IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE	
CRI-2018-409-000064
[2018] NZHC 2930	

BETWEEN	RICHARD JAMES CARROLL
Appellant	
AND	NEW ZEALAND POLICE
Respondent	

Hearing:	8 November 2018	
Appearances:	S G Graham for Appellant
SRDD Bicknell-Young for Respondent	
Judgment:	12 November 2018	

JUDGMENT OF GENDALL J

Introduction

[1]	On 19 July 2016, Judge Kellar in the District Court convicted the appellant, Richard Carroll, of common assault and sentenced him to 60 hours’ community work and $3400 in reparation. Mr Carroll appeals his conviction and sentence on the ground that his legal advice at the time was inadequate and incorrect regarding the impact of the conviction on his immigration status. Leave to bring this appeal out of time was granted on 23 August 2018.

[2]	Mr Carroll is a skilled immigrant and New Zealand resident who, since moving here in 2012, has established a drainage and construction business which now employs nineteen full-time permanent staff. He has no previous convictions in any jurisdiction, and has had no further criminal issues since this conviction. As a result of the conviction, he has been issued with a deportation liability notice. Mr Carroll has filed

CARROLL v NEW ZEALAND POLICE [2018] NZHC 2930 [12 November 2018]

judicial review proceedings against the Immigration Officer’s decision to issue that notice.

Facts

[3]	At about 10.30pm on 20 February 2016, Mr Carroll was at the Pegasus Arms Bar on Oxford Terrace, Christchurch. The victim in this matter was working as a security officer for the bar.

[4]	The victim approached Mr Carroll in the bar and requested that he leave as he thought he was too drunk. The victim and Mr Carroll went outside to talk. Mr Carroll started to move towards the victim so the victim lightly pushed Mr Carroll back. Mr Carroll then punched the victim in the face with a closed fist.

[5]	The Summary of Facts records that from this one punch the victim suffered a chipped tooth and a sore face. The Victim Impact Statement separately states that the victim also suffered a broken nose and required reconstructive nose surgery. In addition, he says he has suffered ongoing pain and sleep deprivation.

District Court decision

[6]	After traversing the facts and the impact on the victim, Judge Kellar in the District Court noted the need to very firmly denounce assaults on security personnel. In setting a sentence of 60 hours’ community work and $3400 reparation, the Judge took into account Mr Carroll’s otherwise good character, his insistence on paying reparation, and his prompt guilty plea once the charge was clarified.

Principles on appeal

[7]	The approach in an appeal such as this requires the Court to ask first, whether there was an error on the part of counsel and, if so, secondly, whether there is a real risk that it affected the outcome by rendering the verdict unsafe. If the answer to both questions is “yes”, this will generally be sufficient to establish a miscarriage of justice, so that an appeal will be allowed.

[8]	There will be rare cases however where, although there was no error on the part of counsel in that in an objective sense his advice was reasonable at the time, an appeal will be allowed because there is a real risk that there has been a miscarriage of justice.1

[9]	If this is a situation where a discharge without conviction should have been granted, then either there will have been a material error by the sentencing Judge, or a miscarriage of justice will have occurred for some other reason, such that this appeal against conviction must be allowed.2

[10]	The Court may grant an offender a discharge without conviction under s 106 of the Sentencing Act 2002 only if it is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending.3 This requires a three step process: first, the Court must identify the gravity of the offence, second, it must identify the direct and indirect consequences of a conviction; and third, it must determine whether the consequences of a conviction are out of all proportion to the gravity of the offence.4 This proportionality test is not a matter of discretion, but rather of judicial assessment.5 The Court may decide whether to exercise its discretion under s 106 only if the s 107 test is met. It remains open to the Court to decline to exercise its discretion to grant a discharge.

Submissions

Appellant’s submissions

[11]	Present counsel for Mr Carroll, Mr Graham, submits that had Mr Carroll received adequate legal advice at the time, he would have argued at the District Court for a discharge without conviction. This would have been appropriate, he contends, given the low-level nature of the offending and the disproportionate consequences

1	See  R  v  Scurrah  CA159/06,  12  September  2006,  Court  of   Appeal  at  [17]  and  [20];  and
Sungsuwan v R [2005] 21 CRNZ 977 at [70].
2	Criminal Procedure Act 2011, s 232(2)(b) or (c); and Jackson v R [2016] NZCA 627 at [12].
3	Sentencing Act 2002, s 137, and Jackson v R [2016] NZCA 627, [2016] 28 CRNZ 144 at [12]. See also Gaunt v Police [2017] NZCA 590 at [9] – [10].
4	R v Hughes [2008] NZCA 546; [2009] 3 NZLR 222 at [16] – [17].
5	H (CA680/11) v R [2012] NZCA 198 at [30].

