George v Police [2014] NZHC 1725 (23 July 2014)

Last Updated: 8 August 2014

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2014-419-27 [2014] NZHC 1725

BETWEEN	DENNIS GEORGE Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	22 July 2014
Counsel:	T Sutcliffe for Appellant TV Clark for Respondent
Judgment:	23 July 2014

_{JUDGMENT OF BREWER J}

This judgment was delivered by me on 23 July 2014 at 4:45 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors: Gavin Boot Law (Hamilton) for Appellant

Almao Douch (Hamilton) for Respondent

GEORGE v POLICE [2014] NZHC 1725 [23 July 2014]

Introduction

[1] The appellant appeals a refusal by Judge PR Spiller in the District Court at Hamilton on 7 April 2014 to discharge him without conviction pursuant to s 106 of the Sentencing Act 2002.¹

[2] The appellant was charged on 13 September 2013 with doing an indecent act with intent to offend contrary to s 126 of the Crimes Act 1961. The maximum penalty is a term of imprisonment of two years.

[3] The appellant defended the charge. Judge Spiller heard the evidence on

7 March 2014 and convicted the appellant.² In doing so, he accepted the evidence of the complainant and rejected the evidence of the appellant.

[4] The complainant was a 19 year old girl who had been in New Zealand for about 14 months. The appellant, a man then aged 30, gave her a job at the retail shop which he managed. The complainant gave evidence that some three months after he employed her, the appellant called her into his office. The appellant had his trousers down to his knees and from her description it can be inferred that he was masturbating himself. The complainant, who because of her background and culture was without knowledge or experience of such things, was shocked. Her evidence was that she stayed in the office for about a minute while the appellant masturbated himself, before leaving. She felt bad, shocked and shamed.

[5] The appellant’s evidence was to the effect that there had been a misunderstanding. He said that he had opened the zip of his trousers to tend to a broken pimple on his penis when the complainant came into his office without invitation.

[6] On sentencing, the District Court Judge found the gravity of the offending was not at the lowest level. The Judge took note of the victim impact statement in which the complainant said that she was emotionally devastated after this incident

_{and found it very difficult to cope with the stress. She had left her job at the store}

¹ _{Police v George DC Hamilton CRI-2013-019-4736, 7 April 2014.}

² Police v George DC Hamilton CRI-2013-019-4736, 7 March 2014.

and was having difficulty in her second job. She wanted the appellant to be held accountable for his actions and opposed a discharge without conviction.

[7] The District Court Judge made brief reference to the consequences for the appellant of a conviction. The only one he mentioned specifically was that “there could be issues for you in relation to Immigration New Zealand”.³

[8] However, his Honour concluded:⁴

I think it is up to Immigration New Zealand to obtain all the relevant material that they can, and should, to make an informed decision.

[9] The District Court Judge decided that the direct and indirect consequences of a conviction would not be out of all proportion to the gravity of the offence, entered a conviction and directed the appellant to pay reparation of $400 to the complainant.

Further evidence

[10] At the outset, Mr Sutcliffe sought leave to admit further evidence. This took the form of an affidavit of the appellant⁵ and a further affidavit of an immigration consultant, Anthony Edward Callaghan.⁶

[11] The respondent did not oppose the application. For my part, being aware of the issues in this appeal, I was not inclined to refuse to consider affidavits which are relevant to the appellant’s case on the ground they could have been put before the sentencing Judge. I granted the application.

Grounds of appeal

[12] The grounds of appeal focus on the decision of the District Court Judge. However, due to the admission of the new affidavit evidence, I must regard this as a

_{new hearing rather than as an appeal against the Judge’s findings.}

³ _{Police v George, above n 1, at [7].}

⁴ _{At [7].}

⁵ _{Affidavit of Dennis George in support of appeal against sentence, sworn on 2 July 2014.}

⁶ Affidavit of Anthony Edward Callaghan, sworn on 14 July 2014.

[13] The issue for me is the weight to place on the consequences of conviction asserted by the appellant:

(a) The entering of a conviction would most likely lead to his deportation from New Zealand; and

(b) Deportation would likely have a severe financial effect on his parents as guarantors of his student loan.

