MANI v NEW ZEALAND POLICE [2019] NZHC 3440

MANI v NEW ZEALAND POLICE [2019] NZHC 3440 [19 December 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-000395[2019] NZHC 3440BETWEEN RITESH MANIAppellantAND NEW ZEALAND POLICERespondentHearing: 17 December 2019Appearances: J Harder for AppellantM Beattie for RespondentJudgment: 19 December 2019JUDGMENT OF WYLIE JThis judgment was delivered by Justice WylieOn 19 December 2019 at 12.30 pmRegistrar/Deputy RegistrarDate:Solicitors/counsel:J Harder, AucklandCrown Solicitors, ManukauIntroduction[1] On 20 July 2018, the appellant, Mr Mani, pleaded guilty to four charges ofbreaching a protection order in favour of his former wife. He applied to be dischargedwithout conviction and the application came before Judge Harvey in the District Courtat Manukau on 18 July 2019. The Judge declined the application.1[2] Mr Mani now appeals Judge Harvey's decision. He argues that the Judge erredby:(a) overstating the gravity of the offending, in particular bymischaracterising the circumstances surrounding the breaches;(b) not considering Mr Mani's custodial remand, compliance with bail,early guilty pleas and completion of anger management counselling;and(c) not concluding that the direct and indirect consequences of theconvictions would be out of all proportion to the gravity of theoffending.It was argued that Mr Mani should be discharged without conviction.[3] The police oppose the appeal, arguing that the Judge did not err, and that theappeal should be dismissed.Background[4] Mr Mani was born in Fiji and he is a citizen of that country. He came to thiscountry in 2008 after he obtained a temporary work visa as a heavy machine operator.He has obtained successive work visas. His most recent work visa expired in August2019.1 Police v Mani [2019] NZDC 14064.[5] Mr Mani and the victim married in Fiji in 2010. They then came to NewZealand to live together. The marriage lasted for approximately seven years and theyhad one child together. They separated in August 2017.[6] Mr Mani accepts that he and the victim had some disagreements during thecourse of the marriage, and that, on one occasion in 2011, he assaulted her. He wascharged with common assault, convicted and required to come up for sentence if calledupon over the ensuing six-month period commencing 28 October 2011.[7] This conviction was in breach of Mr Mani's then temporary work visa.Initially, a deportation liability notice was served on him but it was subsequentlycancelled, because he had declared this conviction (and another for drink driving) priorto the then current work visa being issued.[8] Mr Mani and the victim reconciled and they bought a house together in 2015.[9] In 2017, the relationship began to deteriorate. Mr Mani says that he becamefrustrated on occasion and that he and the victim had a number of heated arguments.Matters came to a head when Mr Mani revoked the support he had been giving to thevictim to enable her to obtain a visa to remain in New Zealand. The couple had anumber of further arguments thereafter and, according to Mr Mani, the complainantwent on to allege that he had been threatening towards her. Mr Mani says that he didhis best to keep things amicable, because the victim was due to have the couple's child,and because they owned a house together. Mr Mani says that he did not want to giveup on the relationship.[10] Unfortunately, the couple were unable to resolve their issues and the victimapplied for a protection order against Mr Mani, approximately a month before thecouple's child was born.[11] On 3 August 2017, the Manukau District Court issued a temporary protectionorder against Mr Mani. The protection order was issued as a final order on 4November 2017, again by the Manukau District Court.[12] Mr Mani breached the protection order on 23 October 2017, 29 October 2017and 1 November 2017.(a) On the first occasion, Mr Mani phoned the victim on her mobile phone.When she heard Mr Mani's voice, she hung up on him.(b) On the second occasion, Mr Mani again phoned the victim on hermobile phone and she again hung up.(c) On the third occasion, Mr Mani phoned the victim, stating that hewanted her to come back to him, and asking if she was going to sell thehouse. The victim told Mr Mani that she would not be returning to himand told him to stop calling her. Mr Mani persisted and the victimended the call.All of the calls were at night, broadly, between 10.00 and 11.00 pm.[13] When he was spoken to by the police, Mr Mani denied making any of the callsto the victim. He subsequently entered a not guilty plea to the resulting charges andelected trial by jury.[14] In a victim impact statement prepared at the time, the victim asserted thatMr Mani's behaviour was "very scary" and that he is "a dangerous man".[15] Mr Mani appeared in relation to these breaches on 13 November 2017.Initially, he was remanded in custody before being released on bail by Judge Hikakaon 21 December 2017.2 The Judge noted that there was a concern for the victim'ssafety and that she had been communicating with the police. She was noted as beingconcerned at the prospect of Mr Mani being granted bail, but derived some comfortbecause the bail address was some distance from her residence. The Judge imposed acondition that Mr Mani was not to go to the area where the victim resided or associatewith her. He reinforced to Mr Mani the need to comply strictly with the terms of hisbail.2 Police v Mani [2017] NZDC 29297.