Sentencing Act 2002 – s 106 – appeal against conviction and sentence out of time on basis appellant should have been discharged without conviction due to the immigration consequences of convictions (liability for deportation under s 161 Immigration Act 2009 – permanent resident visa holder) being out of all proportion to the gravity of the offending – no discharge application made at first instance (no advice from counsel that this was an option and appellant unaware of immigration consequences) – jurisdiction of the court to consider appeal – scheme of Immigration Act – ability to make submissions to Minister of Immigration – minister best placed to consider effects on mental health and children – court cannot anticipate or predict minister’s decision – convictions do not inevitably result in deportation – no miscarriage of justice as discharge application would have failed had it been made
Truong v R [2023] NZCA 97
Ngoc Truong, a Vietnamese citizen with a permanent resident visa, pleaded guilty to charges of cultivating cannabis and theft of electricity in 2019.
She was sentenced to five months’ community detention, eight months’ supervision, and ordered to pay reparation of $2532.55. The sentence was served. Truong was not aware at the time that convictions would trigger liability for deportation pursuant to s 161 Immigration Act 2009 and was not advised by her counsel that she could apply to be discharged without conviction.
Truong’s husband and co-offender were unlawfully in New Zealand and was deported to Vietnam on the completion of his sentence in 2019. Whilst Immigration New Zealand (INZ) was aware of Ngoc Truong’s deportation liability in 2019, it did not take immediate action as it learned she had engaged with mental health services and it was considered inappropriate to pursue deportation at that time.
In April 2022, INZ learnt that Truong had been discharged from mental health services in November 2020. It took steps to locate her and then served her with a deportation liability notice. Truong then applied for leave to appeal her convictions and sentence out of time, seeking to be discharged without conviction pursuant to s 106 Sentencing Act 2002 on the basis that the immigration consequences of a conviction (real risk of deportation) and the effects on her mental health and two children (aged three and five years old, both New Zealand citizens) of deportation were out of all proportion to the gravity of her offending (noting that she played a supporting role to her husband).
The court granted an extension of time and leave to file fresh evidence on appeal without opposition from the Crown.
Applicable principles – Sentencing Act 2002 – s 106 – discharge without conviction – jurisdiction for the court to consider appeal when there was no application for a discharge at first instance – the gravity of offending – immigration consequences of a conviction – expert immigration law evidence – deportation liability of permanent resident – the ability to make submissions to Minister of Immigration – the outcome of that process and minister’s decision cannot be anticipated or predicted by the court – convictions do not inevitably result in deportation – effects on mental health and children best considered by the minister.
Held: The circumstances in which Truong’s sentencing occurred and in which her counsel did not make an application for a discharge without conviction has not resulted in a miscarriage of justice. Had Truong made an application, it would have failed, as the consequences of the convictions are not out of all proportion to the gravity of the offence.
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