CLARABAL v NEW ZEALAND POLICE [2020] NZHC 1518

CLARABAL v NEW ZEALAND POLICE [2020] NZHC 1518 [1 July 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-148[2020] NZHC 1518BETWEEN VICTOR CLARABALApplicantAND NEW ZEALAND POLICERespondentHearing: 29 June 2020Appearances: M J Mellin and R Sastry for AppellantD Muratbegovic for RespondentJudgment: 1 July 2020JUDGMENT OF LANG J[on application for leave to bring second appeal]This judgment was delivered by me on 1 July 2020 at 3.30 pm.Registrar/Deputy RegistrarDateSolicitors:Kayes Fletcher Walker, Manukau[1] Mr Clarabal pleaded guilty in the District Court to a charge of driving withexcess breath alcohol.1 In an oral decision delivered on 16 August 2019, theCommunity Magistrate declined an application by Mr Clarabal to be dischargedwithout conviction under s 106 of the Sentencing Act 2002. Mr Clarabal appealedagainst the Community Magistrate's decision. In a decision issued on 31 March 2020,Judge R J Earwaker dismissed the appeal.2[2] Mr Clarabal seeks leave to bring a second appeal to this Court against theJudge's decision. On 20 May 2020 Whata J directed that the application for leave toappeal should be heard at the same time as the substantive appeal. The application forleave ultimately occupied the whole of the allocated hearing time. I therefore proposeto give my decision on that issue now.The offending[3] The summary of facts prepared for the hearing in the District Court recordsthat at 11.33 pm on Saturday 8 June 2019 Mr Clarabal was driving a motor vehicle onGreat South Road, Manukau. His vehicle was observed swerving within its lane andtravelling at a fluctuating speed.[4] Mr Clarabal was stopped by police officers who were concerned about the wayhe was driving. He exhibited signs of recent alcohol intake in that he smelt of, andadmitted to having consumed, alcohol. Breath testing procedures were carried out andan evidential breath test recorded a reading of 787 micrograms of alcohol per litre ofbreath. When interviewed, Mr Clarabal admitted he had consumed two bottles of beerat a friend's house before driving.Principles relevant to the application for leave to bring a second appeal[5] The application for leave to bring a second appeal is governed by ss 237(2) and253(3) of the Criminal Procedure Act 2011. In short, this Court must not grant leaveunless it is satisfied either that:1 Land Transport Act 1998, s 56(1).2 Clarabal v Police [2020] NZDC 4115.(a) The appeal involves a matter of general or public importance; or(b) A miscarriage of justice may have occurred, or may occur unless theappeal is heard.[6] Mr Clarabal contends both limbs of the test are satisfied. The Crown contendsneither is engaged. I propose to consider each of the tests in turn.Does the appeal raise an issue of general or public importance?[7] The test for a discharge without conviction is straightforward and well known.It requires the Court to determine whether the direct or indirect consequences of aconviction would be out of all proportion to the gravity of the offending.3[8] The approach to be taken in determining an application for discharge withoutconviction is also well established. A court considering an application for dischargemust consider three issues.4 It must first assess the gravity of the offending havingregard to the facts of the particular case. This exercise is not restricted to theaggravating and mitigating factors of the offending itself. Factors personal to theoffender may also be relevant.5 Next, it must identify the direct and indirectconsequences of a conviction being entered. In this context there must be a "real andappreciable" risk that any posited consequence will occur.6 Thirdly, the court mustdetermine whether the consequences of a conviction would be out of all proportion tothe gravity of the offending. There is a residual discretion not to grant a discharge butthat will rarely be exercised where the statutory criteria have been met.[9] In the present case Mr Clarabal does not contend either the Judge orCommunity Magistrate applied the wrong test. Rather, he says they ought to havereached a different result on the facts of his case. That issue does not raise any questionof general or public importance.3 Sentencing Act 2002, s 107.4 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16]–[17].5 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27]; DC (CA47/2013) v R [2013]NZCA 255 at [35].6 DC (CA47/2013) v R, above n 5, at [43].[10] Mr Clarabal primarily seeks leave to bring a second appeal because he believesa discharge without conviction may assist him to remain in New Zealand. He has beenliving and working here for the last seven months under the authority of a temporaryentry class visa. His wife and family continue to reside in the Philippines. He hasbeen supporting them from the wages he has been earning in New Zealand.