Vohra v Police [2018] NZHC 3192 (5 December 2018)

Last Updated: 14 January 2019

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2018-425-000030 [2018] NZHC 3192

BETWEEN	MANOJ VOHRA Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	14 November 2018
Appearances:	S G Vidal for Appellant R W Donnelly for Respondent
Judgment:	5 December 2018

JUDGMENT OF DUNNINGHAM J

[1] The appellant, Manoj Vohra, pleaded guilty to one charge of a male assaults female on 28 August 2015. He was sentenced on 18 April 2016. At the time, his lawyer sought that he be convicted and discharged. However, Judge M J Callaghan sentenced Mr Vohra to supervision for a period of nine months. He also issued a protection order in favour of the victim under s 123B Sentencing Act 2002 (the Act) and required Mr Vohra to attend a Stopping Violence programme.

[2] Mr Vohra completed his sentence without breach. However, as a result of his conviction, his temporary work visa was not renewed and he was subsequently served with a deportation liability notice. He now seeks to appeal his conviction and sentence on the grounds that the Judge did not consider whether to deal with the matter by way of discharge without conviction and, in all the circumstances, this is a case which meets the criteria for a discharge.

VOHRA v NEW ZEALAND POLICE [2018] NZHC 3192 [5 December 2018]

[3] The appeal was filed out of time and so leave is required for the Court to consider the appeal. This delay is adequately explained by the fact that Mr Vohra first filed his own appeal in the High Court. When counsel was appointed, an issue arose over which Court was the appropriate first appeal Court. An appeal was lodged in the Court of Appeal but, on 1 May 2018, the Court of Appeal issued a judgment dismissing Mr Vohra’s appeal for want of jurisdiction and ruling that the High Court was the correct first appeal Court.¹ By that time, his appeal to the High Court had been struck out as no steps had been taken in it. Mr Vohra has actively tried to pursue an appeal as soon as he was aware of the consequences of conviction. No issue is taken by the respondent with leave being granted. Leave is granted to appeal out of time.

[4] Mr Vohra also seeks to introduce evidence which was not before the District Court. It comprises his own affidavit evidence which outlines what has occurred to him post-conviction and evidence from an experienced immigration lawyer as to the effect of the conviction on Mr Vohra’s immigration status. As the evidence is either updating evidence or evidence which should have been before the District Court but was not, it is admitted in the interests of justice.

Background events

[5] Mr Vohra is an Indian national. He married another Indian national on 13 May 2011 and they decided to come to New Zealand. His wife arrived on a student visa, while Mr Vohra came on an open work visa. He has worked in a number of jobs since his arrival.

[6] On 7 October 2014, 11 charges were filed alleging violent offending by Mr Vohra against his wife. On 28 October 2014, he pleaded guilty to one charge of male assaults female, but he pleaded not guilty to the other 10 charges and elected trial by jury. On 18 April 2016, he was acquitted on those 10 charges.

[7] Judge Callaghan sentenced Mr Vohra on the single charge of male assaults female on 18 April 2016. The summary of facts stated that he was having an argument with his wife, when he became angry and smashed the table onto the floor, causing

¹ Vohra v R [2018] NZCA 128.

some damage to a printer. He then slapped his wife on the face. His lawyer sought that he be convicted and discharged, which was opposed by the Crown. It does not appear that a discharge without conviction was sought.

[8] Since sentencing, a number of things have happened. Mr Vohra separated from his wife and has made no attempt to contact her since then. He is now living in Christchurch and is in a new relationship. On 24 August 2017, the protection order was discharged, the Judge being “satisfied that the need for the protection order has passed and there is no need for it to continue”.²

[9] In mid-2016, Mr Vohra applied to renew his essential skills work visa. However, it was declined because Immigration New Zealand held that he did not meet its “good character” requirements due to his conviction.

[10] He submitted a request to Immigration New Zealand to reconsider the decision. However, the decision to decline his work visa was upheld on 9 August 2016. Mr Vohra was served with a deportation order on 17 October 2016, although action on implementing the order is on hold until this appeal is determined. Mr Vohra is living in shared accommodation with friends in Christchurch but is unable to work in the interim.

