable risk that conviction will have serious consequences for his44 Edwards v R, above n 22, at [25]–[26]; and R v Taulapapa above n 21, at [56].45 DC Judgment, above n 1, at [30].employment prospects and travel plans. It follows that we are not satisfied that theconsequences of conviction would be out of all proportion to the gravity of his offence.[74] Our reasons differ from those of the Judge, who discounted family separationbecause the family is already split. We have noted Mr Sok's evidence that but forcircumstances beyond his control his daughter would have returned to New Zealand.We prefer to leave assessment of the family's New Zealand nexus to immigrationauthorities, who will consider it when assessing Mr Sok's next application, whetherthat be made under s 61 or s 172, or from offshore.Disposition[75] The application to adduce fresh evidence on appeal is granted. The appeal isdismissed.Solicitors:Crown Law Office, Wellington for Respondent