Mr Carroll would have faced, and eventually did, face relating in particular to his immigration status.

[12]	Mr Graham seeks leave under s 334 of the Criminal Procedure Act 2011 to adduce further evidence on appeal, being an affidavit by Mr Carroll sworn and dated 11 July 2018. The affidavit sets out what has happened since Mr Carroll’s conviction, particularly in relation to his immigration status. Mr Graham says that, this evidence could not reasonably have been adduced at the hearing, and it is entirely credible. Counsel does acknowledge, however, that admitting such evidence is only done in exceptional circumstances.6 In this case, the leave sought was not opposed and is granted.

[13]	In terms of the substantive appeal, Mr Graham submits that, in all the circumstances,  Mr  Carroll  should  have  been  discharged  without  conviction.   Mr Carroll’s exemplary record outside this conviction (which is his only conviction) and the fact that he has set up what is said to be a successful construction business in New Zealand employing nineteen full-time staff, are relevant background on that aspect.

[14]	Initially here, Mr Carroll was charged with injuring with intent to injure, but once this was reduced to a charge of common assault, he promptly pleaded guilty.  Mr Carroll says that he did so on the advice of his counsel at the time, Mr Morrall. Mr Graham argues that Mr Morrall appears not to have appreciated the possibility that Mr Carroll could be deported as a result of the conviction, even though the offending was minor and Mr Carroll had already been granted residency. He seems to suggest that Mr Morrall did not advise Mr Carroll on the possibility of applying for a discharge without conviction, despite there being a real possibility that it could have been granted. According to Mr Graham, counsel instead advised that Mr Carroll should plead guilty at the first instance to demonstrate his remorse.

[15]	At some point the police, it seems, were open to granting Mr Carroll diversion. This was to recognise that this incident was a temporary lapse of judgement from a

6	Citing McEwen v Police HC Auckland AP81/87, 2 December 1987 and Richardson v Police
[2015] NZHC 1431.

person with an otherwise unblemished record. However, it appears the victim insisted that Mr Carroll was to be prosecuted. This is despite Mr Carroll’s offer of reparation even before he had been charged, and his (refused) offers to engage in restorative justice.

[16]	As I have noted, on 19 July 2016 Mr Carroll was convicted in the District Court of common assault, sentenced to 60 hours’ community work, and ordered to pay approximately $3400 in reparation. He immediately paid the reparation and the community work was served.

[17]	Nearly eleven months later, on 2 June 2017, an officer of the Ministry of Business, Innovation and Employment informed Mr Carroll that he was liable to be deported under s 161(1)(a)(iii) of the Immigration Act 2009. This section provides that a residence class visa holder (which Mr Carroll is) is liable for deportation if he or she is convicted of an offence for which the Court has the power to impose imprisonment for a term of three months or more, where the offence is committed within two years of the person first holding a residence class visa. Mr Carroll’s immigration advisor made submissions to MBIE addressing Mr Carroll’s circumstances. Regardless, on 15 November 2017, the Minister of Immigration confirmed that Mr Carroll was liable for deportation. The deportation notice, however, was suspended for five years. Mr Graham submits, however, that it still poses an imminent threat to Mr Carroll’s livelihood and residency status in New Zealand, if he were to commit another offence in the meantime. This is particularly the case because, as a result of Mr Carroll’s role within his company, it is said he is exposed to the risk of a prosecution under the Land Transport Act 1998 for acts or omissions of his company’s employees.

[18]	On this appeal, Mr Carroll also applies to this Court for a discharge without conviction under s 106 of the Sentencing Act 2002. He did not do so during sentencing in the District Court. As to this aspect, Mr Graham submits that Mr Carroll’s offending here is at the lower end of the spectrum of severity and culpability. He contends there are no aggravating features of the offending, and Mr Carroll’s mitigating features include his remorse and good character. Mr Graham maintains that the consequences of the conviction, being Mr Carroll’s liability for deportation, would be out of all

proportion to the seriousness of the offending. On this, he refers to cases which he claims are similar where the s 106 discretion was exercised. Mr Graham says that the question for the Court is:

whether the momentary lapse of judgment resulting in a common assault of minor severity, assessed against an otherwise exemplary life, should have the automatic consequence of the risk of deportation hanging over the appellant, which also indirectly causes undue hardship to the appellant’s business and that of its employees.

[19]	As such, Mr Graham says the appeal should be allowed and this Court should discharge Mr Carroll without conviction.