[16] Mr Mani was next before the Court on 15 February 2018. Mr Mani had appliedto vary his bail. He wanted to be bailed to an address close to the home which he andthe victim own together, and where she was living. It was argued on his behalf thatthe victim had made a number of exaggerated complaints against him over a lengthyperiod of time, both to Immigration New Zealand and to the police. Judge Hikakanoted that the victim had been contacted about the proposed variation, and she thathad reiterated her "serious concerns about [Mr Mani] moving back into the area,and the very short distance between the proposed bail and [her] address".3 The Judgedeclined to vary the bail address.[17] The fourth breach of the protection order occurred on 30 March 2018 whileMr Mani was on bail. According to the summary of facts,4 the victim arrived homeat about 9.00 pm. Mr Mani had arrived at and gone into the house earlier. While thevictim was on the phone to her sister, Mr Mani came out from one of the bedrooms.The victim told him numerous times to leave the house, but he ignored her. A verbalargument ensued. Mr Mani eventually left the address about an hour later. The victimpromptly contacted the police. When he was spoken to, Mr Mani said that he hadnever been at the victim's house, and that he had been at his own address at the time.[18] This offending was not only in breach of the protection order but also in breachof the conditions attaching to Mr Mani's bail.[19] In a victim impact statement prepared at the time, the victim accepted that shedid not receive any physical injuries. She nevertheless said that she was afraid andthat she had concerns for her own safety and that of her son.[20] Mr Mani appeared in relation to the fourth breach on 2 April 2018. He wasinitially remanded in custody for a short time, but was subsequently released on bail.3 Police v Mani [2018] NZDC 2777 at [5].4 Mr Mani offers a different version of events in an affidavit he swore in support of his applicationfor discharge without conviction on 1 June 2019. I do not attach any weight to this latest versionof events. It is self-serving and exculpatory. It is inconsistent with the summary of facts to whichMr Mani pleaded guilty.[21] On 20 July 2018, Mr Mani changed his pleas, and entered guilty pleas to eachof the four charges. There were originally six charges. Two were dropped. One ofthe remaining charges was amended to record that Mr Mani had remained on landoccupied by the victim as a protected person, notwithstanding that she had asked himto leave (rather than that he entered the land as originally charged). No convictionswere entered at this point, to allow Mr Mani the opportunity to pursue dischargeswithout conviction.[22] Mr Mani was granted bail afresh. It appears from the District Court file thatthere was a further breach of bail appearance on 13 September 2018. According to thefile, Mr Mani thought that the terms of his bail had been varied when the Family Courtallowed him to have supervised contact with his child. He apparently considered thatthereafter it was acceptable for him to make contact with the victim. The breach wasnevertheless accepted.[23] Mr Mani's applied for discharges without conviction and a hearing wasscheduled for 10 June 2019. Submissions for both Mr Mani and the police and anaffidavit from Mr Mani were filed in advance. However, the hearing was adjournedas Mr Mani (without seeking leave from the Court to depart from New Zealand) hadreturned to Fiji, due to a family bereavement. No warrant to arrest was issuedhowever. Rather, the hearing of the application was adjourned to 18 July 2018.[24] As noted, the application was heard on that date by Judge Harvey. Theapplication was heard in Mr Mani's absence because, on 30 June 2019, ImmigrationNew Zealand had declined to issue him with a visa permitting him to return to NewZealand.[25] Mr Mani is still in Fiji. He seeks discharges without conviction, because hebelieves that this will make it easier for him to obtain a visa, permitting him to returnto this country. He is anxious to return, so that he can see his son, so that he canfinalise arrangements for the sale of the former matrimonial home with the victim, andso that he can pursue his long-term goal of securing a resident's visa.District Court decision[26] Judge Harvey started his decision by recording the factual allegations. Herecorded his view that the incident which occurred on 30 March 2018 was moresinister than the earlier breaches, noting that the victim had arrived at her home atabout 9.00 pm and that Mr Mani had earlier arrived at the house. The Judge noted thatthe victim did not know Mr Mani was there, and that when he came out of one of thebedrooms, he ignored her requests that he should leave. The Judge noted the concernexpressed by Mr Mani regarding his immigration status in New Zealand, and that hisstatus could well be prejudiced by any convictions. The Judge expressed the view that"it did not require a conviction for that fact to become a reality",5 but neverthelessrecorded the submission made for Mr Mani to the effect that if he were granteddischarges without conviction, he could return to New Zealand and attempt toregularise his immigration status.