[11] Following his conviction by the Community Magistrate, Mr Clarabal wasserved with a deportation liability notice under s 157 of the Immigration Act 2009(the Act). The Immigration and Protection Tribunal subsequently dismissedMr Clarabal's appeal based on humanitarian grounds under s 207 of the Act.7[12] On Mr Clarabal's behalf Mr Mellin contends the proposed appeal raises twoissues of general or public importance. First, he says there is now a developing trendof cases demonstrating that the courts have been prepared to grant discharges withoutconviction where the existence of a conviction is likely to have consequences for aperson who is liable to be deported. He cites Rahim v R and Bong v R as two recentcases in which the Court of Appeal has entered a discharge without conviction for thisreason.8 Another example is this Court's decision in Vohra v R.9 Mr Mellin says thepresent case provides the Court with an opportunity to analyse the reasons why thecourts now appear to be more prepared to grant discharges against conviction wheredeportation of the defendant may be one of the consequences of a conviction. He saysnone of the recent cases have articulated these in any detail.[13] Mr Mellin also submits that, in cases like the present where a defendant isliable for deportation under s 157, the courts have concentrated on the fact thatdeportation may still occur even if a discharge without conviction is entered. Theyhave failed to recognise that the existence of a conviction may also influence decisionsabout the offender's deportation that may be made subsequently under sections otherthan s 157. He contends a decision of this Court pointing this out will be of generalor public importance.7 Clarabal [2020] NZIPT 504789.8 Rahim v R [2018] NZCA 182; Bong v R [2020] NZCA 94.9 Vohra v Police [2018] NZHC 3192.A developing trend?[14] The most recent case in this area of the law is Singh v Police.10 In that caseKatz J noted11 that in Zhang v Ministry of Economic Development Asher J hadcautioned against the courts usurping the role of immigration officials:12 it is appropriate for the consequences of conviction to be resolved by theappropriate authorities, rather than the Court attempting to pre-empt thatdecision-making process by a decision to discharge without conviction []There is nothing that requires the courts to intervene to try and impose theirperception of what the right immigration consequences should be. That is bestleft to the immigration authorities And there will always be occasionswhere in a finely balanced case a discharge may be warranted on these typesof grounds. The case for discharge may not be so strong where the details ofthe offending will be known and closely examined by the relevant authorityin any event, than where the query will be only as to prior convictions, forinstance in an application for professional certification.[15] Justice Katz then went on to observe:[37] Zhang was subsequently confirmed by the Court of Appeal in Ho vR.13 The general approach advocated in Zhang and clarified in subsequentcases is justified on grounds of institutional competence and comity. Theimmigration authorities are those with the institutional background andcompetence required to deal with immigration questions and have beenempowered by Parliament to make that assessment. If the immigrationauthorities assess that a defendant's offending is serious enough to warrantdeportation, then that is generally their assessment to make, and there areappeal/review rights available.[38] However, in 2018, the Court of Appeal moderated the positionsomewhat in Rahim and granted a discharge without conviction wheredeportation would break up a family unit.14 There have been a number of HighCourt decisions since then that have recognised that where deportation of anoffender will cause serious harm to a defendant's family (usually in the formof a family unit being broken up) that may be sufficient to justify a dischargewithout conviction.15 For example, in R v Tang, deportation of the defendantwould have resulted in her losing all contact with her four year old son.16[39] It is relatively rare, however, for deportation risk to be taken intoaccount as a relevant consequence of offending in cases where deportation10 Singh v Police [2020] NZHC 368.11 At [36].12 Zhang v Ministry of Economic Development HC Auckland CRI 2010-404-453, 17 March 2011 at[14].13 Ho v R [2016] NZCA 229.14 Rahim v R [2018] NZCA 182.15 For example, Singh v Police [2019] NZHC 417; Kovalic v Police [2019] NZHC 1214; R v Tang[2019] NZHC 2056; Sunda v Police [2019] NZHC 756; Chand v Police [2017] NZHC 1119.16 R v Tang [2019] NZHC 2056.will not result in serious harm to the offender's family unit in New Zealand.Ultimately, however, each case must be assessed on its own merits.