The law

[14] A Court has a discretion to discharge an offender without conviction under s 106 of the Sentencing Act 2002 (the Act). However, before the Judge can turn his or her mind to this discretionary exercise he or she must be satisfied that the test under s 107 of the Act is met:

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.

[15] It is clear that although the heading of the section refers to “guidance”, the

section gives a mandatory direction.

[16] In recent years there have been two decisions of the Court of Appeal dealing with the interrelationship between ss 106 and 107.⁷ There are some differences between the approaches taken by the Court in those cases. The differences did not affect outcomes but they made it a little difficult to formulate a coherent conceptual approach. Recently, however, the Court of Appeal has addressed those differences.⁸

Arnold J, in giving the judgment of the Court, approaches the test under s 107 of the

Act as follows:⁹

... when considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender; the court should then identify the direct and indirect consequences

⁷ _{R v Hughes [2009] 3 NZLR 222 (CA); Blythe v R [2011] 2 NZLR 620 (CA).}

⁸ _{Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142.}

⁹ At [27].

of conviction for the offender and consider whether those consequences are out of all proportion to the gravity of the offence; if the court determines that they are out of all proportion, it must still consider whether it should exercise its residual discretion to grant a discharge ...

[17] The s 107 exercise requires an appellate Judge to come to a view of the merits under general appeal principles.¹⁰ If the Court is satisfied that the s 107 threshold is met, it must then consider the exercise of the discretionary power to discharge under s 106. It is, of course, logical that an outcome favourable to the offender in the s 107 exercise will lead generally to a favourable outcome for the offender under the s 106 discretion.

The s 107 test

Gravity of the offending

[18] I turn, first, to identifying the gravity of the offence considering all the aggravating and mitigating factors relating to the offending and the offender.

[19] The offending is not at the lowest end of the range:¹¹

(a) It was planned (the appellant, with his trousers already lowered, called the complainant into his office).

(b) The indecent act was overtly sexual.

(c) The complainant was young and vulnerable, and was known by the appellant to be young and vulnerable. Her shock and dismay, particularly given her cultural background, were entirely predictable.

_{The appellant was a man of 30.}

¹⁰ Austin, Nichols & Co Ltd v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141. In addition, I have to consider the new affidavits.

¹¹ I suspect that the very merciful sentence imposed by the District Court Judge was a response to the potential consequences of conviction identified by the appellant. It could not have been a response to the level of offending by itself.

(d) The offending was not momentary.¹² It lasted about a minute, until the complainant recovered from her shock sufficiently to leave the appellant’s office.

(e) The effect of the offending on the complainant was significant. She lost her job at the store (Mr Sutcliffe told me the appellant has kept his job) and has struggled with her new job. Emotionally, she has also suffered – particularly since she is isolated from her family which remains in India.

(f) The offending was a breach of trust. The appellant was the

complainant’s employer.

[20] So far as the appellant is concerned, the main mitigating factor is his previous good character. He has no prior record of offending and he has some impressive personal achievements. He gained an MBA in India before coming to New Zealand in February 2009 to attend Waikato University. He completed a Masters Degree in Management there in 2010. The appellant gained employment and, on 15 December

2011, became manager of the store in which the offending took place. His salary was $40,000 per annum.

[21] On the other hand, there is no allowance to be made for remorse. The appellant did not admit the offending and was convicted following trial.¹³

[22] There is no evidence that the appellant has dependents in New Zealand. [23] I assess the gravity of the offending for this charge as moderate.

Consequences

_{[24] I turn now to identify the direct and indirect consequences of conviction.}

¹² _{Section 126 can, for example, apply to a “flashing”, a momentary exposure of the genitals.}

¹³ Mr Sutcliffe acknowledged that text messages sent by the appellant to the complainant and to her relatives, before he was charged, apologising and offering money should be seen in the light of trying to “apologise out of trouble”.

[25] The appellant, first, points to his jeopardy of being deported from

New Zealand if a conviction is entered.

[26] The appellant provided the District Court Judge with an affidavit of Mr AE Callaghan, a specialist in immigration law, for the purposes of his sentencing.¹⁴ Mr Callaghan has acted for the appellant on his immigration matters since 29 October 2013.

