IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CRI-2020-404-000528
[2021] NZHC 1051	

BETWEEN	HARCHARAN SINGH SIDHU
Appellant	
AND	NEW ZEALAND POLICE
Respondent	

Hearing:	3 May 2021	
Appearances:	AP Talakai for Appellant
LJ Sullivan for Respondent	
Judgment:	11 May 2021	

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 11 May 2021 at 3.30pm

Registrar/Deputy Registrar

Date……………………….

Solicitors:	Kayes Fletcher Walker, Auckland To:	A Talakai, Auckland

SIDHU v NZ POLICE [2021] NZHC 1051 [11 May 2021]

Introduction

[1]	Harcharan Sidhu pleaded guilty to assault with intent to injure.1 He sought a discharge without conviction under ss 106 and 107 of the Sentencing Act 2002. Judge J C Moses declined the application on 28 November 2018.2 Mr Sidhu now seeks leave to appeal out of time against that decision, to adduce further evidence on the appeal (if leave is granted), and substantively appeals (again, assuming leave to appeal out of time is granted).

Facts

[2]	At the time of the offending in March 2018, Mr Sidhu was 28 years old. He had been in New Zealand since 2015 on a series of work visas. By March 2018, he had been married for about one year. The victim of his offending was his wife.

[3]	On 10 March 2018, the couple were at their home address. There was an argument about whether or not they should go out. Mr Sidhu’s wife left the house. Mr Sidhu followed her outside, where he pushed her up against their car and placed both of his hands around her neck and squeezed it. He continued to squeeze her neck for about 20 seconds, until a witness yelled that she was calling the Police. He then released his wife.

[4]	Mr Sidhu pleaded guilty to this offending. I should note at the outset that despite pleading guilty to this  offending  and  the  summary of  facts at  the time,  Mr Sidhu stated to the writer of the Provision of Advice to Court Report (PAC) Report at the time of his sentencing that he did not strangle his wife, but merely grabbed her by her collar. He said he pleaded guilty so as to not “waste the court’s time”.

[5]	Judge Moses sentenced Mr Sidhu on 28 November 2018. I address the Judge’s decision in more detail further below. For present purposes, it is sufficient to note that the Judge declined Mr Sidhu’s application for a discharge without conviction and sentenced Mr Sidhu to 150 hours of community work.

1	Crimes Act 1961, s 193. Maximum penalty three years’ imprisonment.
2	Police v Sidhu [2021] NZDC 27624. The judgment was delivered in 2018 but was not authenticated, and thus given a formal court citation, until early this year when this appeal was lodged. Nothing turns on this.

[6]	Following his offending but prior to sentencing, Mr Sidhu applied to renew his work visa. On 13 December 2018 (i.e. after his sentencing) Mr Sidhu says he received a “potentially prejudicial information” letter from Immigration New Zealand (INZ), in which he was invited to make submissions on whether a waiver of the character requirements for his visa ought to be granted. In a decision dated 24 January 2019, INZ declined to renew Mr Sidhu’s work visa. The decision stated that the reason for declining to grant the visa was because Mr Sidhu did not meet the character requirements and that a waiver of those requirements was not appropriate. It appears from the decision that  aside  from  the  character  requirements,  INZ  considered  Mr Sidhu otherwise met the relevant immigration instructions to be approved for a work visa in New Zealand.

[7]	Mr Sidhu (and his wife, whose visa is tied to Mr Sidhu’s visa) have since taken various steps under the immigration legislation to challenge the decision not to extend Mr Sidhu’s work visa, but to no avail. Legal advice provided to Mr Sidhu and dated 23 April 2021 (produced by Mr Sidhu on the present application for leave to appeal) recommended that he appeal Judge Moses’ decision to decline to grant him a discharge without conviction. Counsel for Mr Sidhu on the present application state that all avenues under the Immigration Act 2009 have been exhausted and that the present steps are therefore the only remaining option available to Mr Sidhu.