[11] The Immigration New Zealand compliance officer responsible for issuing the deportation order has agreed to reconsider the deportation order should the Court allow Mr Vohra’s appeal and discharge him without conviction. An immigration lawyer, Mr Robert John Davidson of Christchurch, advises that if the discharge without conviction is granted, a request pursuant to s 61 of the Immigration Act 2009 (the Act) will be lodged with Immigration New Zealand on Mr Vohra’s behalf in an attempt to regularise his immigration status. As he will no longer have an impediment to meeting the “good character” requirements, it is likely he will be issued a further visa.

[12] Put baldly, Mr Vohra will be deported if his conviction stands. If he is discharged without conviction, it is likely, although not inevitable, that the deportation order will be cancelled and his immigration status regularised.

² Decision of Judge Brandts-Giesen in FAM-2016-025-000091 made on 24 August 2017.

Should the conviction be overturned?

[13] Under s 232(2) of the Criminal Procedure Act 2011, I must allow an appeal against conviction if I am satisfied that there has been an error which has resulted in a miscarriage of justice. A miscarriage of justice means “any error, irregularity, or occurrence in or relation to or affecting the trial” that “has created a real risk that the outcome of the trial was affected”.³

[14] Ms Vidal submits that the trial Judge (not the Judge who entered the conviction) considered that a discharge without conviction was not available on the charge as a conviction had already been entered on the record, and she submits that the Court erred in not considering the discharge of the defendant without conviction. She says a sentencing Judge is not precluded from granting a discharge without conviction, even when a conviction has already been entered on the record.⁴

[15] In any event she says that an error of law occurred at the time of entry of the conviction as s 11(1)(a) of the Act provides that, before entering a conviction, the Court must consider whether the matter might more properly be dealt with by way of discharge without conviction. She says there is no indication that such an assessment was completed by the Court at the time the conviction was entered and, in any event, by the time of sentencing there had been a material change in the appellant’s circumstances as he had been acquitted of all other offences.

[16] The respondent did not expressly address this issue, rather its submissions were focused on whether, in any event, a discharge without conviction was available.

Discussion

[17] There is no evidence to support the appellant’s assertion that a discharge without conviction was sought but rejected by the Judge because the conviction had already been entered on taking the plea. Rather, it appears at the time of sentencing, the only option advanced by counsel for the appellant was a conviction and discharge.⁵

³ Criminal Procedure Act 2011, s 232(4).

⁴ Banerjee v Police [2018] NZHC 2446 at [20] and R v Sarich CA407/04, 16 May 2005 at [30].

⁵ Under s 108 of the Act.

It seems that counsel for Mr Vohra never averted to the risk of deportation on conviction, and, as a result, nothing was brought to the Judge’s attention that would lead him to consider that a discharge without conviction was an available option.

[18] However, as was said in Jackson v R, there is a principled basis for determining an appeal against a discharge without conviction where it can be established that a miscarriage of justice has occurred by virtue of a material error by the sentencing Judge in entering a conviction.⁶ Alternatively, it can be said that a miscarriage of justice has occurred “for any reason” if the Judge has erred in applying the principles found in s 107 of the Act for discharging an offender without conviction.

[19] In this case, I consider that had Mr Vohra been made aware of the potential consequences of a conviction, he would have either:

(a) pleaded not guilty to the charge and contested it as for the other charges which he successfully defended; or

(b) actively sought a discharge without conviction and provided supporting evidence in the District Court as he has done now.

Had he done so, there is a real possibility that there would have been a different outcome. For these reasons, I consider there has been a potential miscarriage of justice and, therefore, there are grounds for considering the appeal against conviction.

Discharge without conviction

[20] The jurisdiction to discharge an offender without conviction is governed by s 107 of the Act. It provides:

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.

6. Criminal Procedure Act 2011, s 232(2)(b) or (c); and Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [12].

[21] That section requires a three step process to be followed where the steps are:⁷

(a) identification of the gravity of the particular offence, taking into account all aggravating and mitigating factors of the offending and the offender;

(b) identification of direct and indirect consequences of conviction; and

(c) a determination of whether those consequences are “out of all proportion” to the gravity of the offence.

[22] Only if that threshold is met can the Court move to consider the residual discretion under s 106.⁸ There must be a “real and appreciable” risk that any given consequence will happen.⁹

Gravity of Mr Vohra’s offending

Appellant’s submission

[23] Ms Vidal says that the assault to which Mr Vohra pleaded guilty consisted of an open palm slap to the complainant’s face with no resulting injury. At the time he was facing other charges which he had entered not guilty pleas to, so he was not considered for diversion.