[27] The Judge went on to record that he was required to consider the applicationfor discharges without conviction, noting that he had to start at the beginning, assessthe gravity of the offences, look at the consequences of the convictions and thenconsider whether or not they were disproportionate.[28] The Judge observed that the offending was persistent, in breach of theprotection order, and that it involved calls late at night. He referred again to theincident of 30 March 2018. He expressed the view that Mr Mani's behaviourdemonstrated ongoing and controlling behaviour. He observed that the protection offamily violence victims has assumed significantly greater importance in recent timesand that family violence is "a blot upon this country's landscape".6 He noted that thetelephone calls had escalated to physical presence, and that the physical presenceoccurred while Mr Mani was on bail. He accepted that there was no physical violence.The Judge acknowledged that Mr Mani has tried to take some steps to gain a betterunderstanding of the significance of his offending, but he nevertheless found that, ona "scale of 1 to 10", Mr Mani's offending was "at about the range of 6, and thereforemoderate getting on towards high".7 The Judge considered that expressions of remorse5 Police v Mani, above n 1, at [6].6 At [8].7 At [9].by Mr Mani flowed more from the consequences that he might face than anythingelse and that his post-arrest conduct did not repair the damage that had occurred.[29] The Judge went on to consider the consequences, observing that decisionsrelating to immigration must be made by the Immigration Department. He held thatthe Court should not usurp the role of the Immigration authorities and that it shouldnot in any indirect way, attempt to condone the offending.[30] The Judge noted that Mr Mani had in any event been refused a visa to returnto New Zealand, and stated as follows:8The risk that the defendant fears has of course come to pass, but as far as I amconcerned I do not see that as a disproportionate consequence to what Iconsider to be serious offending.The Judge declined to exercise his discretion and dismissed the application fordischarges without conviction. He issued a warrant for Mr Mani's arrest so that hecould be brought before the Court to face sentence if and when he returns to thiscountry. Notably, he did not enter convictions against Mr Mani.The appeal[31] The appeal has been brought as a general appeal – purportedly pursuant tos 250 of the Criminal Procedure Act 2011. I doubt that this can be correct. Section250 deals with appeals against sentence. Mr Mani has not been sentenced. Nor haveconvictions yet been entered against him. An appeal against a refusal to discharge adefendant without a conviction is properly characterised as an appeal against bothconviction and sentence.9 Arguably, there is no jurisdiction to bring the appeal.However, the Crown did not take the point, and instead dealt with the appeal on itsmerits. I proceed on this basis.[32] An appeal against a refusal to discharge without conviction proceeds by wayof rehearing, with the appellate Court making its own assessment. While the firstinstance Court had a discretion pursuant to s 106 of the Sentencing Act 2002 when8 At [10].9 Jackson v R [2016] NZCA 627, [2016] 28 CRNZ 144.determining whether or not to discharge Mr Mani without conviction, the discretionconferred by s 106 is fettered by s 107. It provides a gateway through which anydischarge without conviction must first pass.10 Section 107 requires judicialassessment of identified threshold criteria, and this does not involve the exercise of adiscretion.Submissions[33] Mr Harder, on behalf of Mr Mani, submitted that Judge Harvey overstated thegravity of Mr Mani's offending, and gave insufficient weight to the consequences ofconvictions on Mr Mani. He argued that the phone related offending is best consideredas a naïve error of judgment. He acknowledged that the March 2018 offending wasmore serious, but put it to me that it too had to be seen in context. He argued that itwas not a case of pre-meditated stalking, that there was no threatening behaviour, andthat rather, the offending was a misguided attempt to repair the relationship, after somepositive efforts had been made by Mr Mani to deal with his earlier offending. Heargued that the offending as a whole should be characterised as low to moderate, takinginto account the fact that Mr Mani was in custody for approximately a month,undertook rehabilitation courses and otherwise complied with his bail conditions.