The District Court decision

[8]	Judge Moses first summarised the offending. The Judge noted that Mr Sidhu’s counsel submitted that the offence was “not violent in nature”3 and at the lower end of the scale of culpability. The Judge disagreed. He considered that the offending was inherently violent and, given that it consisted of strangulation, quite serious. He noted that twenty seconds is a long time for strangulation. He also referred to various High Court decisions on sentences for strangulation, and noted that in almost all of them a starting point of imprisonment had been adopted. The Judge accordingly considered the offending in this case to be moderate to serious, but accepted that Mr Sidhu’s lack

3	At [3].

of previous convictions, his steps at rehabilitation and the ongoing support of his wife “moderates the seriousness of the offending somewhat”.4

[9]	The Judge then considered the consequences of a conviction, and in particular, the risk of Mr Sidhu’s work visa not being renewed (and thus rendering him, and his wife, liable to deportation).  The Judge referred to trial counsel’s submission that   Mr Sidhu had at that point been advised by INZ that his work visa would not be renewed if a conviction were entered, though the Judge noted that he did not have anything to that effect in writing.   I interpolate to note that a letter from INZ to      Mr Sidhu dated 3 July 2018 was attached to Mr Sidhu’s affidavit filed in support of his application for a discharge without conviction, which stated that INZ had not made a decision on Mr Sidhu’s application at that time. The letter stated that in the event of a conviction, Mr Sidhu would not meet INZ’s requirements to be of good character, and invited him to make a submission on why the character requirements should be waived. I also note that the decision made by INZ in January 2019 (referred to at [6] above) refers to additional INZ letters to Mr Sidhu dated 6 September and 13 December 2018, and that those letters had “invited you to make comments or to provide further information to help us decide whether your circumstances justify waiving the temporary entry character requirements”. It seems unlikely, therefore, that at the time of his sentencing, Mr Sidhu had been advised in writing by INZ that his application would be declined. It seems more likely that his trial counsel’s reference at sentencing to further correspondence from INZ was in fact a reference to INZ’s 6 September 2018 letter.5

[10]	Returning to the Judge’s decision, the Judge referred to Court of Appeal authorities to the effect that the courts should be cautious about making assessments about whether or not someone will be deported or denied a visa as a result of a conviction being entered.6 Accordingly, the Judge concluded that the immigration consequences of a conviction should be left to the immigration authorities, and that it was not for the Judge to “usurp their role in deciding whether or not the defendant meets the good character test”.7 The Judge therefore concluded that the consequences

4	At [9].
5	That letter has not been produced on the present application or appeal.
6	Ho v R [2016] NZCA 229 and Ji v R [2015] NZCA 308 at [49].
7	At [14].

of the offending were not out of all proportion to the gravity of the offending, and declined the application for a discharge without conviction. In terms of the sentence, and as already noted, the Judge stated that the starting point for Mr Sidhu’s offending would normally have been one of imprisonment, but given the various mitigating factors, he would impose a final sentence of 150 hours of community work.

Should leave to appeal out of time be granted?

[11]	Section 248 of the Criminal Procedure Act 2011 specifies that an appeal must be filed within 20 working days after the date of the decision appealed against. Subsection (4) of that section provides that the first appeal court can give leave to extend this deadline. Mr Sidhu filed his appeal on 10 December 2020, and therefore almost two years out of time. This is a significant delay.

[12]	Mr Sidhu says that his trial counsel did not tell him at the time that he could appeal Judge Moses’ decision to decline his application for a discharge without conviction, and that he did not realise the impact a conviction would have on his immigration status. Mr Sidhu also says that the very real risk of his visa being cancelled was present at the time of his sentencing, but the information was not provided to the Judge, and had the Judge known of that risk, it could well have made a difference to his decision.

[13]	It is well established that the test for whether leave to appeal out of time ought to be granted reduces to the reasons for the delay and the merits of the appeal.8 Where the appeal is some years out of time, as here, leave will only be granted in exceptional cases.9

[14]	I record that I have taken into account in my consideration of whether leave ought to be granted to appeal out of time the further materials Mr Sidhu seeks leave to file on his appeal. That material comprises an updating affidavit by Mr Sidhu, an updating affidavit by his wife, an opinion from an immigration lawyer as to the

8	Mikus v R [2011] NZCA 298 at [26], citing R v Slavich [2008] NZCA 116 at [14].
9	Butcher v R [2015] NZCA 102 at [7]; see too, however, Stewart v R [2011] NZSC 62, [2012] 1 NZLR 1, where leave might be granted if the appeal was certain to succeed, even after a long and inexcusable delay.

consequences of a conviction on Mr Sidhu’s immigration status,10 a 2015 LawTalk article about the consequences of conviction for immigration status generally and INZ’s policy on character waiver.  While not all of the information is fresh, some of it is, and it can all be described as cogent. For these reasons, I have concluded it is in the interests of justice to admit this material on the application for leave to appeal out of time.

