SAMI v COMMISSIONER OF INLAND REVENUE [2022] NZHC 2436

SAMI v COMMISSIONER OF INLAND REVENUE [2022] NZHC 2436 [23 September 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2021-404-565[2022] NZHC 2436BETWEEN RAJESH SAMIAppellantAND COMMISSIONER OF INLANDREVENUERespondentHearing: 7 June 2022Appearances: S G Graham for AppellantS J Becroft and J G Fenton for RespondentJudgment: 23 September 2022JUDGMENT OF PAUL DAVISON JThis judgment was delivered by me on 23 September 2022 at 11:45amRegistrar/Deputy RegistrarSolicitors:Young Hunter, ChristchurchKayes Fletcher Walker, AucklandIntroduction[1] Rajesh Sami (the appellant) seeks an extension of time for filing an appealagainst his 17 convictions for tax evasion. He was sentenced on 25 September 2017to two years and 10 months' imprisonment for each offence, to be servedconcurrently.1 He also seeks leave to adduce further evidence, being an affidavitwhich he has sworn containing information that was not before the sentencing Judge.[2] He seeks to appeal his convictions on the grounds that a miscarriage of justiceoccurred. In the alternative, he applies for a discharge without conviction on the basisthat the consequences of the convictions are out of all proportion to the gravity of hisoffending.Background[3] The appellant is a Fijian citizen and was, until his deportation notice, a NewZealand resident. He has been living and working in New Zealand for approximately24 years. His wife and three children all live in New Zealand. He is also a grandfatherto two young children.[4] The appellant operated a construction business for over 10 years through twocompanies. He was at the relevant time a Licensed Building Practitioner which is arecognised qualification in the building industry.Facts of the offending[5] The following factual background is taken from the Police summary of facts.[6] The appellant's convictions arose following an Inland Revenue Department(IRD) investigation of his personal income tax affairs after checks revealed that hewas receiving large sums of cash as payment for work he had undertaken through hisconstruction business but had failed to file income tax returns for the tax years between2009 and 2015. The IRD investigation found that the appellant had used various1 Tax Administration Act 1994, s 143B(2): carrying a maximum penalty of five years' imprisonmentand/or a fine not exceeding $50,000.personal bank accounts, joint bank accounts with his partner, and his partner's personalbank accounts to bank business income.[7] The appellant's personal bank statements and joint account statements showed:cash deposits; transfers from one of his associated companies, RS Building ServicesLimited (RSB); and direct credits from clients. Between 2011 and 2015, the cashdeposits totalled $166,420.50, direct credits (deemed building-related income) totalled$457,780.40 and transfers from RSB (deemed shareholder salary) totalled$623,010.15.[8] Although the appellant's income subject to tax exceeded the thresholdrequirements for registration under the Goods and Services Tax Act 1985 he did notregister or file any GST returns.[9] The appellant's partner filed personal tax summaries for the 2012 to 2014 taxyears, but did not include income from the appellant and RSB. Her personal bankstatement analysis showed regular cash deposits. This income was generated from theconstruction business that the appellant operated. Both the appellant and his partnershared in the business profits, and together chose not to return any of the incomegenerated from the business activity, file GST returns and pay GST.[10] The appellant was requested by the IRD to supply information includingoutstanding income tax returns. Despite numerous undertakings and extensions oftime, no information or any tax returns were provided.[11] The appellant admitted that he and his partner had not kept adequate recordsof construction jobs he had completed, and that as a consequence it was not possibleto make accurate income tax and GST liability assessments. During the IRDinvestigation the appellant and his partner provided income information to aNominated Person to enable income tax returns for the financial years 2011 to 2015 tobe prepared and filed in October 2015. However these returns failed to include morethan half of their actual income. The appellant and his partner both knew that theseincome tax returns were false.[12] In July 2016, the IRD issued assessments for the 2010 to 2015 tax years unders 89C(eb) of the Tax Administration Act 1994. As no response was received withinthe four month response period, the assessments were deemed to have been acceptedby the appellant.[13] The IRD investigation also established that the appellant and his partner werefrequent visitors to Sky City Casino. Sky City records show that between 2010 and2015 the appellant had spent a net amount of $566,000 at the casino. In the sameperiod the appellant's partner had spent a net amount of $306,000. The appellant andhis partner had no other source of business income during this period, and the cashthey spent at the Sky City Casino was sourced from the construction business.