[34] Mr Harder referred to a number of decisions which discuss the immigrationconsequences of convictions, and where applications for discharge without convictionhave been made. He argued that Mr Mani's situation is serious, because he has deeproots in New Zealand, having been in this country for over a decade. He argued thatthe entry of convictions will deprive Mr Mani of his opportunity to earn a living, tohelp raise his child and to be in New Zealand. In this regard, he referred to the bestinterests of the child provisions contained in ss 4 and 5 of the Care of Children Act2004. Relying on an alert notice appearing on Mr Mani's immigration file, he arguedthat Mr Mani will not be given a further visa/entry permission to come into NewZealand, unless he can first obtain a clear police certificate. He submitted that thatwill be impossible if convictions are entered.10 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8].[35] Mr Beattie, for the police, argued that Judge Harvey properly directed himselfin law, and that he correctly focused on the direct and indirect consequences ofconvictions, rather than the consequences generally, which include the consequencesflowing from matters predating the present offending. He argued that Judge Harveydid not overstate the gravity of the offending, and that it could not simply becharacterised as foolish or naïve. He argued that whether or not the direct or indirectconsequences of convictions are disproportionate will vary according to each case.Further, he argued that the consequences must be out of all proportion to the gravityof the offending and that there needs to be "a significant disproportion of consequencebefore the test will be satisfied". He noted that Mr Mani's temporary visa was due toexpire in August 2019, and that while Mr Mani may have hoped that a new visa wouldissue, there was no guarantee in this regard, because Mr Mani already had twoconvictions for offending committed in this country while on a temporary work visa.He noted the remarks of Judge Harvey to the effect that Immigration New Zealand hasalready refused Mr Mani a visa, notwithstanding that no convictions had then beenentered against him. He argued that Mr Mani's visa/immigration status is not a director even an indirect consequence of convictions being entered and that in any event,the Courts have generally concluded that it is appropriate for immigration issues to beresolved by the Immigration Service rather than by the Courts.Application to adduce fresh evidence[36] Mr Mani sought to file a further affidavit for the purposes of the appeal. Anyevidence has to be fresh and credible. Ordinarily, if the evidence could, withreasonable diligence, have been called at the first hearing, it will not qualify assufficiently fresh. This however is not an immutable rule, because the overridingcriterion is always what course will best serve the interests of justice.11[37] Here, much of Mr Mani's further affidavit reaffirms material that was alreadybefore Judge Harvey at the time the original decision was made. It cannot properly besaid to be fresh. Mr Mani does annex his immigration file, which he has obtainedfrom Immigration New Zealand. This evidence is not fresh, because it could, with11 R v Bain [2004] 1 NZLR 638 (CA); affirmed on appeal, Bain v R [2007] UKPC 33, (2007) 23CRNZ 71 at [34]; Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273.reasonable diligence, have been made available at the first hearing. Nevertheless, theCrown consented to this material coming before the Court and I accept it on that basis.The affidavit also extends to Mr Mani's current employment status and an offer ofemployment he has received from a New Zealand company. That information is fresh,and on the face of it, credible. I have considered this material. Other paragraphs inthe affidavit are simply opinion evidence by Mr Mani, and they are not admissible inany event. The paragraphs dealing with Mr Mani's parenting situation with his childare not fresh, nor are paragraphs dealing with negotiations between Mr Mani and thevictim regarding the sale of the family home. I nevertheless have considered thismaterial in the interests of justice.[38] The Crown has also sought to adduce through counsel an email received froman Immigration Office, Jenny Tims, dated 16 December 2019. She seeks to explainthe alert notices on Mr Mani's immigration file. Mr Harder was happy for thisinformation to come before the Court, and I have considered it on this basis.Analysis[39] Relevantly, ss 106 and 107 of the Sentencing Act provide as follows:106 Discharge without conviction(1) If a person who is charged with an offence is found guilty or pleads guilty,the court may discharge the offender without conviction, unless by anyenactment applicable to the offence the court is required to impose a minimumsentence.(2) A discharge under this section is deemed to be an acquittal....107 Guidance for discharge without convictionThe court must not discharge an offender without conviction unless the courtis satisfied that the direct and indirect consequences of a conviction would beout of all proportion to the gravity of the offence.