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High Court of New Zealand Decisions |
Last Updated: 2 April 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2011-404-00415 [2012] NZHC428
TIAGO DE ANDRADE
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 13 March 2012
Counsel: M Hislop for the Appellant
B Hamlin for the Respondent
Judgment: 15 March 2012
RESERVED JUDGMENT OF WYLIE J
This judgment was delivered by me on 15 March 2012 at 12 noon, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors: Crown Solicitors, PO Box 2213, Auckland 1140
Counsel: M Hislop, PO Box 210, Auckland 1140
ANDRADE V POLICE HC AK CRI-2011-404-00415 [15 March 2012]
[1] On 18 October 2011, the appellant, Mr Andrade, was found guilty by Justices of the Peace of one charge of carelessly operating a motor vehicle under s 137 of the Land Transport Act 1998.
[2] The Justices of the Peace did not immediately convict Mr Andrade. Rather, they proceeded to hear submissions on the appropriate sentence to impose. Mr Andrade, through his counsel, requested that the Justices of the Peace should adjourn so that written submissions in support of an application under s 106 of the Sentencing Act 2002 could be filed. The application for an adjournment was denied. Mr Andrade was then convicted and fined $500. In addition, he was ordered to pay Court costs of $132.89 and witness expenses of $25.
[3] Mr Andrade has filed a notice of appeal. The notice of appeal was filed in this Court on 20 December 2011. It is expressed to be a notice of appeal against sentence only. In reality, Mr Andrade is appealing against the refusal to grant a discharge without conviction. I have therefore treated the notice of appeal as an appeal against conviction and sentence.
Relevant facts
[4] On 1 October 2010, Mr Andrade was backing his Toyota Hiace van out of his driveway and onto Dominion Road in Auckland. The complainant was travelling along Dominion Road in her wheelchair. Mr Andrade did not see the complainant. He backed the van into the wheelchair, and pushed the complainant and her wheelchair into the bus lane on Dominion Road. Mr Andrade did not stop. Rather, he drove off.
Decision made by the Justices of the Peace
[5] The Justices of the Peace recorded that they had listened carefully to the evidence. They noted that there was no dispute as to the time, or the identity of the parties concerned. They referred to the evidence of the complainant, and noted that under cross-examination, her evidence was unshakable. They observed that Mr Andrade had chosen not to give evidence, but recorded that this did not prejudice
his defence. They referred to a statement that Mr Andrade gave to the police when he was interviewed. In that statement, Mr Andrade stated that, in his view, the complainant was at fault, because she failed to stop and hit his van. They also referred to evidence given by Mr Andrade’s wife.
[6] The Justices of the Peace considered that there were matters of credibility which they had to weigh. They found that the evidence of the complainant was clear, and that she was unshakable under cross-examination. They noted that Mr Andrade’s wife only had a view of the driveway from the window of a dwelling at the end of the drive. On matters of credibility, they preferred the evidence of the complainant.
[7] The Justices of the Peace considered that Mr Andrade’s actions were not those of a prudent driver under the circumstances. They noted that reversing is a manoeuvre requiring a high standard of care, and that a collision did take place. They noted that Mr Andrade, in his statement to the police, had stated that he could not see over the fence and the trees as he reversed out. They considered that a wheelchair would offer a low profile, and that this would not help Mr Andrade’s visibility. Nevertheless, they considered it was his responsibility as the driver, to take care, and found the case proven against him.
[8] In sentencing, they referred to an assertion made by counsel for Mr Andrade that a conviction might affect “his citizenship” and also his right of access to certain foreign countries. They did not adjourn to receive further submissions on this point. Rather they referred to other submissions from Mr Andrade’s counsel and imposed the fine and monetary penalties noted above. They noted that the penalty was very much at the moderate end of the scale, and recorded that the Court could have imposed a more significant penalty because a collision did take place. They also recorded that they were aware that in any review in a citizenship matter, the authorities might take into account the amount of the penalty.