[27] Mr Callaghan deposed that the appellant has a work visa valid until

13 February 2015. He lodged an application for residence on 11 April 2013. This application has yet to be determined.

[28] As to the effect on the appellant’s application for residence of a conviction, Mr Callaghan deposed that it would severely compromise the chances of it being successful:¹⁵

... pursuant to instruction A5.25d of the INZ Operational Manual, any applicant convicted of an offence of a sexual nature falls within the class of persons normally ineligible for a residence class visa unless granted a character waiver.

Mr Callaghan’s view was that the appellant would be unlikely to secure a character waiver.

[29] Mr Callaghan went on to depose:¹⁶

Of even more significance is the fact that a conviction would most likely result in Mr George being issued with a Deportation Liability Notice (‘DLN’) for cause pursuant to instruction D2.15.15 bii of the INZ Operational Manual and section 157 of the Immigration Act 2009.

[30] According to Mr Callaghan, the issue of a Deportation Liability Notice would mean that the appellant would have to leave New Zealand within 14 days to avoid being deported. This, in turn, might well be fatal to his application for residence since the prerequisite is current skilled employment or an offer of skilled

_employment.

¹⁴ _{Affidavit of Anthony Edward Callaghan, sworn on 19 March 2014.}

¹⁵ _{At [10].}

¹⁶ At [12].

[31] Mr Callaghan’s further affidavit elaborates. He gives background to his opinion that a conviction would almost certainly result in the appellant being refused a character waiver as part of the residence application process. Mr Callaghan also expands on the situation regarding the issue of a Deportation Liability Notice:¹⁷

4.0 More importantly it is my view that the Appellant may well be forced to leave New Zealand before his residence case officer even gets around to conducting the character waiver process. This is because if the conviction is not successfully appealed the INZ compliance team would be likely to issue him with a Deportation Liability Notice (DLN) for criminal offending. He would then have fifteen days in which to provide a response to the INZ compliance team and if the DLN was not cancelled the only way he could avoid being deported would be to appeal to the Immigration and Protection Tribunal (IPT) on humanitarian grounds within twenty eight days of the DLN being issued.

5.0 For an IPT appeal to be successful, the Appellant would have to show that his case presents as presenting “exceptional circumstances of a humanitarian nature which would make it unjust or unduly harsh to force him to be removed from New Zealand”. It is my view that the circumstances of the Appellant’s case would not meet the IPT threshold so he would effectively be forced to leave New Zealand within twenty eight days of the DLN being issued to avoid deportation.

[32] Finally, I note that Mr Callaghan deposes that he has informed Immigration

New Zealand of the conviction and that an appeal is in progress.

[33] Ms Clark for the respondent accepts that a conviction will have an effect on the appellant’s immigration status. She provided me with a copy of the provisions of Immigration New Zealand’s Operational Manual referred to by Mr Callaghan in his first affidavit. A5.25 reads, relevantly:

Applicants who will not normally be granted a residence class visa, unless granted a character waiver (see A5.25.1(b) below), include any person who has been:

...

d. convicted at any time of any offence of a sexual nature; ...

_{[34] A5.25.1 provides, relevantly:}

¹⁷ Affidavit of Anthony Edward Callaghan, above n 6.

a. An immigration officer must not automatically decline residence class visa applications on character grounds.

b. An immigration officer must consider the surrounding circumstances of the application to decide whether or not they are compelling enough to justify waiving the good character requirement. The circumstances include but are not limited to the following factors as appropriate:

1. if applicable, the seriousness of the offence (generally indicated by the term of imprisonment or size of the fine);

ii. whether there is more than one offence;

...

iv. how long ago the relevant event occurred;

5. whether the applicant has any immediate family lawfully and permanently in New Zealand;

6. whether the applicant has some strong emotional or physical tie to New Zealand;

vii. whether the applicant’s potential contribution to

New Zealand will be significant.

[35] Ms Clark’s submission is that the role of Immigration New Zealand is to decide, in accordance with and subject to the provisions of the Immigration Act

2009, whether a person should be allowed to enter or remain in New Zealand. If the appellant is convicted of this offence then it is clear that he will be placed in a category of person who will not normally be granted a residence class visa unless granted a character waiver. However, the denial of a character waiver because of conviction is not automatic and an immigration officer must consider the surrounding circumstances. In the appellant’s case, the seriousness of the offence would be a major factor. In his favour is the very light sentence he received. Of course, the other factors quoted above might or might not be in his favour.

