Anufe v Police [2021] NZCA 253 (18 June 2021)

Last Updated: 22 June 2021

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA587/2020 [2021] NZCA 253

	BETWEEN	KI ANUFE Appellant
	AND	NEW ZEALAND POLICE Respondent

Hearing:	23 March 2021
Court:	Miller, Brewer and Dunningham JJ
Counsel:	A S Bloem for Appellant MRL Davie for Respondent
Judgment:	18 June 2021 at 11.00 am

JUDGMENT OF THE COURT

The application for leave to appeal is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

• [1] Mr Anufe seeks leave to bring a second appeal against refusal to grant a discharge without conviction on one charge of making an intimate visual recording. His application rests on what he says is his near-inevitable deportation and resulting family separation should he be denied a discharge.

The offending

• [2] Mr Anufe worked in a retail warehouse in Onehunga. On 18 November 2019 the victim, a customer, entered a disabled bathroom. Mr Anufe used his cellphone to record her through a hole, about 70 mm in diameter and at shin height, as she prepared to use the toilet. We infer that he was apprehended because the victim noticed him squeeze through a gap to get into a back room beside the toilet before she entered it. He admitted the offence and stated that he had done it more than 10 times during his employment at the warehouse.

The sentencing

• [3] Judge Sinclair outlined the facts and summarised the test for a discharge without conviction.^[1] It is not suggested that she misdirected herself. She accepted that the offending sat at the low to moderate end of the spectrum, but it was premeditated — she found that Mr Anufe had made the hole in the wall — and he had filmed people in this way more than 10 times.^[2] The victim’s privacy was violated and the effect on her was “adverse and profound”.^[3] The offending also involved an abuse of trust. In mitigation, Mr Anufe had no relevant previous convictions and was able to offer letters of support. He had undertaken 11 hours’ community work and made a donation to a charity. He had also pleaded guilty at an early opportunity and was prepared to offer emotional harm reparation.^[4]
• [4] Turning to the consequences of conviction, the Judge noted that Mr Anufe was 33 and a Samoan national in New Zealand on a residence class visa. He has one child and his wife, a New Zealand citizen, was pregnant with a second. Her parents reside with the couple and are financially dependent on them. The Judge referred to an affidavit prepared by an immigration lawyer, Mr Garrett Wong, which stated that there was a high risk Mr Anufe would be liable for deportation and would be unable to establish the exceptional circumstances required for a humanitarian appeal. The Judge cited authorities which indicate that a court should be slow to intervene in deportation decisions, instead leaving them to the relevant authorities to decide.^[5] There were no other relevant consequences because Mr Anufe was unlikely to lose his current job.

The first appeal court decision

• [5] Mr Anufe appealed to the High Court. He filed a second affidavit of Mr Wong, to substantially the same effect as the first. It confirmed Mr Wong’s opinion that there is a high likelihood a deportation liability notice will be issued.
• [6] Davison J dismissed the appeal, finding in a thoroughly reasoned decision that the consequences of conviction were not out of all proportion to the gravity of the offending.^[6] The admission that Mr Anufe had behaved in this way previously pointed to premeditation and enhanced culpability.^[7] He denied having made the hole in the toilet wall and the summary of facts was silent on the point, so the Judge did not treat that as evidence of premeditation. But he had plainly exploited the opportunity that the hole presented. The offending was not due to a momentary lapse of judgment; he had to identify a potential victim then set up his phone to record her. What followed was a gross invasion of privacy which breached the trust of both the victim and the employer. He could have shared the images. Against that, it was to his credit that he admitted the offending and pleaded guilty at an early stage. He had expressed remorse and offered to pay reparation. Overall, Davison J considered the offending moderately serious.^[8]
• [7] The Judge noted that Mr Anufe is liable for deportation following conviction because he holds a residence class visa and had been convicted of an offence punishable by a term of three months’ or more imprisonment. That was a policy decision taken by the legislature, which left it to the immigration authorities to decide whether deportation will actually occur. There was a real and appreciable risk that his conviction would have consequences for his visa, but it could not be assumed that deportation would be the end result.^[9] A court must assume the immigration authorities will carry out their responsibilities fairly and rationally, taking into account the nature and gravity of the offending and his personal circumstances, including the effects of deportation on him and his family. The Judge distinguished Rahim v R, in which this Court held that a discharge ought to be granted for an offender, the gravity of whose offending was low. In that case, the Judge reasoned, the real and appreciable risk of deportation was itself a disproportionate consequence.^[10]