[40] The approach to be followed in applying the s 107 test has been set out by theCourt of Appeal in Z v R.12 Arnold J held as follows:1312 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142; and see DC (CA47/2013) v R [2013]NZCA 255 at [30]–[35]; Ji v R [2015] NZCA 308 at [43]–[45].13 At [27]. when considering the gravity of the offence, the court should consider allthe aggravating and mitigating factors relating to the offending and theoffender; the court should then identify the direct and indirect consequencesof conviction for the offender and consider whether those consequences areout of all proportion to the gravity of the offence; if the court determines thatthey are out of all proportion, it must still consider whether it should exerciseits residual discretion to grant a discharge (although, it will be a rare casewhere a court will refuse to grant a discharge in such circumstances).[41] The Court must be satisfied that there is a real and appreciable risk that theidentified direct and indirect consequences will occur. It need not, however, besatisfied that those consequences are inevitable.14[42] Where it is argued that immigration consequences will flow as a consequenceof any convictions entered, the Courts have generally held that such decisions shouldbe left to the appropriate immigration authorities.15[43] In Ji v R the Court of Appeal noted:16 it is well-established that the courts should not usurp the function of theimmigration authorities in deciding whether a person should be deported ornot.[44] In Zhang v Ministry of Economic Development, Asher J observed as follows:17In relation to a conviction affecting an offender's immigration status, or indeedability to travel overseas, the courts often conclude that it is appropriate forthe consequences of conviction to be resolved by the appropriate authorities,rather than the Court attempting to pre-empt that decision-making process bya decision to discharge without conviction: There is nothing that requiresthe courts to intervene to try and impose their perception of what the rightimmigration consequences should be. That is best left to the immigrationauthorities. But a Court's assessment of culpability in the sentencing exercisemay assist those authorities. And there will always be occasions where in afinely balanced case a discharge may be warranted on these types of grounds: The case for discharge may not be so strong where the details of theoffending will be known and closely examined by the relevant authority in14 Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [34]; Alshamsi v Police HCAuckland CRI-2007-404-062, 15 June 2007 at [20].15 Ji v R, above n 12 at [49]; R v Foox [2000] 1 NZLR 641 (CA) at [39]; R v Mu CA262/03, 24October 2003; A (CA747/2010) v R [2011] NZCA 328 at [30].16 Ji v R, above n 12, at [49].17 Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011 at[14]; See also Zhao v Police [2014] NZHC 3121 at [23]–[25]; Liang v Police HC WellingtonAP38/02, 16 April 2003 at [20]; A (CA 747/2010) v R, above n 15, at [30].any event, than where the query will be only as to prior convictions, forinstance in an application for professional certification.[45] While there is no doubt as to the general principle, immigration consequencescan be taken into account in applying the s 107 proportionality test. A dischargewithout conviction may be appropriate if the consequence of subjecting the defendantto the scrutiny of the immigration authorities is out of all proportion. Brewer J hascommented as follows: 18I do not hold that the risk of deportation is a factor that the Court should nevertake into account in deciding the s 107 proportionality test. The section doesnot exclude effect on immigration status from consideration as a consequence.There will be situations where even the consequence of subjecting an offenderto the scrutiny of Immigration New Zealand would be undue. But, in the usualrun of cases, the Court should not take it upon itself to, in effect, decideimmigration status.I agree with this observation.[46] The approach the Courts have taken to the issue of immigration consequencesis consistent with the approach taken to employment consequences where there is anindependent body charged with determining the suitability of individuals for particularemployment. In this context,19 Hammond J noted as follows:Whether a conviction will form an occupational barrier is a relevantconsideration in determining whether to grant a discharge without conviction.Where the conviction will result in an absolute bar to the occupation that maycarry extra weight with the Court. I do not think there is any such suggestionin this case. If there is an independent body charged with determining thesuitability of individuals for particular employment, the Court may be moreready to enter a conviction, it being of the view that it is in the public interestthat that body is best able to make a decision with the benefit of full disclosureof the fact. The fact that the conviction may act as a barrier to gaining entranceto an occupation is not a determinative factor - it is merely a factor to beconsidered in the balancing exercise.