[16] It is clear from this passage that Katz J considered the willingness of the courtsto intervene in this area has largely been restricted to cases in which deportation of theoffender would result in the breakup of the family unit.[17] I would add another observation. I consider it significant that the appellants inRahim, Bong and Vohra had all pleaded guilty to, or been found guilty of, chargeswhere the seriousness of the offending could not be determined solely by reference tothe nature of the charge. The appellant in Rahim pleaded guilty to a charge of indecentassault, the appellant in Bong had been found guilty on a charge of assaulting a femalebut acquitted of much more serious charges and the appellant in Vohra had pleadedguilty to a charge of assaulting a female. Culpability for these types of offence canfall within a very wide spectrum, and can only be assessed properly through carefulanalysis of the facts of the case. In all three cases the analysis of the facts led thecourts to conclude the overall culpability of the offending was either low or very low.17In addition, the courts in each of those cases knew the existence of the conviction washighly likely to result in the appellant being deported. It is therefore not surprisingthat they were prepared to apply their assessment of gravity of the offending againstthe probability of deportation if a conviction was entered.[18] I therefore consider it is already possible to discern the basis on which thesecases were decided. Even if they reflect a trend I do not consider it necessary for thisCourt to carry out any further analysis of the reasons why first courts of appeal havegranted discharges without conviction.[19] Furthermore, this case raises no issues of the type raised in the cases on whichMr Mellin relies. The culpability of Mr Clarabal's offending is readily ascertainablefrom the charge. Any deeper analysis of the underlying facts would only reveal thathis offending is more culpable then the charge suggests because of the manner inwhich it came to the attention of the police. No issue of family breakup arises. Thepresent case is therefore not a worthy candidate for a second appeal.17 Rahim v R, above n 8, at [22], Bong v R, above n 8, at [30], Vohra v R, above n 9, at [32].Influence of a conviction on other avenues available to avoid deportation[20] Mr Clarabal's status as the holder of a temporary entry class visa means he issubject to liability for deportation under s 157 of the Act. Section 157 provides asfollows:157 Deportation liability of temporary entry class visa holder forcause(1) A temporary entry class visa holder is liable for deportation if theMinister determines that there is sufficient reason to deport thetemporary entry class visa holder.(2) The person has 14 days from the date of service of the deportationliability notice to give good reason why deportation should notproceed.(3) Subsection (2) does not apply if—(a) the person is the holder of a limited visa; or(b) the Minister determines that the person is an excluded person.(4) A temporary visa holder or interim visa holder who is liable fordeportation under this section may, not later than 28 days after the dateof service of a deportation liability notice, appeal to the Tribunal onhumanitarian grounds against his or her liability for deportation.(5) For the purposes of subsection (1), sufficient reason includes, but isnot limited to,—(a) breach of conditions of the person's visa:(b) criminal offending:(c) other matters relating to character:(d) concealing relevant information in relation to the person'sapplication for a visa:(e) a situation where the person's circumstances no longer meet therules or criteria under which the visa was granted.[21] As is evident from the wording used in the s 157(1), the Minister maydetermine there is sufficient reason to deport a person holding a temporary entry classvisa. Sufficient reason in this context includes criminal offending and matters relatingto the person's character. Both grounds may exist even where no conviction has beenentered for the actions that constitute the offending or affect the character of the visaholder.[22] Section 157 is to be contrasted with s 158, which relates to the liability fordeportation of persons who hold a residence class visa. Such persons will only beliable for deportation when they are convicted of certain types of offence.18 As theJudge observed, this reflects the fact that a residence class visa is a higher and moresecure category of visa than a temporary class visa and therefore has a higher thresholdfor deportation.19[23] The Immigration and Protection Tribunal has observed in several cases that aperson holding a temporary entry class visa may be deported under s 157 for criminaloffending even where discharges without conviction have been entered.20 It followsthat a discharge without conviction of itself will not prevent Mr Clarabal from beingdeported from New Zealand. The immigration authorities have in fact already advisedhim that deportation will continue even if that occurs.