[15]	In my view,  and while I have some sympathy for the position in which       Mr Sidhu (and his wife) now find themselves, I am of the view that the proper and principled approach in this case is to decline the application for leave to appeal out of time.

[16]	Ultimately, I am not persuaded that the stated reasons for the delay justify what is a significant delay in lodging an appeal. Mr Sidhu says that he was not aware at the time that he had a right of appeal. Given Mr Sidhu was legally represented, that would seem somewhat unusual, but I proceed on the basis that that is so. Nevertheless, this alone would not, in my view, justify granting leave to appeal out of time, particularly given a significant delay of two years. Even in other statutory contexts involving substantive rights, including the Immigration Act 2009, a lack of knowledge of a right to appeal or to commence judicial review proceedings is not itself a basis for granting an extension of time.11

[17]	I accept, however, the position might be different if the proposed appeal had clear and strong merits. That leads to the second key factor relevant to whether leave ought to be granted in this case, namely the merits of Mr Sidhu’s proposed appeal.

[18]	As a preliminary point, the present submission made on Mr Sidhu’s behalf that he was not aware at the time of the District Court proceedings what the impact of a conviction on his immigration status could be is incorrect. In his own affidavit sworn in support of his application for a discharge without conviction, Mr Sidhu deposed that

10 Though I note this does not discuss in any substance the immigration consequences, but rather traverses the option of appealing against Judge Moses’s decision and the prospects of success in doing so.
11 See, for example, Bhasin v Immigration and Protection Tribunal [2018] NZHC 644 at [28] and
Xie v Minister of Immigration HC Auckland CIV-2008-404-2401, 25 July 2008 at [27].

if a conviction were entered, he would be deported to India. Judge Moses’ decision also traversed the potential immigration consequences of not granting a discharge without conviction, namely that Mr Sidhu and his wife might not be able to stay in New Zealand. As noted, however, the Judge considered that properly a matter for immigration officials.

[19]	I do not discern any error in the approach taken by the Judge. While Mr Sidhu, both in his discussion with the Probation Officer preparing the PAC Report and on the present appeal, suggests that he did not in fact strangle his wife but merely grabbed her by the collar, it is plainly not appropriate for either the District Court or this Court to go behind the summary of facts to which Mr Sidhu pleaded guilty. That summary of facts discloses strangulation in a domestic violence context. Squeezing his wife’s neck for some 20  seconds  is  serious.  The  summary  of  facts  also  records  that Mr Sidhu’s actions were only interrupted by a witness yelling at him that she was calling the Police. I therefore do not accept that the Judge erred in his categorisation of the gravity of the offending overall as moderate. And the Judge plainly and correctly took into account the various mitigating factors applicable to Mr Sidhu in that assessment. This ultimately led to the Judge imposing a sentence of community work only, rather than anything more significant.

[20]	I am also satisfied that the Judge took an entirely orthodox approach to his assessment of the consequences of a conviction. While there is no doubt the courts are entitled to consider adverse immigration consequences in an application for a discharge without conviction, as the Judge noted, the courts are also hesitant to usurp the decision-making role of the relevant authorities. As the Court of Appeal in Rahim v R stated:12
The reluctance of courts to intervene in the decision-making of specialist bodies such as Immigration New Zealand or, in the employment context, professional disciplinary bodies, is most often evident where the outcome cannot be reasonably predicted. In such cases, the consequence of a conviction will be the risk that the offender’s immigration status or ability to travel overseas may change, or that disciplinary action, or some obstacle to qualification or employment, may occur.