[14] Five of the appellant's charges related to the evasion of income tax (one foreach year). The total tax loss being $433,571.15. Eight charges related to the evasionof GST (one for every six months), with a tax loss of $115,676,39. Four chargesrelated to the appellant's evasion of income tax on income paid into his partner'saccount (one for each year, excluding 2015), with a tax loss of $120,615.53.[15] The appellant pleaded guilty to the charges and was sentenced on 25 September2017 to two years and 10 months' imprisonment for each offence, to be servedconcurrently.Events following conviction[16] On 25 February 2019, the appellant was released on parole. His paroleconditions were to report monthly to his probation officer and not to gamble.[17] Immigration New Zealand (INZ) served the appellant with a deportationliability notice dated 30 January 2019, and on 28 February 2019 the appellant filed anappeal on humanitarian grounds against the deportation notice. On 17 September2019 the Immigration and Protection Tribunal delivered a decision declining theappeal.2 The appellant has subsequently been unsuccessful in his appeals against2 Sami v The Minister of Immigration [2019] NZIPT 600584.deportation and has exhausted all available immigration appeal options to remain inNew Zealand.[18] The appellant unsuccessfully appealed against his deportation notice to theImmigration and Protection Tribunal.[19] The application to extend time to appeal against the convictions is filed fouryears out of time.3 The court may extend the time allowed for filing a notice ofappeal.4 The principles relevant to an extension of time were set out by the Court ofAppeal in R v Knight and confirmed in R v Lee.5 The touchstone is the interests ofjustice.6 The court is required to balance a number of factors including:7 the wider interests of society in the finality of decisions, the strength of theproposed appeal, whether the liberty of the subject is involved, the practicalutility of any remedy sought, the extent of the impact on others affected andon the administration of justice, and any prejudice to the Crown.[20] The reasons for the delay and the merits of the proposed appeal are of particularsignificance, with the latter likely being determinative of the interests of justice andtherefore the application for leave.8[21] The appellant submits that leave to appeal should be granted because:(a) he first exhausted all available immigration appeal options, includingby seeking ministerial intervention which was declined on 12 October2021;(b) following the Minister's decision, he has acted in a timely manner inpromptly filing the application to extend time to appeal;(c) there was a miscarriage of justice due to the appellant not receivingadequate legal advice regarding the possible consequences that3 Criminal Procedure Act 2011, s 231(2) requires a notice of appeal against conviction to be filedwithin 20 working days after the date of sentence for the conviction appealed against.4 Section 231(3).5 R v Knight [1998] 1 NZLR 583 (CA) at 587; and R v Lee [2006] 3 NZLR 42 (CA) at [95]–[99].6 R v Knight, above n 5, at 587.7 R v Lee, above n 5, at [99].8 Smith v R [2020] NZCA 221 at [3]–[4].convictions would have on his immigration status, and because of histrial counsel's failure to advise the sentencing Judge of these possibleconsequences of convictions;(d) special circumstances being the consequences of his convictions havinghad a disproportionately severe impact upon his ability to remain inNew Zealand;(e) there is no prejudice to the respondent if an extension of time to appealis granted; and(f) there is real risk of a miscarriage of justice if an extension of time toappeal is refused.[22] The respondent says that the appellant's delay in filing his notice of appeal hasmeant that counsel advising and representing the appellant in relation to the chargesand at his sentencing has been required to revisit advice she gave to him approximatelyfive years ago. The respondent says that it has been caused significant prejudice as aresult. It says that the merits of the appeal are not strong, and the application for anextension of time should accordingly be declined.[23] While the time spent by the appellant pursuing his appeal against hisdeportation notice largely explains his delay in filing an appeal, consideration ofwhether the interests of justice require the granting of an extension of time to bring anappeal will largely depend upon the merits of the proposed appeal.Leave to adduce further evidence[24] As I have noted, the appellant also seeks leave to adduce his affidavit as freshevidence on the appeal.