[24] Mr Mellin points out that the Judge in the present case only considered theposition from the perspective of Mr Clarabal's liability for deportation under s 157(1).He submits the Judge ought to have gone further and recognised that, even though theexistence of a conviction is not a pre-requisite for Mr Clarabal to be deported under s157(1), it may nevertheless influence decisions to be made in other avenues that maybe open to him to avoid deportation. He submits the approach taken by the Judge inthe present case is routinely adopted in the District Court and it raises an issue ofgeneral or public importance sufficient to justify a second appeal.[25] Section 157(2) permits a person who is served with a deportation liabilitynotice to provide the immigration authorities with good reason why deportation shouldnot proceed within 14 days of being served with the notice. If this is unsuccessful theperson may then appeal against liability for deportation to the Immigration andProtection Tribunal (IPT) under s 207 of the Act. The IPT may only allow such anappeal where there are exceptional circumstances of a humanitarian nature that wouldmake it unjust or unduly harsh for the appellant to be deported and it would not in allthe circumstances be contrary to the public interest to allow the appellant to remain in18 Section 158(1).19 Clarabal v Police, above n 2, at [67].20 Examples are Chauhan [2018] NZIPT 503901 at [22], Almoka [2017] NZIPT 502990 at [18],Jangra [2018] NZIPT 503766 at [21] and Yang [2016] NZIPT 502927 at [22].New Zealand. Mr Clarabal has already availed himself of these two procedureswithout success so a second appeal will not assist him in these areas.[26] Mr Clarabal still has three possible avenues to pursue to avoid deportation.Once a deportation order is served on him under s 175 of the Act he may apply to anImmigration Officer under s 177 of the Act for cancellation of the order. Theimmigration officer has absolute discretion to cancel the order but must consider doingso where the person provides information about his or her personal circumstances thatis relevant to New Zealand's international obligations.21 Other than this, however, theofficer may make a decision as he or she thinks fit and is not obliged to apply anyparticular test or to make further inquiries into the circumstances of the person liablefor deportation.22[27] Mr Clarabal can also request the Minister of Immigration to issue a writtennotice cancelling his liability for deportation under s 172 of the Act. The Minister mayissue such a notice whether or not the person liable for deportation has shown goodreasons under s 157(2) why deportation should not occur. The decision to cancel aperson's liability for deportation is at the absolute discretion of the Minister.23[28] Finally, Mr Clarabal may ask the Minister to grant him a special visa under s61 of the Act. Section 61(1) permits the Minister, of his or her own volition, to granta visa of any type to any person who is unlawfully in New Zealand and is not a personin respect of whom a deportation order or removal order is in force. A decision togrant a visa under s 61(1) is in the Minister's absolute discretion.24[29] As will be obvious, the decisions that will be made if Mr Clarabal pursues anyor all these avenues are highly discretionary in nature. I accept that the existence of aconviction may sometimes be relevant to their exercise. The breadth of the discretionin each case is such, however, that courts of first instance cannot realistically includethem within the likely consequences to be taken into account when considering an21 Immigration Act 2009, s 177(2).22 Section 177(3)(a) and (b).23 Section 172(5).24 Section 61(2).application for discharge. I am therefore not be prepared to grant leave under thisground.Miscarriage of justice[30] There is no risk in the present case that a miscarriage of justice may occurbecause of a wrongful conviction. Mr Clarabal pleaded guilty to the charge in the faceof overwhelming evidence. Furthermore, any person who drives with excess breathalcohol must usually expect to be convicted of that offence. The only argument MrClarabal can mount under this ground is that a miscarriage of justice is likely to occurbecause the existence of a conviction may influence or affect the likelihood ofdeportation, and this would be out of all proportion to the gravity of the offending.[31] As will already be evident, this proposition faces an initial hurdle in that it isthe offending rather than the conviction that has triggered Mr Clarabal's liability fordeportation under s 157(1).