[47] Similarly, in R v Rollo,20 the Court of Appeal accepted a submission "that theCourt should take care not to usurp the function of registration bodies, such as theCouncil, by routinely providing discharges in cases of this kind".2118 George v Police [2014] NZHC 1725 at [46]; See also Jeon v Police [2014] NZHC 66 at [20]–[21];Kumar v Police [2015] NZHC 3293 at [36]–[41].19 Liang v Police, above n 17, at [17].20 R v Rollo CA1/04, 8 October 2004; Maraj v Police [2016] NZCA 279 at [28].21 At [6]–[7].[48] The most recent authority dealing with the impact of a conviction on anindividual's immigration status is the decision of the Court of Appeal in Rahim v R.22The Court there noted that there is a distinction between the consequences of aconviction and the consequences of the underlying offending. That distinction is likelyto be engaged in immigration related applications, where an applicant can demonstratewith some certainty that it is the conviction itself which will have the very realprejudice on his or her immigration status. The Court of Appeal commented asfollows:[28] Courts assessing how a conviction might affect an offender'simmigration status or ability to travel overseas may consider that it isappropriate for the consequences of conviction to be resolved by the specialistauthorities, rather than by a Court pre-empting that decision-making processby a decision to discharge without conviction.[29] The reluctance of courts to intervene in the decision-making ofspecialist bodies such as Immigration New Zealand or, in the employmentcontext, professional disciplinary bodies, is most often evident where theoutcome cannot reasonably be predicted. In such cases, the consequence of aconviction will be the risk that the offender's immigration status or ability totravel overseas may change, or that disciplinary action, or some obstacle toqualification or employment, may occur.[30] In the present case, however, Mr Laurent's expert opinion establishesthat the real and appreciable risk is significantly higher than the mere prospectof deportation; it is that, after Mr Rahim has undergone all of the statutoryprocesses, a conviction is likely to result in his being required to leave NewZealand. That would be devastating for him and his family. We are satisfiedon this basis that Judge Taumaunu erred in classifying the consequential risk"somewhere between the middle to the higher end of the scale of seriousnessbut not at the extreme end". It is not always possible or helpful to place theconsequences of conviction on a scale of seriousness. The consequences arejust the consequences, either direct or indirect or both. Once they areidentified, the question is whether those consequences are "out of allproportion" to the gravity of the offending.[31] It is important also to identify whether the consequences underscrutiny are predicted to follow from the offending or from the fact ofconviction. The s 106 cases founded on the risk of employment consequencesprovide a good illustration of the point. Often, in such cases, it is theoffender's conduct and not merely the conviction which gives rise toconsequences the offender wishes to avoid. In this case, however, it is theconviction rather than what Mr Rahim did that will trigger the real andappreciable risk that he is likely to be deported.(Citations omitted)22 Rahim v R [2018] NZCA 182.[49] In considering whether there is jurisdiction to discharge an offender unders 106, the Court is required to undertake a three-stage analysis.(a) First, the Court must determine the gravity of the offending.(b) Secondly, the Court must determine the direct and indirectconsequences of any conviction entered.(c) Finally, the Court must assess whether those consequences are out ofall proportion to the gravity of the offence. It is likely to be only in rarecases that a discharge will not follow if the jurisdiction is found toexist.23[50] Against this background, I turn to consider the appeal in this case.[51] As noted, Judge Harvey considered that Mr Mani's offending was "six out often", and moderate heading towards high. Separately he referred to it as "seriousoffending".[52] In my judgment, the Judge was a little harsh in his categorisation of theoffending. The first three offences – committed by way of telephone – were notserious in themselves. The only aggravating features were that the offending waspersistent and that the protection order was repeatedly breached. I agree with theJudge that the fourth offence – that which occurred on 30 March 2018 – was moresinister. Mr Mani first entered and then remained in the appellant's dwelling andrefused to leave when repeatedly asked to do so. Mr Mani was not only in breach ofthe protection order, but it was also in breach of the conditions attaching to his bail.[53] I have considered aggravating and mitigating factors relating to Mr Mani andhis offending. I accept that Mr Mani spent approximately a month in custody and thathe attended rehabilitative courses. I am not however persuaded that this providesmuch assistance to him. That Mr Mani further reoffended after completingrehabilitative courses, to my mind, heightens his culpability. So does the fact that all23 Z (CA447/2012) v R, above n 12 at [27].of the offending was committed in breach of Court orders when the consequences ofbreach, at least of his bail conditions, was clearly pointed out to him by Judge Hikaka.It cannot be said that Mr Mani did not otherwise breach the terms of his bail. Not onlydid he breach the terms of his bail on 30 March 2018, but it appears from the Courtfile that he breached it again on 13 September 2018, when he once again made contactwith the victim.