[25] The Court can receive new evidence in an appeal if it thinks it necessary orexpedient in the interests of justice.9 Generally, new evidence will need to be credibleand fresh.10 The overriding criterion is the interests of justice.11[26] The respondent does not oppose the admission of the appellant's affidavit asfresh evidence, and has also filed an affidavit by the appellant's trial counsel,Ms Karena in which she comments on and replies to the appellant's affidavit. In hisaffidavit the appellant has set out his immigration history, the legal advice he hadreceived after he was charged, and his possible deportation. This information isdirectly relevant to the present appeal and I am satisfied that it is in the interests ofjustice to admit it, and I accordingly grant the appellant leave to adduce the freshevidence contained in the affidavit, and also grant the respondent leave to adduce theevidence contained in Ms Karena's affidavit.[27] At the hearing of the appeal both the appellant and Ms Karena gave evidenceconfirming the contents of their affidavits and were cross-examined.The appeal against convictionLegal principles[28] The Criminal Procedure Act 2011 (CPA) provides for the right of appealagainst conviction.12 This Court has jurisdiction to hear an appeal against a convictionin the District Court where the convicted person pleaded guilty to the offence beforethe trial.13 The appellate court must allow the appeal if it is satisfied that a miscarriageof justice has occurred for any reason.14 The CPA defines miscarriage of justice asfollows:15 any error, irregularity, or occurrence in or in relation to or affecting the trialthat —(a) has created a real risk that the outcome of the trial was affected; or9 Criminal Procedure Act, s 335(2)(c).10 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120]; and R v Bain [2004] 1 NZLR 638 (CA)at [22].11 Lundy v R, above n 10, at [119]–[120]; and R v Bain, above n 10, at [22].12 Section 229(1).13 Section 247(1)(c)(ii).14 Section 232(2)(c).15 Section 232(4).(b) has resulted in an unfair trial or a trial that was a nullity.Counsel error as ground of appeal[29] In R v Sungsuwan, the Supreme Court set out a two-step approach to appealswhere trial counsel error is relied on as a ground of appeal. The Court observed:16[65] Where error or irregularity is alleged and attributed to counsel, butthat would not have affected the outcome – was not material – there will beno need to analyse and judge the conduct of counsel. On the other hand, wherethe complaint is that counsel's conduct was such as effectively to deny theaccused representation to fairly present the defence, prejudice to the outcomewill be readily found – and in extreme cases may need no inquiry.[70] In summary, while the ultimate question is whether justice hasmiscarried, consideration of whether there was in fact an error or irregularityon the part of counsel, and whether there is a real risk it affected the outcome,generally will be an appropriate approach. If the matter could not have affectedthe outcome any further scrutiny of counsel's conduct will be unnecessary.But whatever approach is taken, it must remain open for an appellate court toensure justice where there is real concern for the safety of a verdict as a resultof the conduct of counsel even though, in the circumstances at the time, thatconduct may have met the objectively reasonable standard of competence.[30] A "real risk" that the outcome was affected exists when "there is a reasonablepossibility that a not guilty (or a more favourable) verdict might have been deliveredif nothing had gone wrong".17 The standard is "whether there is a reasonablepossibility that a different verdict would have been delivered" in the absence of theerror, irregularity or occurrence.18[31] In some limited circumstances, a finding of trial counsel error will be sufficientto evidence a real risk of miscarriage, without anything further being required. TheCourt of Appeal in Hall v R said:19[65] We agree with the Crown submission that it is helpful to identify thethree fundamental decisions on which trial counsel's failure to follow specificinstructions will generally give rise to a miscarriage. The fundamental16 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730. See also R v Scurrah CA159/06, 12September 2006, at [17].17 R v Sungsuwan, above n 16, at [110].18 Misa v R [2019] NZSC 134, [2020] 1 NZLR 85 at [46] (emphasis removed).19 Hall v R [2015] NZCA 403, [2018] 2 NZLR 26.decisions are those relating to plea, electing whether to give evidence and toadvance a defence based on the accused person's version of events.[32] The defendant must make properly informed decisions in relation to thesefundamental decisions, and trial counsel must inform and advise the defendant beforereceiving their instructions on those matters.[33] In R v Le Page the Court of Appeal provided a broad category of threesituations where an appeal against conviction following a guilty plea may beallowed:20(a) the appellant did not appreciate the nature of the charge;(b) on the facts, the appellant could not have been guilty of the offencecharged; or(c) the guilty plea was induced by a ruling which embodied a wrongdecision on a question of law.