Submissions
[9] The parties were agreed that I should treat the appeal as being against conviction and sentence. Neither wanted me to remit the matter back to the District Court,1 as both preferred that I should deal with it myself.
[10] Mr Hislop for Mr Andrade was not concerned with the fine and the costs orders made by the Justices of the Peace. He accepted that they were not manifestly excessive. Rather he was concerned that a conviction had been entered against Mr Andrade. He submitted that Mr Andrade should have been discharged without conviction, because the consequences of entering a conviction against him were disproportionately severe given the offending in issue.
[11] I record that Mr Hislop initially submitted that the Justices of the Peace erred in law, and that they breached s 25(a) of the New Zealand Bill of Rights Act 1990 when they refused an adjournment to enable submissions to be presented in relation to the effect on Mr Andrade’s right to apply for citizenship in this country if a conviction were to be entered against him. In the course of argument, Mr Hislop accepted that any breach by the Justices of the Peace is cured if I consider that issue in the course of hearing this appeal. He did not require me to further address the issue.
[12] An affidavit has been filed by Mr Andrade. He advises that he was born in
Brazil, but that he has been living in New Zealand as a permanent resident since
2005. He states that he has been eligible to apply for New Zealand citizenship since May 2011, but that he was only able to apply for citizenship in October 2011 as he needed his passport for a family reunion in Brazil between September and October
2011. Mr Andrade records that Mr Hislop requested that a sentence should be adjourned so they could file written submissions as to the effect a conviction might have on his eligibility to apply for New Zealand citizenship. He notes that the Justices of the Peace declined that application and fined him $500 as noted above.
He annexes to his affidavit an email communication he has received from the
1 This option was available pursuant to s 131(1) of the Summary Proceedings Act 1957.
Department of Internal Affairs, which advises that any conviction that does not have a prison sentence will incur a three year stand down period before citizenship can be applied for.
[13] Mr Hamlin for the Crown submitted that I must assess for myself whether or not the test for a discharge without conviction under s 107 has been met by Mr Andrade. He acknowledged that if I am satisfied that the test is met, then it is likely the discretion in s 106 should be exercised in favour of Mr Andrade, and that the appeal should be allowed. However, he went on to submit that the test under s 107 is not met. He acknowledged that the offending is minor, but submitted that the consequences for Mr Andrade are also minor.
Analysis
[14] This is an appeal under s 115 of the Summary Proceedings Act 1957. The
Court’s powers are detailed in s 121. Relevantly it provides as follows:
(2) In the case of an appeal against conviction, the High Court may—
(a) Confirm the conviction; or
(b) Set it aside; or
(c) Amend it and, if the Court thinks fit, quash the sentence imposed and either impose any sentence (whether more or less severe) that the convicting Court could have imposed on the conviction as so amended, or deal with the offender in any other way that the convicting Court could have dealt with him on the conviction as so amended.
(3) In the case of an appeal against sentence, the High Court may—
(a) Confirm the sentence; or
(b) If the sentence (either in whole or in part) is one which the Court imposing it had no jurisdiction to impose, or is one which is clearly excessive or inadequate or inappropriate, or if the [High Court] is satisfied that substantial facts relating to the offence or to the offender's character or personal history were not before the Court imposing sentence, or that those facts were not substantially as placed before or found by that Court, either—
(i) quash the sentence and either pass such other sentence warranted in law (whether more or less severe) in substitution therefore as the [High Court] thinks ought to
have been passed or deal with the offender in any other way that the Court imposing sentence could have dealt with him on the conviction; or
(ii) Quash any invalid part of the sentence that is severable from the residue; or
(iii) Vary, within the limits warranted in law, the sentence or any part of it or any condition imposed in it.
(emphasis added)
[15] As can be seen, there is ample power available to me to assess whether the conviction should or should not have been entered against Mr Andrade, and to make the appropriate order if I consider that a discharge without conviction is appropriate.