The application for leave to bring a second appeal

• [8] Under s 237(2) of the Criminal Procedure Act 2011 this Court may grant leave to bring a second appeal if satisfied that the appeal involves a matter of general or public importance or a miscarriage of justice may occur if the appeal is not heard.
• [9] Mrs Bloem for Mr Anufe submitted that the test is met because Davison J incorrectly characterised the gravity of the offending as moderately serious and erred in the balancing test. Further, the Judge erred by concluding that the decision was best left to immigration authorities. He was wrong to follow the judgment of Asher J in Zhang v Ministry of Economic Development;^[11] subsequent judgments, such as in Rahim v R, Bong v R and R v Tang, support departure from this approach where the immigration consequences are clear and include family separation.^[12] The Judge may not have considered expert evidence (a second affidavit from Mr Wong) that there is a high risk not merely that Mr Anufe will be exposed to deportation but that he will in fact be deported. It is necessary to consider the rights of children and New Zealand’s obligations under the United Nations Convention on the Rights of the Child, along with the Samoan custom of fa’a Samoa, which requires that Mr Anufe support his wife’s parents.
• [10] For the Crown, Mr Davie responded that Davison J was not wrong to find the offending moderately serious, nor was he wrong to leave the deportation decision to the immigration authorities. It is well-established that courts will generally avoid usurping those functions. There are rare cases in which a high likelihood of deportation may justify a discharge, but this is not such a case. The cases cited by the applicant in which this Court has granted discharges without conviction because of a real and appreciable risk of deportation are all distinguishable; they involved offenders whose offending was much less serious and/or were already required to leave New Zealand. In this case deportation is neither imminent nor guaranteed. Mr Anufe holds a residence visa, meaning that his conviction makes him liable to deportation but a separate decision must be made to issue a deportation order. He will remain in New Zealand until that decision is made. The circumstances on which he relies to seek a discharge, including his established life and family in New Zealand, will be considered in a fair and rational immigration decision-making process. Davison J did not overlook the expert evidence.

Immigration status

• [11] Mr Anufe holds a residence class visa which was granted on 18 September 2019. He is liable to deportation because he offended within weeks after the visa was granted by committing an offence with a maximum penalty greater than three months’ imprisonment.^[13] Additionally, under s 161(1)(b) of the Immigration Act 2009 the holder of a residence class visa is liable to deportation if convicted of an offence for which a court may impose imprisonment for a term of two years or more, provided the offence was committed not later than five years after the visa was granted.
• [12] A residence class visa holder who becomes liable to deportation is not automatically issued with a deportation liability notice. Mr Wong deposed that the process for deportation would involve immigration officers preparing a submission for the Minister of Immigration to determine whether a notice should be served. Mr Anufe would have an opportunity to make submissions. If a notice were served, he would have the right to appeal to the Immigration and Protection Tribunal on humanitarian grounds against his liability for deportation.^[14] The threshold is high; he would need to demonstrate exceptional circumstances. His family circumstances may not suffice.
• [13] Mr Wong did not discuss s 172 of the Act, under which the Minister may in their absolute discretion cancel a person’s deportation liability or suspend it subject to compliance with conditions.

No process error in the High Court

• [14] We agree with Mr Davie that there is no reason to think Davison J overlooked the second affidavit of Mr Wong. That affidavit is in any event not materially different to the first. In his first affidavit Mr Wong expressed the opinion that it is highly likely a deportation liability notice will be issued. He confirmed that view in his second affidavit.