[24] Ms Vidal also says that at the time the assault occurred, Mr Vohra was in a situation of heightened emotional distress. He had foregone his plans to study in the UK, in order to marry the complainant, travel to New Zealand and support her while she completed her studies in New Zealand. His evidence is that, upon completion of her studies, she told the appellant she did not love him and did not want to have his children. This context goes some way to explaining why the offending occurred. Furthermore, the sentence of supervision which was imposed reflects the fact that the assault fell at the lower end of the scale.

⁷ A (CA747/2010) v R [2011] NZCA 328 at [22].

⁸ Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27].

⁹ DC (CA47/2013) v R [2013] NZCA 255 at [43].

[25] In terms of mitigating features of the offender, Ms Vidal points to the fact he took responsibility for his offending by entering a guilty plea to the charge at the first opportunity and he completed his sentence, including the Stopping Violence programme, without issue. There has been no further offending by the appellant, nor any breach of the protection order that the Court granted in the victim’s favour. Indeed, the Court saw fit to discharge the protection order given the dissipation of risk to the victim.

[26] Finally, although Mr Vohra has been unable to partake in paid employment since his visa expired, he has continued to contribute to the Christchurch community through his involvement in voluntary work. Ms Vidal provided a number of references to the Court which outline Mr Vohra’s participation in church and community service activities. They speak highly of his commitment to serving others and making the most of the opportunities he has. The adjectives used to describe him are unerringly positive, including saying he is “respectful”, “thoughtful”, “sincere”, “helpful”, “cheerful”, “reliable” and “caring”. Some letters expressed surprise that he had been involved in violence and speak of his obvious shame and regret for the incident which occurred.

[27] Given the low level of violence involved, the precipitating circumstances and Mr Vohra’s positive steps to achieve rehabilitation, Ms Vidal submits that the gravity of the offending is low.

Respondent’s submissions

[28] The respondent accepts that the offending was at the lower end of seriousness for offending of this type, but nevertheless emphasises it was a form of domestic violence. Domestic violence in any form has been condemned by the Court of Appeal in Solicitor-General v Hutchinson, where it was noted that violence occurring in the complainant’s home will normally be an aggravating factor for sentencing purposes.¹⁰ This is because such violence involves “inherent vulnerability” because one “cannot realistically or effectively lock the door against a co-occupant”.¹¹

¹⁰ Solicitor-General v Hutchinson [2018] NZCA 162 at [26].

¹¹ At [27].

[29] In this case, the offending had many of the hallmarks of such offending. It occurred in the victim’s home, it involved a breach of the inherent trust in the relationship between husband and wife, she was vulnerable as a consequence of the fact she was in her home alone with the appellant, and the catalyst for the assault was the common stresses of family and domestic life. In short, the respondent submits the offending was more serious than is contended for by the appellant.

Discussion

[30] I accept the respondent’s submission that no form of family violence should be treated as of little moment. While this offending, constituting a slap on the face, was at the lower end of the spectrum of family violence, it cannot be dismissed as trivial offending.

[31] However, the gravity of the offending must take into account all aggravating and mitigating factors relating to both the offender and the offending. In this case, I have evidence from Mr Vohra about the history of their marriage. Both Mr Vohra and his wife were young when they married and the marriage was not positively received by either of their families. They came to New Zealand where they had no real support. Mr Vohra worked in a variety of jobs, including doing security work while his wife completed her studies. He was and remains significantly in debt because he borrowed from a family member to assist with paying for his wife’s studies. All these factors, in my view, give some context to the offending and the stresses which provoked it.

[32] Furthermore, there is a wealth of evidence to support the conclusion that Mr Vohra has addressed the causes of his offending and is trying to lead a productive and positive life when he contributes to the wellbeing of others. This does, in my view, ameliorate the gravity of the offending and I assess it as low.

Identification of the direct and indirect consequences of a conviction

Appellant’s submissions

[33] As already explained, the appellant’s work permit was not renewed as a consequence of his conviction and he was served with a deportation notice. That
deportation notice has been put on hold by the Associate Minister of Immigration, but solely for the purpose of the appellant advancing his appeal against conviction. Ms Vidal says that, should Mr Vohra not be granted a discharge without conviction, his liability for deportation would resume. She points out that the conviction is the only character issue that the appellant has which affects his immigration status.