[36] Ms Clark’s submission is that the Court should not discharge without conviction for the purpose of preventing Immigration New Zealand from exercising its function.

[37] As to the liability to be deported, Ms Clark makes the point that such liability arises upon proof of criminal offending, not upon proof of criminal conviction. Section 157 of the Immigration Act 2009 provides, relevantly:

157 Deportation liability of temporary entry class visa holder for cause

(1) A temporary entry class visa holder is liable for deportation if the Minister determines that there is sufficient reason to deport the temporary entry class visa holder.

(2) The person has 14 days from the date of service of the deportation liability notice to give good reason why deportation should not proceed.

...

(4) A temporary visa holder or interim visa holder who is liable for deportation under this section may, not later than 28 days after the date of service of a deportation liability notice, appeal to the Tribunal on humanitarian grounds against his or her liability for deportation.

(5) For the purposes of subsection (1), sufficient reason includes, but is not limited to,—

(a) breach of conditions of the person’s visa:

(b) criminal offending:

(c) other matters relating to character:

(d) concealment of relevant information in relation to the

person’s application for a visa:

(e) a situation where the person’s circumstances no longer meet

the rules or criteria under which the visa was granted.

[38] The provision of the Operational Manual referred to by Mr Callaghan in his first affidavit mirrors (unsurprisingly) the s 157 provisions.

[39] The second consequence asserted by the appellant was not before the District Court Judge. It is set out in the appellant’s affidavit admitted before me as additional evidence. In it, he deposes:¹⁸

8.0 My family is regarded as middle class in India. They own small parcel of land less than 10 acres on which my father grows coconuts and rubber plants. The middle class in India is not directly comparable to the middle class in New Zealand. My family are

¹⁸ Affidavit of Dennis George in support of appeal against sentence, above n 5.

subsistence farmers. Whereas farmers in NZ are regarded as well off in India it is quite different.

9.0 To fund my education in New Zealand I took out an education loan for $25,000 but my father had to go guarantor for the loan which is now secured against the farm. I am still paying that back and I still owe more than $10,000. I have been able to reduce the loan because of the work I have secured in NZ. If I was in India I would not be able to repay the loan. If I was forced to give up my job and return to India it would cause a great deal of difficulty for my family. I would not be able to repay the loan and the lender would force the sale of the farm. As a result I am concerned that my family may lose the farm.

10.0 I have two brothers, one India who is studying and one in the UK who is also studying and my parents are also guarantors for loans taken out to allow them to study. Accordingly financially things are very tight for my family.

[40] Ms Clark’s submission is that the risk to the appellant’s family if the appellant were deported was known to the appellant at the time of his offending. The appellant took that risk and now asks the Court to protect him from its consequences. In Ms Clark’s submission, the Court should not do that.

[41] I do not accept that submission. Whether or not a consequence of offending was foreseen or foreseeable by the offender is not a criterion relevant to my consideration of the s 107 test. I accept Mr Sutcliffe’s submission that there is a statutory test and I must confine myself to its application. That test requires me to identify consequences and to consider them against the gravity of the offending. The consequences of criminal offending are foreseeable in most cases. For example, a drunk driver can foresee that being caught will have the consequence of loss of licence. Section 107 requires a Judge to assess the consequences themselves, not whether the offender deliberately courted them, recklessly incurred them, or negligently failed to take them into account when committing the offence.

Assessment of the consequences

[42] Turning, first, to the appellant’s immigration status, I accept that the entry of a conviction might well mean that the appellant will be unable to remain in New Zealand. Mr Callaghan’s affidavits are unchallenged and his opinions are those of an experienced advisor on immigration matters.

[43] If the appellant were to be deported then that would have a great impact on his life. He has been in New Zealand for more than six years and he has secured good employment. Returning to India would certainly be a step backwards for him.

[44] However, Immigration New Zealand is already aware of the appellant’s criminal offending. He can already be considered for deportation, although I accept Mr Callaghan’s opinion that Immigration New Zealand is unlikely to move against the appellant unless a conviction is entered.