Respondent’s submissions

[20]	In response, counsel for the respondent, Ms Bicknell-Young, submits that the appeal against conviction should be dismissed, in which case consideration of the     s 106 application to discharge without conviction is not needed. Alternatively, if the appeal is allowed, she contends the s 106 application should not be granted.

[21]	Ms Bicknell-Young notes specifically that Mr Carroll did not apply in the District Court for a discharge without conviction at the time of sentencing. She stresses too that Mr Carroll’s deportation liability will be cancelled at the end of the five-year suspension period if he is not convicted of an offence, and even if he is, MBIE’s advice is that deportation liability will not automatically be reactivated.

[22]	Ms Bicknell-Young submits there was no miscarriage of justice in the District Court entering a conviction in the circumstances here. Mr Carroll was represented there by experienced counsel, he pleaded guilty to a lesser charge than the one he faced originally, and he did not apply for a discharge without conviction.

[23]	The respondent  has  filed  affidavits  from  Mr  Carroll’s  former  counsel  Mr Morrall and the barrister he instructed, Mr Cook. Mr Morrall’s file on this matter was destroyed by a flood, so his affidavit is based on his best efforts at recreating the file, his memory, and his general approach to cases of this nature. As I note above, Mr Carroll has said that Mr Morrall did not impress on him the risk of deportation. Mr Morrall, however, deposes that he remembers discussing a potential s 106

application with Mr Carroll and advising multiple times that he would need to see an immigration lawyer. Mr Morrall annexes a letter written by Mr Carroll during the early stages of the process, while attempting to gain police diversion. This records Mr Carroll’s concerns about the effect of a conviction on his residency. Mr Cook in his affidavit confirms also that he remembers “the immigration concerns of Mr Carroll were at the forefront of the file”. Mr Cook says his standard practice in this type of file is to refer the client to an immigration lawyer. Both Mr Morrall and Mr Cook dispute that Mr Carroll was unaware of the immigration consequences of his conviction.

[24]	Ms Bicknell-Young submits that it may fall to the High Court to consider whether a miscarriage of justice has occurred here because the sentencing court, of its own volition, did not turn its mind to granting a discharge without conviction. She maintains that Judge Kellar did not err in not doing so, for all the reasons previously discussed, but particularly because the injuries caused by Mr Carroll to the complainant were relatively serious.

[25]	If the appeal against conviction is to succeed, Ms Bicknell-Young goes on to submit that, in any event, there is no basis for a discharge without conviction here, as the direct and indirect consequences of a conviction would not be out of all proportion to the gravity of the offending. Ms Bicknell-Young also contends that the Court should not usurp the powers and functions of a specialist body, here MBIE, in granting a discharge without conviction. In Solicitor-General v Mohib, the High Court stated:7
[47] Where the risk of deportation is raised as a consequence of a  conviction, the Courts have generally held that the deportation decision should be left to the appropriate immigration authorities.

[26]	Ms Bicknell-Young acknowledges Mr Carroll’s potential deportation liability. I repeat that quite properly she stresses, however, that this liability will be cancelled after five years without further criminal conviction. In addition, even if Mr Carroll is convicted, MBIE still has a discretion whether to deport him. The consequences of conviction therefore are said to be “speculative rather than real and appreciable”, and

7	Solicitor-General v Mohib [2016] NZHC 1908, citing Ji v R [2015] NZCA 308 at [49]; R v Foox [2000] 1 NZLR 641 (CA) at [39]; R v Mu CA262/03, 24 October 2003; and A (CA747/10) v R [2011] NZCA 328 at [30].

it would be inappropriate therefore for the Court here to grant a discharge without conviction.

Analysis

[27]	It does appear that, in all the circumstances here, Mr Carroll’s offending, culminating in one charge of common assault and involving one punch to the face of the complainant, might at one level be seen as relatively minor, especially when considered against his otherwise good character. I acknowledge that this is a case about assault on a security officer at a bar and a significant public interest exists in discouraging this type of late night assault on a “bouncer” simply doing his job. I accept, however, that this was a one-off incident at the lower end of the spectrum and that Mr Carroll is clearly remorseful and made a significant reparation repayment to redress the harm done, a payment accepted by the complainant. In my view, these are significant factors which go some way towards favouring a discharge. The Victim Impact Statement however must be acknowledged along with references to ongoing harm. The consequences of this one punch proved to involve a significant injury to the complainant. Overall, however, I consider that a discharge without conviction along with the requirement to serve 60 hours’ community work (which has occurred) and to make the $3,400 reparation payment which Mr Carroll has done is a proper result here. To amplify that conclusion, I note that if Mr Carroll is convicted of any offence within five years of his deportation liability notice being issued here, he is at serious risk of deportation. I accept, too, that, given the nature of his continuing business, he is at risk of conviction under the Land Transport Act for acts and omissions caused by his employees. MBIE has clarified that deportation would not be the default  position in those circumstances, but  if this was to occur it seems     Mr Carroll would have no right of appeal.