[54] In my view, the offending, viewed overall and in context, can properly becategorised as being moderately serious. I do not consider that it was in the moderateto high range, or that it was serious offending, as suggested by Judge Harvey.[55] I now turn to consider the consequences for Mr Mani if convictions are entered.[56] First, I note that, insofar as I can ascertain from the District Court file, noconvictions have yet been entered. Nevertheless, Mr Mani deposes that, when he triedto return to New Zealand on 30 June 2019, he was not permitted to board his aeroplanebecause he had been denied entry into New Zealand.[57] The immigration file which has been produced by Mr Mani contains two alertnotes. They read as follows:******** 11/Jun/2019 1:38pm Tims, Jenny Compliance Operations********NZ Police advise that this client has 4 breaches of a protection order and wasdue for sentencing yesterday and has previous history against the same victimand an excess breach alcohol charge. NZ Police advise that the police matterswere [adjourned] in Manukau District Court yesterday as the Judge did nothave the defence's submissions. Sentencing is now on 25 June 2019. As clienthas left NZ he will likely have a Warrant to Arrest on his police matters. NOfurther visa/entry permission to be granted unless a clear NZ Police certificateis granted. Please refer any queries on this client to Jennifer Tims on ********20/Jun/2019 8:51am Tims, Jenny Compliance Operations******** Emailfrom Police Prosecutions at Manukau: Client has applied for a s 106 dischargewithout conviction application which is scheduled for hearing on 25 June2019. He also has two previous convictions, one of which is a common assaultin 2011 against his ex-wife who is the same victim on the current chargesbefore the Court. Client had a final protection order awarded against him (onapplication from his ex-wife) which was granted in August 2017. The currentcharges to which [Mr Mani] is seeking a discharge without conviction for are4 charges of breaching that protection order. Please take this intoconsideration.[58] Ms Tims in her email says that she placed the first alert on Mr Mani'simmigration file, because she understood at the time that Mr Mani had failed to appear,and because she believed that the Court would likely issue a warrant for his arrest.She says that a clear NZ police certificate would mean that Immigration NewZealand's offshore branch would have assessed his criminal matters, and not identifiedany criminal or character concerns.[59] While the initial entry on 11 June 2019 asserts that no further visa/entrypermission is to be granted unless a clear NZ police certificate is granted, the secondentry on 20 June 2019, which appears to record an email from the police, clarifies theposition. The police accurately recorded the then current position and askedImmigration New Zealand to take into account the fact that Mr Mani has applied fordischarges without conviction. Ms Tims says in her email as follows:Mr Mani, regardless of a discharge without conviction will have to meetcurrent immigration instructions relating to character in effect at the time ofany further visa application that he makes. Even if granted a discharge withoutconviction there is no guarantee a further visa will be granted.This assertion is consistent with the relevant provisions in the Immigration Act andImmigration New Zealand's operational manual. As I understand it, Mr Mani was theholder of a temporary entry class visa, issued under s 76 of the Immigration Act 2009.Mr Mani has annexed to his affidavit the letter from Immigration New Zealand dated8 February 2017, granting him a work to residence visa which was due to expire on 7August 2019. It permitted Mr Mani to enter New Zealand as many times as he likedprior to that date, but advised that if he left New Zealand, and wished to return after 7August 2019, he would need to apply for a new visa.[60] The Immigration Department's operational manual, rule A5.45, relevantlyprovides as follows:A5.45 Applicants normally ineligible for a temporary entry class visa unlessgranted a character waiverApplicants who will not normally be granted a temporary entry class visa,unless granted a character waiver include any person who:d. has been convicted at any time of:i. any offence for which they have been imprisoned; orii. an offence in New Zealand for which the court has the powerto impose imprisonment for a term of three months or more;or[61] Mr Mani has two prior convictions – one for driving with excess breathalcohol, committed in June 2009, and the other for common assault (against the samevictim), committed in May 2011. Both carry a sentence of more than three months'imprisonment.