[34] The Court in Le Page also said that an appellant must in effect show that amiscarriage of justice will result if the conviction is not overturned.21Appellant's submissions[35] Here the appellant appeals against conviction on the basis that his trialcounsel's error resulted in a real risk that a miscarriage of justice occurred at trial. Inparticular, he says that his trial counsel erred in two respects:(a) counsel ought to have provided him with legal advice regarding theimpact or possible impact that a conviction would have on hisimmigration status; and(b) the impact on the appellant's immigration status was a matter thatcounsel should have brought to the attention of the sentencing Judge.20 R v Le Page [2005] 2 NZLR 845 (CA) at [17]–[19].21 At [16].[36] Mr Graham for the appellant submits that the appellant is not required toestablish that his trial counsel conduct was negligent. He says that all the appellant isrequired to show is that his trial counsel failed to advise him of the possible effect ofconvictions on his immigration status, and had also failed to inform the sentencingJudge of that possibility, even if the omission to do so may have satisfied the"objectively reasonable standard of competence".22 Mr Graham submits that the Courtwould be justified in allowing the appeal on the grounds of counsel conduct, and herefers to case law on incorrect advice as to the non-availability of certain defences,23inadequate advice about an essential element of the charge,24 incorrect advice as tosentence,25 and judicial intervention on pleading guilty.26[37] In his affidavit dated 21 December 2021 the appellant says of the legal advicehe received from his trial counsel:27. My lawyer at the time was Ms Renee Karena.28. Ms Karena was a Court appointed legal aid lawyer. I recall meetingwith her briefly to discuss my case. This was a very short meetingwhich I estimate was in the region of 10 minutes. During that meetingI recall answering certain questions about the charges. I also told herthat I was from Fiji and a New Zealand resident. She did not sayanything to me about my residence status nor did she mention that aconviction of this nature could raise immigration problems for me inthe future. I recall her telling me that I should enter guilty pleas to thecharges at my earliest opportunity.29. Based on Ms Karena's advice, I instructed her to enter guilty pleasand we were given a new date to return back to the Court forsentencing on 25 September 2017.30. I do not recall having any further meetings with Ms Karena. I recallwe may have had one or two telephone calls. I recall providing herwith details about my family and again explaining that I was a NewZealand resident.31. I met with Karena approximately 10 minutes before my sentencinghearing. She asked me some further questions and I provided answersas best as I could. I told her that I was concerned about the sentencewhich the Court may impose. She said that it was likely that I wouldreceive a sentence of home detention.22 R v Sungsuwan, above n 16, at [70].23 R v Merrilees [2009] NZCA 59.24 Watts v R [2011] NZCA 41.25 Su'a v R [2017] NZCA 439.26 Gleason-Beard v R [2018] NZCA 349, [2018] 3 NZLR 699.32. When the Court sentenced me to 2 years and 10 months imprisonment,I was shocked. I had not prepared myself for prison.33. Had I known that the convictions would also cause problems for myimmigration [status], I would have sought advice from Ms Karena,and I would have told her to tell the judge about this fact.34. I did not have any further communications with Ms Karena after mysentence.[38] In his evidence at the hearing of the appeal, the appellant said he recallsmeeting Ms Karena twice and having three or four phone calls with her. He said thatwhile the phone calls were "not very long" some were of up to 30 minutes duration.He repeated that when he met with Ms Karena although he told her that he was a NewZealand resident, there was no further discussion regarding the matter.[39] However, when cross-examined the appellant confirmed that he had acceptedthe IRD summary of facts and had pleaded guilty. He explained:[Counsel] told me to plead guilty she doesn't want me to fight the case.She said: "You can't win this case. You have to plead guilty so your sentencewill be reduced." That's what I was told [40] The appellant was also referred to a handwritten memorandum of instructionswritten by Ms Karena which he read and signed on 21 July 2017 which includes thefollowing:I have had extensive communication with my lawyer about these charges andthe resolution reached is a withdrawal of one charge to the value of$78,734.17. This leaves a total of $669,863.07.[41] The appellant also accepted that he had read over and signed a writteninstruction to his counsel on the day of his sentencing, 25 September 2017, stating:I, Rajesh SAMI have pleaded guilty to 17 charges of IRD fraud. Value$669,863. My lawyer has explained today's aim is to get a sentence of homedetention. I understand IRD seek imprisonment. Where possible, I seek homedetention. I understand the amount involved is serious and too serious forcommunity work.I am supported by my employer, Mr [P].[42] The appellant also acknowledged under cross-examination that he had notraised any other matters regarding his instructions with his counsel.