[34] Furthermore, an additional, albeit indirect, consequence of his conviction is that he has been unable to enter paid employment for more than 18 months, as he has no work visa. If his conviction remains and he is deported from New Zealand he will also have significant difficulty obtaining visas for other Commonwealth countries as the fact of deportation from one country will weigh heavily against entry to another. In addition, Mr Vohra is now in a committed relationship with a new partner in New Zealand. If he is required to leave, that relationship will be put to an end, or alternatively, his partner will have to forego her desire to settle in New Zealand. Ms Vidal submits that the combination of these factors mean that the consequences of the conviction are out of all proportion to the gravity of the offending.

Respondent’s submissions

[35] The respondent accepts there are consequences for the appellant over and above those which a defendant would ordinarily suffer. However, it says that the conviction itself was not a total blockade to obtaining a visa and did not necessarily mandate the outcome. The respondent acknowledges that the appellant has now had his application for a visa declined and will be deported unless his appeal is successful. However, it notes that success on appeal does not necessarily mean that deportation will be averted. The respondent points out that the appellant’s liability for deportation is not a direct consequence of his conviction, but is because he has remained in New Zealand without an appropriate visa and the respondent says this should be taken into account in determining this appeal.

[36] Overall, the Crown submits that the consequence of the offending was the need to notify Immigration Services of the conviction with a reduced likelihood of obtaining a further visa. Such a consequence is not out of all proportion to the overall gravity of the domestic violence offending.

Discussion

[37] The test in s 107 is whether “the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence”. Given the test encompasses indirect consequences, I am satisfied that the deportation notice and all the adverse consequences that flow from it are relevant consequences of the conviction and I can take them into account.

[38] I acknowledge the Crown’s submission that, at the time he was sentenced, deportation was not an inevitable consequence. However, it is well established that a consequence does not need to be inevitable to be taken into account but there must be a “real and appreciable” risk that it will.¹² There can be no doubt that conviction carried a real and appreciable risk of deportation. In this case, however, the position is now more clear cut. I have the benefit of evidence that the adverse consequences which might have been advanced at sentencing have now occurred and Mr Vohra will be deported if he is not granted a discharge.

[39] I also accept that the outcome if he is granted a discharge is not guaranteed. However, as the evidence of Mr Davidson, a specialist immigration lawyer, explains, Mr Vohra has been advised that if the discharge without conviction is granted, consideration will be given to withdrawing or cancelling the deportation order under s 177(1) of the Immigration Act. The need to meet the “good character” requirements of the Immigration New Zealand operational instructions would then be obviated, which is what has rendered him ineligible for a temporary visa.

[40] I also take into account the financial hardship that has been an indirect consequence of conviction, because it has meant that Mr Vohra has been unable to work in New Zealand and has been unable to repay money borrowed from his family. In addition, he has made a new life in New Zealand, converting to Christianity from Hinduism. He is estranged from his family because of his decision to marry a woman from a Sikh family without their blessing. I accept there would be considerable hardship for Mr Vohra if he now had to return to India, leaving behind his current partner and his connections within the church.

¹² DC (CA47/2013) v R, above n 9, at [43].

[41] Having regard to all these factors, I consider the consequences for Mr Vohra have been, and will continue to be, very significant and, in my view, out of all proportion to the gravity of the offending. Mr Vohra has made a new life for himself in New Zealand and that will be destroyed if the conviction remains. That is a clearly disproportionate outcome for offending which he has clearly put behind him and where he has gone on to live a positive and constructive life in New Zealand.

Exercise of the discretion

[42] Having satisfied myself that the consequences of a conviction in this particular case are out of all proportion to the gravity of the offence committed by Mr Vohra, I turn to the exercise of the discretion conferred by s 106.

[43] As was said in Blythe v R:¹³

It will be a rare case where an offender has passed through the s 107 “gateway”, but is then not discharged under s 106(1).

[44] Nothing in this case weighs against exercising my discretion.

[45] Accordingly, I allow the appeal. An error was made in the District Court in that a s 106 application was not advanced or considered. Mr Vohra’s conviction is set aside. There is an order, under s 106 of the Sentencing Act, that Mr Vohra be discharged without conviction.

[46] For the avoidance of doubt, I note that the sentence of nine months supervision which has been served, is unaltered. Similarly, the decision has no impact on the granting and subsequent revocation of the protection order made by Judge Brandts-Giesen.

Solicitors:

S G Vidal, Southern Law, Invercargill Preston Russell Law, Invercargill

¹³ Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [13].