[45] So, the point becomes whether this Court should decide not to enter a conviction for proved criminal offending because it has the view that Immigration New Zealand might well exercise its powers and discretions in a way which the Court, holistically, would disagree with. I think the answer to that is self-evident. Parliament has enacted the laws which regulate whether a person should be permitted to come to New Zealand or remain in New Zealand. So far as character waiver is concerned, the immigration officer who would consider the appellant’s case is required to take into account all the factors relevant to the appellant’s character. So far as deportation liability is concerned, again there is a discretion to be exercised in accordance with the principles of natural justice, and there is a right of appeal on humanitarian grounds.

[46] I do not hold that the risk of deportation is a factor that the Court should never take into account in deciding the s 107 proportionality test. The section does not exclude effect on immigration status from consideration as a consequence. There will be situations where even the consequence of subjecting an offender to the scrutiny of Immigration New Zealand would be undue. But, in the usual run of cases, the Court should not take it upon itself to, in effect, decide immigration status.

[47] I note that other Judges have taken similar approaches. The Court of Appeal quite recently considered a case which included immigration status as a factor in

_{assessing consequences.}¹⁹ _{The offence was conspiracy to commit incest. Pleas of}

¹⁹ A (CA747/10) v R [2011] NZCA 328.

guilty had been entered and the penalty was an order to come up for sentence in

12 months if called upon. In declining the appeal, the Court said:²⁰

Given the seriousness of the departure from community standards involved in this offending, we consider it appropriate for the relevant registration bodies, employers and the Immigration Service to be able to decide for themselves the effect the convictions should have. We do not think it appropriate for the Court to usurp the role of those bodies in this case.

[48] So far as the situation of the appellant’s family in India is concerned, I take the view that although there is a risk that there will be significant financial consequences for them if the appellant is deported, the risk is too ill-defined for me to give it much weight. The loan guaranteed by the appellant’s family for his education in New Zealand was originally $25,000. It has been reduced now to around $10,000. There is no evidence that if the appellant were to return to India he could not secure employment which would be sufficient to enable him to carry the burden of the remaining portion of the debt. After all, he now has a Masters Degree in Management from a New Zealand university and significant managerial experience. No doubt his ability to speak English has also improved.

Proportionality

[49] The gravity of the offending is moderate. It is offending of a sexual nature. It is rare that sexual offending will warrant a discharge.²¹

[50] The consequences of a conviction being entered are, I assess:

(a) He would be subject to the scrutiny of Immigration New Zealand.

_{That scrutiny would entail a consideration of the appellant’s character}

²⁰ At [30]. See also R v Foox [2000] 1 NZLR 641 (CA) at [39]; R v Rollo CA1/04, 8 October

_{2004; Yalomatua v Police [2013] NZHC 530 at [28].}

²¹ The cases cited by the appellant’s counsel where discharges were granted are very different. In R v S HC Auckland CRI-2006-044-6244, 22 April 2008, the offending was many years before and was in the context of the offender also being offended against himself at the same time while he and his victim were both young people at the Centrepoint Community in Albany. In Huang v Police HC Auckland CRI-2010-404-211, 16 November 2010, the offender was under significant

stress and so masturbated in the Auckland CBD for 45 minutes. The Court found he had

diminished responsibility for his actions and had an important educational fellowship at Auckland University. In BC v Police HC Wellington CRI-2003-485-101, 2 June 2004, the offender had participated in consensual oral sex when he was 17 and the victim was 14. The Court held the offending was consensual, there was no breach of trust and there were going to be severe issues with travel, employment and mental health for the offender if convicted.

and other factors going to whether, in accordance with New Zealand’s

immigration law, he should be allowed to remain in New Zealand.

(b) If the appellant were deported from New Zealand, there is a risk that his family would face financial hardship.

[51] I cannot hold that these consequences are out of all proportion to the gravity of the offending. They would be hard consequences, if realised, but in the context of the appellant being a person not currently entitled to stay permanently in New Zealand, and without dependents here, they would not be out of all proportion to the offending proved against him.

Decision

_{[52] The appeal is dismissed.}

Brewer J