[16] Section 106 of the Sentencing Act 2002 permits the Court to discharge an offender without conviction. Section 106(1) and (2) 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 any enactment applicable to the offence the court is required to impose a minimum sentence.
(2) A discharge under this section is deemed to be an acquittal.
[17] It is common ground that the enactment in question in this case – the Land Transport Act 1998 – does not impose a minimum sentence. Rather it provides that the maximum penalty available in relation to the charge here in issue is a $3000 fine.2
[18] Section 107 of the Sentencing Act 2002 provides guidance on the application of s 106. It provides as follows:
107 Guidance for discharge without conviction
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
2 Land Transport Act 1998, s 137.
[19] In R v Hughes, the Court of Appeal confirmed that s 107 has not altered the common law relevant to a discharge without conviction.3 The Court considered that s 107 adopts a “disproportionality” test, which is a gateway or precondition to the exercise of the discretion to discharge under s 106.4 It approved the continuing relevance of the following passage from the judgment of Richardson J in Fisheries Inspector v Turner,5 where it was stated as follows:6
In considering the exercise of the discretion under s 42 the Court is required to balance all the relevant public interest consideration as they apply in the particular case: or, as s 42(1) puts it, ‘after inquiry into the circumstances of the case’, which must refer to all the circumstances that are relevant in the particular case before the Court. It must have due regard to the nature of the offence and to the gravity with which it is reviewed by Parliament; to the seriousness of the particular offending; to the circumstances of the particular offender in terms of the effect on his career, his pocket, his reputation and any civil disabilities consequential on conviction; and to any other relevant circumstances. And if the direct and indirect consequences of a conviction are, in the Court’s judgment, out of all proportion to the gravity of the offence, it is proper for a discharge to be given.
[20] More recently the Court of Appeal in Blythe v R7 modified the approach adopted in Hughes, but reaffirmed that the three-step test from Turner is a helpful and practical way of applying the “out of all proportion” test for discharging an offender.8
[21] A decision under s 107 of the Act is “a matter of fact requiring judicial assessment” and not the exercise of discretion.9 It is for me to assess whether I am satisfied that the test under s 107 has been met. If I am satisfied that the test has been met, then I have to go on to consider whether or not Mr Andrade should be discharged without conviction under s 106.
[22] First I consider the gravity of the offending by reference to the particular facts involved in this case.
3 R v Hughes [2008] NZCA 546;[2009] 3 NZLR 222 at [22].
4 Ibid, at [8].
5 Fisheries Inspector v Turner [1978] 2NZLR 233 (CA).
6 Ibid, at 241-242.
7 Blythe v R [2011] NZCA 190; [2011] 2 NZLR 620.
8 Ibid, at [11]-[14].
9 R v Hughes above n3, at [11].
[23] Careless use of a motor vehicle would generally be considered to be minor offending.10
[24] There are two aggravating features to the offending in the present case. First there was a collision between Mr Andrade’s car and the complainant’s wheelchair. The complainant was not injured; nor it seems was there any damage to her wheelchair. She was however pushed out into a bus lane on a busy road. Secondly, Mr Andrade carelessness was compounded by his failure to check on the complainant after the accident.
[25] Mr Hamlin asked me to take into account the fact that Mr Andrade does not have a good driving record in New Zealand. I am not prepared to do so in this context. Mr Andrade’s record is not relevant to the offending in issue in this appeal. It is a factor which may be relevant under s 106 if I get to that point.11
[26] Notwithstanding the aggravating features referred to above, I accept that
Mr Andrade’s offending can fairly be described as minor.
[27] The consequences of the conviction for Mr Andrade are set out in his affidavit. These flow from s 9A of the Citizenship Act 1977. Relevantly it provides as follows:
9A Disqualifying convictions
(1) Except as provided in subsection (2), the Minister must not authorise a grant of citizenship under section 8 or section 9 to a person who has been convicted of an offence if —
(a) ... (b) ...
