(File photo) The Supreme Court of New Zealand. Photo: RNZ / Rebekah Parsons-King
An Australian woman convicted of gang activity in New Zealand says if she is deported her daughter will not be able to see her '501' father.
A Supreme Court hearing on Tuesday considered whether the Court of Appeal was correct to dismiss Elizabeth Bolea's appeal application earlier this year.
In 2020, the New Zealand resident visa-holder knowingly drove her partner - a prospective member of the Comancheros Motorcycle Club - and another person from Auckland to Christchurch in a car carrying at least 500 grams of methamphetamine. She was more than five months pregnant at the time of her arrest, and was sentenced to four months' home detention last year.
However, she applied for a discharge without conviction, saying she would take the couple's daughter with her if she was deported - meaning the two-year-old would be permanently separated from her father. Bolea's partner, New Zealander Rhakim Mataia, had previously been deported from Australia and is not allowed to return.
The sentencing judge declined and found deportation, if it happened, would be a consequence of the offending rather than the conviction. That decision was upheld by the Court of Appeal in March.
Bolea's lawyers today argued that the offending and the conviction could not be separated.
"The two are in no way mutually exclusive," their written submissions said.
"It is to state the obvious, but if a consequence arises from a conviction it must also be, by default, a consequence of the person's offending."
They argued the gravity of the offending was low to moderate, while the consequences arising from the conviction would be serious. It was almost certain Bolea would be deported if her conviction was upheld, they said.
"It is, however, the (further indirect) consequences that would then flow which are more of moment.
"The consequences to the appellant, and her child, at that point, would be severe. They include: Loss of current employment and established livelihood in New Zealand; An inability for the appellant's child to remain in her country of birth; An inability for the appellant to remain in a relationship with her partner; An inability for the appellant's child to live with, or have meaningful ongoing/regular contact with, her father."
Lawyers for the Crown argued that Bolea's deportation was not inevitable, as it would be up to a decision by Immigration New Zealand.
"That consequence must be balanced against the fact that Ms Bolea pleaded guilty to an offence with a maximum sentence of 10 years' imprisonment, in circumstances that attracted a starting point of 18 months' imprisonment," they wrote.
"In those circumstances, exposure to liability for deportation is not out of all proportion to the offending ... Even if deportation is the correct consequence to consider, deportation would not be disproportionate in this case."