[43] Mr Graham submits that the appellant's case is unique in terms of hisimmigration status, as the real and appreciable risk of liability for deportation arisesdue to the convictions he received, and because the convictions are the sole cause ofhis deportation. He notes that the maximum penalty of the offences for which theappellant was convicted was five years' imprisonment and/or a fine of $50,000, andsays that the appellant's case can be distinguished from other cases such as Sok v R27and Zhu v R28 which involved significantly more serious offending and the chargesinvolved carried penalties in excess of five years' imprisonment.[44] Mr Graham notes that the appellant has been living in New Zealand forapproximately 24 years and has effectively spent his adult life living here. He saysthat the appellant has established deep roots in his community. His ex-wife is relianton the appellant for her day-to-day support, and his children and grandchildren areNew Zealand citizens. Deportation would mean that the appellant's immediate andextended family unit would be broken up. He submits that if the Court considers thatthe consequences of convictions for the appellant's offending are out of all proportionto the gravity of the offending, then it is open to the Court to discharge the appellantwithout conviction pursuant to s 106 of the Sentencing Act 2002.Respondent's submissions[45] Ms Fenton for the respondent submits there was no trial counsel error, and thateven if the alleged error is established, it would not have affected the outcome.[46] Ms Fenton notes that in Ms Karena's affidavit sworn on 20 April 2022, shestrongly refutes the appellant's allegations on three points:(a) brevity of meetings pre-trial;(b) failure to inform him of the seriousness of the charges and likelypenalty; and27 Sok v R [2021] NZCA 252.28 Zhu v R [2021] NZCA 254.(c) failure to act upon the information counsel was given by the appellantregarding his immigration status.[47] Ms Fenton notes that Ms Karena disputes the appellant's allegation that shehad brief meetings of "10 minutes" with him, and exhibits a file note she made inwhich she recorded that she had a 30 minute conversation with the appellant on 13 July2017. In her file note Ms Karena also records that the appellant had made admissionsof tax evasion when interviewed by IRD investigators and that he did not have anydefence available to him. Ms Karena says that she was well aware that these wereserious charges, and she gave the appellant repeated advice that imprisonment was areal prospect.[48] Ms Fenton also notes that Ms Karena does not accept the appellant specificallytold her that he was a Fijian citizen and had resident status in New Zealand. However,she acknowledges that the 2017 IRD summary of facts states that he is "a New Zealandresident". Ms Karena also acknowledges that she may have overlooked the referenceto the appellant as being a New Zealand resident, and she says that she did not makeany enquiries around his residency or visa status. She says that in the course of herdiscussions with the appellant prior to him entering his plea and prior to his sentencing,he made no mention of his residency status. She says that in her experience mostcriminal lawyers practicing in the District Court do not advise defendants regardingvisa or deportation issues that may arise as a consequence of criminal charges andconvictions of their clients, and they will generally refer defendants to specialistlawyers for immigration advice when those issues arise.[49] In her evidence Ms Karena confirmed that she had advised the appellant thathe clearly had no defence to the charges, and that in her view the Court would not havegranted a discharge without conviction in these circumstances. She also notes thatprior to his sentencing on 25 September 2017 she obtained his written instructionsconfirming that he had been advised that the IRD was seeking a sentence ofimprisonment and that his aim was to be sentenced to home detention if possible.[50] Ms Fenton submits the evidence set out in Ms Karena's affidavit shows thatthere was no trial counsel error. She submits that Ms Karena gave the appellant carefuland thorough advice in circumstances where he had no defence to the charges, and thegravity of those charges made an application for a discharge without convictionunrealistic. Moreover, as the appellant did not mention his residency status toMs Karena, she was not made aware of the risk to the appellant's immigration statusif he was convicted. There was therefore no "omission", as alleged by the appellant,and because Ms Karena was not given any information by the appellant regarding hisresidency status in New Zealand, she did not consider or advise him regarding theconsequences of convictions on his residency status.[51] The respondent accordingly submits there was no trial counsel error in this casegiving rise to a miscarriage of justice, and the appeal should be dismissed.Analysis[52] While failures or omissions by trial counsel to properly inform the defendantregarding the charges before receiving instructions regarding the entering of a guiltyplea,29 or errors or irregularities attributed to counsel resulting in a real risk of theoutcome being affected will be sufficient to establish the real risk of a miscarriage,that is not the situation in this case.