[32] Even on a conventional analysis, however, it is difficult to see how it can besaid there has been any error by the courts below. I consider the CommunityMagistrate and Judge were correct to conclude the offending was of moderateseriousness given the high breath alcohol reading and the fact that the offending wasdetected because of the manner in which Mr Clarabal was driving.25 He could easilyhave been involved in a collision with another vehicle and thereby caused death orinjury to other persons or himself. The guilty plea was also inevitable given thestrength of the case against him. Any credit for good character and rehabilitativeefforts would be minimal given the short period of time he had been living in NewZealand when the offending occurred. I do not consider these mitigating factors aresufficient to reduce the gravity of the offence to any material degree.[33] When considering the consequence of likely deportation several factors arerelevant. These include the fact that Mr Clarabal had been living in New Zealand forjust seven months at the time of the offending. He was here under the authority of a25 Clarabal v Police, above n 2, at [31].temporary visa and had no legitimate expectation of remaining here permanently orindefinitely.[34] In the affidavit filed in support of the application for discharge Mr Clarabaldeposes:15. I am 35 years old migrant worker from Filipinos. I have a child leftto the care of my Mother. My partner works as a Domestic help. Theyare all living in Visayan Province. I have been remitting money to myfamily on regular basis for the upkeep of my family and to clear mydebt, which I have incurred while coming to New Zealand.16. I have genuine desire to continue my employment career for myfamily and for myself. Any conviction will directly impact upon myemployment and there is a real and appreciable risk of loss of my job.I can not apply for renewal of my job contract in NZ due to anyconviction. I am doing voluntary community work at [].[35] As these paragraphs demonstrate, Mr Clarabal has little or no connection withthis country. He came to New Zealand for purely financial reasons, namely to workhere and remit funds to his family in the Philippines. He does not suggest he will beunable to find future employment in the Philippines or elsewhere. Deportation willalso reunite him with his family, albeit he will need to find new employment.[36] I therefore consider there is no risk of a miscarriage of justice occurring ifMr Clarabal is not granted leave to advance a second appeal. It is now for theimmigration authorities and the Minister of Immigration to determine whether heshould be permitted to remain in New Zealand or be deported. He is in the sameposition as any other person who commits a criminal offence whilst holding atemporary entry class visa.The abuse of process argument[37] Mr Clarabal considers an abuse of process has occurred because theimmigration authorities only became aware of his offending after the police alertedthem to the fact that he had been convicted of driving with excess breath alcohol. Thisoccurred when a police officer made an enquiry of Immigration New Zealandregarding Mr Clarabal's immigration status prior to the hearing before the CommunityMagistrate.[38] Mr Mellin endeavoured to persuade me that the actions of the policeundermined Mr Clarabal'a application for discharge without conviction but I fail tosee how this is the case. The Community Magistrate had no knowledge of this issuewhen he declined Mr Clarabal's application for discharge and Mr Clarabal was notaware of it either. For that reason the issue could not have influenced the CommunityMagistrate's decision.[39] The prospect that Mr Clarabal would be deported was known by the time JudgeEarwaker heard Mr Clarabal's appeal because by that stage he had been served withthe deportation liability notice. The Judge observed that counsel had made "extensivesubmissions" about the issue but he did not consider it to be particularly relevant tothe decision he was required to make.26[40] I agree with the Judge on this point. Nor do I consider it adversely affected MrClarabal's prospects of obtaining a discharge without conviction on the appeal toJudge Earwaker. When the Community Magistrate heard Mr Clarabal's applicationfor discharge without conviction Mr Clarabal was only at risk of deportation becausethe immigration authorities had not commenced formal deportation procedures. Bythe time the Judge heard Mr Clarabal's appeal the risk had crystallised, because MrClarabal had been served with the deportation liability notice. It therefore assistedhim in his argument that the consequences of conviction, namely the probability ofdeportation, were out of all proportion to the overall gravity of the offending.Result[41] The application for leave to advance a second appeal is declined.Lang J26 Clarabal v Police, above n 2, at [31].