12	Rahin v R [2018] NZCA 182 at [29].

[21]	Counsel for the respondent also refers to the Court of Appeal’s  decision in Ho v R as an example of this approach.13 In Ho v R, the Court was provided with an affidavit from an immigration lawyer stating that if convicted, it was unlikely the appellant would be granted the necessary character waiver for him to obtain a work, study or residence visa. The Court stated:14
…even if it is unlikely Mr Ho will be able to stay in New Zealand, that does not amount to a disproportionate consequence of the convictions. As a foreign national he has no general right to stay in New Zealand. It is a matter for immigration services to decide whether to renew his visa, having regard to factors including the Court’s assessment of the gravity of Mr Ho’s offending. The Court should not usurp that assessment.

[22]	As matters stood at the time of Mr Sidhu’s sentencing, it was not certain what impact a conviction would have on Mr Sidhu’s immigration position. There was certainly a risk, and I accept it was a reasonable risk, that his (and his wife’s) immigration status would be compromised. But leaving the assessment of Mr Sidhu’s immigration status to immigration officials was not an error. In my view, and based on the materials then before Judge Moses, to have declined to enter a conviction on this basis would have been to usurp INZ’s decision-making role. This is particularly so given the Judge’s assessment of the gravity of Mr Sidhu’s offending.

[23]	I accept that in some cases, the Court will be willing to intervene and grant a discharge without conviction in the face of potential immigration consequences. But this is often when the offending can be described as low level, and the consequences of a conviction are clear. An example of such a case is Bong v R.15 In that case, it was agreed that the offending in question was “very low-level”,16 and there was expert evidence that it would be “very difficult” for Mr Bong to persuade the immigration authorities to exercise their discretion and cancel a deportation order. Other examples of the courts being willing to grant a discharge without conviction in the context of immigration concerns include where there is a risk of a family, including young dependents, being broken up.17

13	Ho v R [2016] NZCA 229.
14	At [15].
15	Bong v R [2020] NZCA 94.
16	At [30].
17 See for example, R v Tang [2019] NZHC 2056 (moderate gravity of offending, real risk of separation from young son); Sunda v Police [2019] NZHC 756 (moderate gravity of offending, separation from wife and young child); Vohra v Police [2018] NZHC 3192 (low gravity of

[24]	But there was no evidence to this effect before the Judge (or me); rather,     Mr Sidhu and his wife do not have children and it is plain she would not be able to remain in New Zealand but for Mr Sidhu’s visa status. They would therefore return to India together. There was also no suggestion of any particular hardship were that to occur, and from the submissions made before me, it seems Mr Sidhu has a supportive family in India (as they are presently supporting him and his wife financially while he is unable to work).

[25]	I accordingly discern no error in the Judge’s decision not to grant a discharge without conviction. On that basis, and had Mr Sidhu appealed within time, I consider it likely his appeal would have failed.

[26]	But what of the position now? It is now of course more than two years after Mr Sidhu was sentenced and the immigration process has run its course. At least as matters presently stand, the decisions have not fallen in Mr Sidhu’s favour and he (and his wife) are presently unlawfully in New Zealand. Subject to any remaining appeals, applications for judicial review or other avenues available in the immigration context, there is a real likelihood of deportation.

[27]	Does this provide a basis for granting an extension of time in this case? In my view, it does not. The process properly recognised by the Judge to be within the domain of INZ has simply run its course and the immigration risk identified at sentencing has come to pass. And that consequence is not, in my view, out of all proportion to the gravity of the offending in this case. The gravity of the offending was moderate. There is no suggestion of Mr Sidhu being separated permanently from dependants, such as young children, or his wife. Nor is there any suggestion of any particular hardship to Mr Sidhu or his wife were they to return to India.18 Further, INZ is already fully aware of Mr Sidhu’s offending. Accordingly, granting a discharge without conviction now, particularly when there was no error in the judgment from

offending, separation from committed partner); and Chand v Police [2017] NZHC 2188 (low gravity of offending, likely deportation of sole caregiver to young child).
18   I take into account the very difficult situation India faces at present due to COVID-19.  I proceed on the assumption that INZ takes these matters into account when considering the timing of any deportation.

which Mr Sidhu seeks to appeal, would in my view be analogous to this Court usurping INZ’s decision-making function.

[28]	For these reasons, I decline to grant leave to appeal.

Fitzgerald J