[53] The trial counsel errors alleged by the appellant do not fall within the scope ofthe three broad categories described in Le Page. Here the appellant clearly understoodthe nature of the charges and this is not a case where he could not possibly have beenguilty of the offences charged. He very clearly had no defence. Moreover, this is nota case where the appellant's guilty pleas were influenced by incorrect legal advice.Although the categories in Le Page are not an exhaustive list, they neverthelessindicate the type of circumstances in which trial counsel's errors or omissions inrelation to the provision of advice to a defendant regarding their decision to pleadguilty could give rise to a real risk that a miscarriage of justice has occurred. Herethere is no suggestion that he pleaded guilty when he was in fact innocent. Thereforethis is not a situation in which a miscarriage of justice will occur unless the convictionis overturned.29 Hall v R, above n 19, at [65].[54] Turning then to the two-step approach for assessment of trial counsel error, asset out in Sungsuwan.Was there in fact an error?[55] I accept Ms Karena's evidence that the appellant did not mention the issue ofhis residency status in the course of providing her with his instructions. It is quiteclear that the appellant had no defence to the charges and that being the caseMs Karena's advice to him to plead guilty in order to secure a sentencing discount wasboth appropriate and correct. In fact Ms Karena effectively negotiated the withdrawalof one of the tax evasion charges originally laid resulting in a reduction of thereparation schedule of $78,716 and an amendment to the prosecution summary offacts. By advising Mr Sami to plead guilty at the earliest possible stage (followingnegotiations to withdraw one of the charges) she was able to argue for the maximumguilty plea discount at sentencing, which he received.[56] Having regard to the serious nature of the appellant's offending over anextended period of approximately six years involving significant tax evasion of largesums of money, even if the possibility of deportation had been raised at the sentencingthere was never any realistic possibility that the Court could be persuaded to dischargethe appellant without conviction.[57] Furthermore, this case is quite unlike Chand v New Zealand Police, in whichtrial counsel was aware of the defendant's immigration status and the risk ofdeportation attached to conviction.30 Ms Karena was not aware of Mr Sami'sresidency status and the topic was not discussed during their pre-trial meetings.[58] It appears from Ms Karena's evidence that she was not given any informationby the appellant regarding his immigration status or asked to advise him about theconsequences of convictions on his immigration status, and certainly she was givenno instructions to convey this information to the sentencing Judge.30 Chand v New Zealand Police [2017] NZHC 2188.[59] I reject the appellant's evidence that he had one 10 minute meeting withMs Karena, prior to her instructing him to enter a guilty plea. I accept Ms Karena'sevidence supported by her contemporaneous file note dated 13 July 2017 that she hada number of attendances with the appellant prior to his entering guilty pleas includingone which lasted for half an hour during which the issue of whether he had a defenceto the charges was properly and realistically considered, and in which he accepted thathe did not have any defence available to him. The file note records that Ms Karenaadvised the appellant that an end sentence of imprisonment was a very real prospectand that he was realistic about that prospect.[60] I also accept Ms Karena's evidence that if the appellant had raised concernsabout the impact of his convictions on his residency status, she would have referredhim to an immigration lawyer, rather than advise him herself.[61] For these reasons, I find that Ms Karena did not err when she advised theappellant regarding his guilty pleas prior to his decision to plead guilty. He wasproperly informed as to the seriousness of the charges he faced, and the possibility ofimprisonment. He pleaded guilty in order to obtain the benefit of a full discount atsentencing.If so, is there a real risk that the error affected the outcome of the trial?[62] The respondent submits that even if Ms Karena could be said to have erred infailing to discuss the possibility of a discharge without conviction with the appellantand not raising it with the sentencing Judge, that error would not have had any effecton the outcome in this case. Although I have found that Ms Karena made no error, Inow turn to consider whether this is nevertheless a case such as described by theSupreme Court in Sungsuwan in which although the conduct of counsel wasreasonable it can nevertheless be shown to have given rise to an irregularity in the trialthat prejudiced the appellant's chance of an acquittal such that a miscarriage of justicehas occurred.3131 R v Sungsuwan, above n 16, at [67].