[28]	If it was certain that Mr Carroll would be deported as a result of a subsequent conviction, the issue would more clearly fall on the side of the consequences being seen as disproportionate to the seriousness of the offending. However, that clarity does not exist here. As such, a critical question is whether, given this uncertainty as to consequences, the Court should make a decision which might effectively intervene

in MBIE’s decision-making. This is especially so, given Mr Carroll has brought judicial review proceedings against that decision.

[29]	Mr Carroll says that an error occurred here in that Mr Morrall did not stress to him the risks to his immigration status as a result of his guilty plea. Mr Morrall, along with Mr Cook, reject  this,  however,  as  being  entirely  unlikely.  It  appears  that Mr Morrall and Mr Cook did discuss the possible implications on Mr Carroll’s immigration status with him, and mentioned consulting an immigration lawyer. For whatever reason, however, Mr Carroll did not consider that was necessary. (It may have been that this resulted from some misunderstanding on Mr Carroll’s part of the advice he was clearly being given. Alternatively, Mr Carroll may simply have exhibited a somewhat casual approach to possible outcomes in the face of the advice he had received.) Without Mr Carroll seeking immigration advice and material for the sentencing Judge to consider, there was little available at the time to support an application for a discharge without conviction.

[30]	Regardless, it does seem somewhat odd that Mr Morrall or Mr Cook would not have advanced an argument for a discharge without conviction if Mr Carroll’s immigration concerns were front of mind as they say. The focus of this Court on the present appeal needs to be on outcome, and I conclude, therefore, but only by a fine margin, that there is room to find an error has been made here in that a discharge application was not made in the District Court.

[31]	An earlier decision of the High Court Jeon v Police involves a not dissimilar situation and to a point is instructive here, even though the result in every discharge without conviction case is highly fact dependent.8 In that case, the appellant pleaded guilty to dangerous driving. He had driven through a stop sign at moderate speed and collided with a truck, causing his wife moderately serious injuries and the truck driver moderate injuries. He and his wife were residents. The District Court heard an application for a discharge without conviction, but refused to grant it. On appeal to the High Court, Woodhouse J granted the discharge, noting that cases which discussed the risk in so doing of usurping the Minister’s power related to people seeking visas

8	Jeon v Police [2014] NZHC 66.

or permits, not people at risk of losing an established residency status. The Judge also said that there will be cases where the s 106 discretion should be exercised by the Court without leaving the determination to the Minister. Otherwise, he said, the Court would be abandoning its duties. Ultimately, Woodhouse J noted that he was to consider:9
... whether this momentary inadvertence resulting in a driving offence of moderate seriousness, and assessed against an otherwise exemplary life, should have the automatic consequence of the risk of deportation hanging over this man and his family for possibly up to 10 years.

[32]	Jeon is different to the case at hand in that the risk of deportation or the ongoing threat of deportation was only a possibility. Here, Mr Carroll has received a deportation liability notice, albeit suspended for five years. It is true that Mr Carroll’s offence was one of violence and not a driving offence, but arguably the injuries to the victim were less serious than those in Jeon.

[33]	On balance, however, I consider that granting Mr Carroll a discharge without conviction would be appropriate in all the circumstances here. An error was made in the District Court in that a s 106 application was not advanced or considered. The consequences of conviction, too, namely the threat for a period of five years, of possible deportation, are out of all proportion to Mr Carroll’s offending.

Conclusion

[34]	Mr Carroll’s offending was, in the scheme of things, relatively minor. The threat of deportation hanging over Mr Carroll’s head for five years is a consequence in itself, particularly given he would not have any right of appeal should a further deportation liability notice be issued. Although deportation is not a certainty here (as it requires a further conviction within the five-year period and no grant of relief occurring), and Mr Carroll has other avenues to avoid deportation, including succeeding in his current judicial review application, I find that the present threat of deportation in this case, is out of all proportion to Mr Carroll’s offending.

9	At [21].

[35]	In those circumstances, this appeal is allowed, the conviction imposed in the District Court is quashed (but the sentence of 60 hours’ community work which has been served and $3,400 in reparation which has been paid are to remain) and the application to discharge Mr Carroll without conviction is granted.

...................................................
Gendall J
Solicitors:
Young Hunter, Christchurch
Raymond Donnelly & Co, Christchurch