[62] Regardless of whether or not Mr Mani is convicted or receives dischargeswithout conviction on the breach of protection order charges, he will require acharacter waiver. There is nothing to suggest that the entry of further convictions willchange the position. Mr Mani attached to his initial affidavit a letter from Tarita Ltd,who are New Zealand based immigration advisers. The author of the letter, RitaVinod, stated as follows:If you are convicted and sentenced to imprisonment [then] you will not be ableto work and this would mean that you will be breaching the conditions of yourvisa. Therefore, you may not be considered a bona fide temporary entrant.Furthermore, if you are convicted for the offence [then] you will be normallyineligible for a temporary entry class visa unless granted a character waiv[er]as per A5.45 of Immigration New Zealand operational manual. If ImmigrationNew Zealand does not grant a character waiv[er] you will not be granted awork visa.There is nothing on the District Court file to suggest that Mr Mani has yet beenconvicted, and he has certainly not yet been sentenced.[63] I can accept, as a matter of common-sense, that the entry of further convictionsfor breaching the protection order may attract more intense scrutiny by ImmigrationNew Zealand if Mr Mani applies for a further temporary entry class visa, butImmigration New Zealand is already aware of the offending. It is not the entry of anyconvictions themselves which prejudices Mr Mani's immigration status. Indeed, MsTims has stated that Mr Mani will have to meet current immigration instructionsrelating to character regardless of whether or not he is discharged without convictionand that even if he is discharged without conviction, there is no guarantee that a furthervisa will be granted to him. This assertion has come in by consent and it isunchallenged.[64] In my judgment, it is Mr Mani's offending, and not the prospect that he may atsome stage have convictions entered against him for that offending which gives riseto the consequences Mr Mani wishes to avoid. It cannot properly be said thatconvictions, which have not as yet been entered, have triggered any real andappreciable risk for Mr Mani.[65] It follows that the consequences of declining to discharge Mr Mani withoutconviction are not out of all proportion to the gravity of the offence. I have reachedthis conclusion, because I am not persuaded, on the materials before me, that there areany real and appreciable consequences as a consequence of the Judge's refusal todischarge Mr Mani without conviction.[66] That is enough to dispose of the appeal, but, for the sake of completeness, Irecord that I have considered whether or not the provisions of the Care of ChildrenAct are relevant. The paramountcy afforded to the welfare and best interests of thechild under that legislation have been referred to in other contexts – most often inrelation to bail applications. In some cases, the Courts have taken them into account.24In others, it has been held that the purposes of the Bail Act are inconsistent with theparamountcy principle.25 The Supreme Court has taken the view that the paramountcyprinciple does not apply in the immigration context.26 While it may be that in somecircumstances, the fact that a defendant has a child or children, and has parentingresponsibilities, will be a relevant consideration in exercising the s 106 discretion, Ido not consider that that factor has any weight in the present context. The FamilyCourt has made orders permitting the child to travel overseas with either parent after2022.27 No doubt that order could be varied to accommodate the present situation.24 See generally: Flynn v Police, HC Nelson, CRI 2007-442-24, 20 February 2008 at [8]; Bavou vPolice HC Auckland CRI-2010-404-18, 5 March 2010.25 See generally: Cossill v Police, HC Auckland, CRI 2004-404-396, 19 October 2004 at [9]; Nguyenv Police [2014] NZHC 85 at [26]; S P v R [2015] NZHC 258 at [42].26 Ye v Minister of Immigration [2009] NZSC 76, [2010] 1 NZLR 104 at [24].27 Chand v Mani [2019] NZFC 1008.While Judge Harvey did not expressly consider the Care of Children Act, I do notconsider it favours discharges without conviction in this case.28[67] Also for the sake of completeness, I note that it was argued that Mr Mani hasno right to appeal or review any decision made by Immigration New Zealand becausehe is out of the jurisdiction. I accept that on the face of it, the legislation does appearto preclude review,29 but I am not persuaded that it necessarily follows the Courts areprecluded from considering the legality of any decision made by Immigration NewZealand. The Supreme Court has held that a similar privative clause in theImmigration Act does not prevent the Court from exercising its supervisoryjurisdiction to ensure that the requirements of the Act are met, and that an applicant'sclaim is lawfully considered.30[68] In the circumstances, and for the reasons I have set out, the appeal is dismissed._____________________________Wylie J28 Weidemann v R [2018] NZCA 381, [2018] NZFLR 707 at [47]–[48].29 Immigration Act 2009, s 186.30 H v Refugee and Protection Officer [2019] NZSC 13, [2019] 1 NZLR 433 at [40], [46], [63], [64],[73]–[87].