[63] Having regard to the circumstances and seriousness of the appellant'soffending is it quite clear that had the appellant applied for a discharge withoutconviction it would not have been granted. Where a conviction may haveconsequences for the offender's immigration status in New Zealand, the courts haveoften observed that it is appropriate for the issue to be resolved by the immigrationservice rather than by the courts.32[64] In Ji v R the Court of Appeal noted:33 it is well-established that the courts should not usurp the function of theimmigration authorities in deciding whether a person should be deported ornot.[65] In Sok v R, the Court heard an appeal against a decision declining an applicationfor discharge without conviction under s 106 of the Sentencing Act, on a charge ofinjuring a five-month-old baby with reckless disregard for the baby's safety.34Although the Court of Appeal accepted that the appellant faced a real risk ofdeportation which would have very serious consequences not only for him but also forhis family, it was not prepared to accept that these were consequences of theconviction. Rather, the Court held that these were consequences of the offending.35[66] Similarly, in Zhu v R, the Court of Appeal said:36[28] We accept that once liable to deportation Mr Zhu is at risk of beingserved with a deportation liability notice, which in turn may lead todeportation. However, we do not accept that these are consequences ofconviction. They are consequences of the offending, which will be consideredby immigration decision-makers along with his personal and familycircumstances.[29] For these reasons Mr Zhu cannot point to consequences of convictionthat would be out of all proportion to the gravity of his offending.[67] As the holder of a residence class visa the appellant's convictions for offencesrendered him liable for deportation pursuant to s 161(1)(b) of the Immigration Act32 Chai v R [2019] NZCA 628 at [60]–[61]; George v New Zealand Police [2014] NZHC 1725 at[46]; and Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March2011 at [14]. See also Jeon v New Zealand Police [2014] NZHC 66 at [20].33 Ji v R [2015] NZCA 308 at [49].34 Sok v R, above n 27.35 At [72].36 Zhu v R, above n 28.2009. The convictions caused the issue of a deportation liability notice which wasserved on him on 30 January 2019, and his appeal against deportation wassubsequently heard and determined by the Immigration and Protection Tribunal.Having regard to the seriousness of the appellant's offending, I do not consider thatthe appellant has shown that the failure of his trial counsel to apply for a dischargewithout conviction on the grounds that the consequences of convictions and theireffect on his resident visa status would be out of all proportion to the gravity of hisoffending, resulted in a miscarriage of justice. He has also failed to show that anapplication for discharge without conviction would have ever had any realisticprospect of success, or that his proposed appeal would have any realistic prospect ofsuccess.[68] The appellant has already exhausted his right to appeal against the deportationdecision, through the Immigration and Protection Tribunal. He has also claimedrefugee status. His efforts in this regard have been unsuccessful. The Immigrationand Protection Tribunal is a specialist body with expertise in this type ofdecision-making. They have carefully considered Mr Sami's personal and familycircumstances and weighed these considerations against the seriousness of hisoffending.[69] In my view, this is not a case where the Court should have usurped the functionof the immigration authorities. Accordingly, even if Ms Karena could be said to haveerred in failing to discuss the possibility of a discharge without conviction with theappellant and by not raising it with the sentencing Judge, that error would not havehad any effect on the outcome in this case. An application for a discharge withoutconviction would inevitably have been declined by the sentencing Judge. There hasbeen no miscarriage of justice in the circumstances of this case.[70] I also note for completeness that it would not generally be appropriate for thisCourt to grant an application for a discharge without conviction on appeal when nosuch application was made in the District Court.3737 See Ho v R [2016] NZCA 229 at [11]; Winterburn v R [2019] NZHC 104 at [9]–[11]; andBarrington-Nash v New Zealand Police [2012] NZHC 868 at [7].[71] I accordingly find that the proposed appeal against conviction is without merit,and there is no basis for granting an application for a discharge without conviction onappeal, where no such application was before the District Court. I therefore find thatit is not in the interests of justice to grant the appellant's application for an extensionof time to file his notice of appeal.Result[72] The application for an extension of time is declined._____________Paul Davison J