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Supreme Court rules on how s 107 of the Sentencing Act should be applied in immigration matter

17 May 2024

| Author: Sonia Pinto

Discharge without conviction – ss 106, 107, 11(1) Sentencing Act 2002- Immigration Act 2009 s 161(1)(b) – deportation liability- public interest-participation in organised criminal group-appeal-Zhu v R [2021]NZCA 254- Sok v R [2021] NZCA 252, (2021) 29 CRNZ 962- individual assessment in 106 applications- reconsideration by the High Court

Bolea v R  [2024] NZSC as per Glazebrook, O’ Regan, France, Williams and Kós JJ

 

Elizabeth Maria Bolea, an Australian national with New Zealand residency, pleaded guilty to participating in an organized criminal group. The context to the offending was that she was in a relationship with Rhakim Mataia, a nominee of the Comancheros Motorcycle Club.

At the time, she was 22 and pregnant with their daughter. Bolea hired a rental car in 2020, along with Mataia and a further co-defendant, and drove to Christchurch. During a covert police search of the vehicle, at least 500mg of methamphetamine was found it the boot of the car.

As an Australian national, for immigration purposes Bolea is treated as having held a residence class visa from the time of her arrival in New Zealand in May 2019. As a holder of this visa, Bolea is liable for deportation under s 161(1)(b) of the Immigration Act 2009 if convicted of an offence for which the court may impose a term of imprisonment for two years or more.

Mataia had already been deported from Australia several years earlier and, as a result, under Australian law he was unable to return to Australia. If Bolea were deported to Australia, their daughter will go with her. As such, it would result in the family being split with each party unable to visit the other.

On this basis, Bolea applied for a discharge without conviction to avoid deportation, arguing that deportation would disproportionately affect her and her family. The sentencing judge denied her application.

The key issue on appeal was whether the Court of Appeal correctly addressed the risk of exposure to deportation. Specifically, it asked if the court appropriately treated the risk of actual deportation as a consequence of the offending rather than the conviction. If an error were found that warranted quashing Bolea’s conviction, the additional issue was whether the Supreme Court should decide on the discharge application or remit it to the High Court for reconsideration.

The Supreme Court provided a detailed legal analysis of s 107 of the Sentencing Act 2002. This section requires that a discharge without conviction can be granted only if the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

The court highlighted several key points including whether the liability for deportation and the risk of actual deportation should be treated as consequences of the conviction. This was because a deportation liability notice would “almost certainly” be issued if Bolea were not discharged without conviction. Individual assessment was also considered as the determination of whether the risk of actual deportation is a consequence of the conviction requires an individualised assessment of the defendant’s circumstances. If credible evidence suggests that deportation would likely follow a conviction, this must be considered.

The other two points that were made from the s 107 analysis included proportionality in that the court must assess whether the consequence of deportation would be out of all proportion to the gravity of the offence. This involves considering whether exposure to deportation procedures alone could be disproportionate, depending on the specific facts and context of the case. The Supreme Court noted that the application for discharge without conviction would benefit from further evidence, indicating the importance of a thorough factual assessment in such decisions.

As a result of this Supreme Court decision, the position in relation to s 107 has been clarified. An individual assessment of the defendant’s circumstances is required under ss 11(1) and 107 of the Sentencing Act. If credible evidence shows that a deportation liability notice will typically be issued, both the liability and the risk of actual deportation should be treated as consequences of the conviction, unless specific evidence suggests otherwise. This approach is applicable when immigration authorities consider only the conviction. If a conviction does not add to deportation risk, it may differ. The court must also ensure there is a real risk of deportation as part of the proportionality analysis under s 107.

 

HELD: The appeal is allowed, the conviction for participating in an organised criminal group was quashed and the application for a discharge without conviction was remitted to the High Court for reconsideration.

By remitting the case to the High Court, the Supreme Court emphasised the necessity of considering both the potential for deportation and the broader impacts on the individual when deciding on a discharge without conviction under s 107.

 

Bolea v R2024-NZSC-46 Bolea v R (1)

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