(c) within the preceding 3 years the person was convicted of an offence but did not receive a sentence of imprisonment.
(2) The Minister may however authorise a grant of citizenship to a person to whom subsection (1) applies and who otherwise meets the requirements of section 8 or section 9 if satisfied that there are
11 Blythe v R, above n7, at [12].
exceptional circumstances relating to the conviction such that a grant of citizenship should not be precluded.
(3) ...
[28] In short, Mr Andrade will not be able to apply for citizenship in this country for a period of three years from the date of his conviction unless the Minister is satisfied that there are exceptional circumstances. No additional consequences were advanced by Mr Andrade in his affidavit, or by Mr Hislop in his submissions.
[29] I now turn to consider whether this consequence is out of all proportion to the gravity of the offending.
[30] Mr Andrade has permanent residence in New Zealand. That status brings with it substantial rights and benefits. The conviction does not prevent him living, working, studying, or staying in New Zealand.12 He can travel to this country as of
right. He can take, acquire, hold, or dispose of real and personal property.13
[31] A citizen does have certain rights that are not available to a permanent resident. A citizen has a New Zealand passport. He or she is not required to obtain a visa to visit some foreign countries, e.g. Australia. A citizen is eligible for public office, and he or she can acquire property without consent under the Overseas
Investment Act 2005.14
[32] Here, there are consequences from the entry of the conviction. By way of example, the conviction will appear on Mr Andrade’s criminal and traffic history. In some circumstances it will have to be disclosed. These consequences are common to any person who is convicted of a charge of careless use of a motor vehicle. There is the additional consequence for Mr Andrade because his right to apply for citizenship may be deferred for a period of three years from the date the conviction was entered.
[33] I say “may be deferred” because s 9A(1)(c) of the Citizenship Act 1977 does not of itself preclude Mr Andrade obtaining citizenship. Section 9A(2) provides an
overriding discretion to the Minister. If the conviction remains, it is for the Minister
12 Immigration Act 2009, s 73.
13 Citizenship Act 1977, s 23(1).
14 Citizenship Act 1977, s 23(2).
to determine whether or not there are exceptional circumstances relating to the conviction such that a grant of citizenship should not be precluded. The Court must assume that the Minister will look at the issue rationally and fairly and take into account the nature of the conviction.
[34] As a matter of policy, the Court will generally be reluctant to intervene to, in effect, determine immigration matters other than on their merits. The Court’s reluctance was explained by Asher J in Zhang v Ministry of Economic Development:15
In relation to a conviction affecting an offender’s immigration status, or indeed ability to travel overseas, the courts often conclude that it is appropriate for the consequences of conviction to be resolved by the appropriate authorities, rather than the Court attempting to pre-empt that decision-making process by a decision to discharge without conviction .... There is nothing that requires the courts to intervene to try and impose their perception of what the right immigration consequences should be. That is best left to the immigration authorities. But a Court’s assessment of culpability in the sentencing exercise may assist those authorities. And there will always be occasions where in a finely balanced case a discharge may be warranted on these types of grounds: R v Hemar. The case for discharge may not be so strong where the details of the offending will be known and closely examined by the relevant authority in any event, than where the query will be only as to prior convictions, for instance in an application for professional certification.
[35] In my view, and having considered all of the material put before me, the consequences of the conviction are not out of all proportion to the gravity of the offending. While the offending is minor, in reality the consequences of the conviction are also relatively minor. Mr Andrade retains his rights as a permanent resident in New Zealand and he can still apply for citizenship. If the Minister is not prepared to exercise his discretion in Mr Andrade’s favour, Mr Andrade will be able to apply, in any event, in three years time, providing that he does not incur any
further conviction in the interim.
[36] I am not satisfied that the test in s 107 is met. It is not necessary for me to go
and consider s 106. It follows that the appeal must be dismissed.
Wylie J
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