Liability to deportation not a disproportionate consequence

• [15] The conviction triggers Mr Anufe’s liability to deportation under s 161. The corollary is that if he is discharged without conviction he will not be liable. We observe that deportation liability for holders of other classes of visa may rest on the offending rather than the conviction.^[15]
• [16] Davison J correctly recognised that Courts sometimes find exposure to deportation liability and its associated processes a disproportionate consequence of conviction. We refer for example to Rahim v R.^[16] A discharge may be granted in such cases independently of the likelihood that those processes will actually end in deportation.
• [17] It is not seriously arguable that this is a case in which exposure to deportation liability is a wholly disproportionate consequence of conviction. This case lacks the mitigating features of the offending that were present in cases such as Kumar v Police, where the offending was a response to prolonged racial abuse and the defendant was otherwise “of excellent character”.^[17] In each of those cases the offending was a minor example of its type. This was calculated and repeated offending. But for the immigration consequences there would be no question of a discharge.

Deportation not a consequence of conviction

• [18] Mr Anufe argues that there is a real and appreciable risk he will be deported in consequence of his conviction. His case for discharge ultimately rests on the proposition that the humanitarian consequences of deportation outweigh the gravity of his offending.
• [19] As we have explained, he holds a residence class visa, which distinguishes this case from those in which an offender is at risk of being denied a visa or is already unlawfully in New Zealand. In this case a process must be initiated and followed through before he may be deprived of residency. The process is not mandatory and it has not begun. He will have an opportunity to make submissions before a deportation liability notice is issued and a right of appeal lies to the Tribunal on humanitarian grounds. Decision-makers will examine the gravity of the offending, including personal mitigating factors, and consider the undoubtedly important humanitarian consequences of deportation. That being so, Davison J was correct to find that any risk of deportation is a consequence of the offending rather than the conviction and the immigration consequences are a matter for immigration authorities.^[18]
• [20] We recognise that courts have sometimes been willing to grant discharges where it was thought that authorities would not consider the circumstances of the offending.^[19] In such cases courts may find that deportation is a consequence of conviction. However, that is not suggested here. Mr Wong’s concern rather is that authorities will consider the circumstances and conclude, as the courts below did, that the offending was not minor.

Decision

• [21] We do not think it seriously arguable that the courts below were wrong in the circumstances of this case. The application for leave to bring a second appeal is declined.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Police v Anufe [2020] NZDC 14261 [Sentencing notes].

^[2] At [9]–[10].

^[3] At [11].

^[4] At [13]–[16].

^[5] At [24]–[25], citing Zhang v Ministry of Economic Development HC Auckland CRI‑2010‑404‑453, 17 March 2011; Solicitor-General v Mohib [2016] NZHC 1908; and Yalomatua v Police [2013] NZHC 530.

^[6] Anufe v Police [2020] NZHC 2396.

^[7] At [31].

^[8] At [35].

^[9] At [41].

^[10] At [43]–[46].

^[11] Zhang v Ministry of Economic Development, above n 5.

^[12] Rahim v R [2018] NZCA 182; Bong v R [2020] NZAC 94; and R v Tang [2019] NZHC 2056.

^[13] Immigration Act 2009, s 161(1)(a)(iii).

^[14] Immigration Act, s 161(2).

^[15] See Sok v R [2021] NZCA 252, which was argued in the same sitting as this application for leave.

^[16] Rahim v R, above n 12. See also Bong v R, above n 12; Jeon v Police [2014] NZHC 66; and Kumar v Police [2015] NZHC 3293.

^[17] Kumar v Police, above n 16, at [26] and [29]. See also for example Rahim v R, above n 12, at [14]; and Jeon v Police, above n 16, at [4] and [12], both involving personal mitigating factors such as remorse.

^[18] This approach was adopted in Sok v R, above n 15, at [47]; Zhang v Ministry of Economic Development, above n 5, at [24]–[25]; and Foox v R [1999] NZCA 281; [2000] 1 NZLR 641 (CA) at [39].

^[19] See the discussion in Sok v R, above n 15, at [49]. See also Clarabal v Police [2020] NZHC 1518 at [17]; and Zhang v Ministry of Economic Development, above n 5, at [14].