Crown lawyer Abigail Goodison, acting as counsel for the respondent in the appeal heard in the Nelson District Court, confirmed to NZME that a deportation liability notice issued to Taulafo soon after he was convicted last year was cancelled in May this year.
He was issued a temporary visa, but he was now subject to character waiver requirements at his next visa application.
Taulafo’s lawyer, Steven Zindel, said a criminal conviction would add a “chill in the air” as far as character was concerned, as even minor criminal conduct might have consequences.
“There are a number of kinks in the road which have potential significant consequences if a conviction is entered,” Zindel argued.
Judge Chris Macklin said a point made by the Immigration and Protection Tribunal, which cancelled the deportation liability notice, on the nuanced distinction between the facts of what had occurred and a conviction had weighed heavily on him.
Essentially, what that meant was that even if Taulafo was discharged, he was “by no means out of the woods”, Judge Macklin said.
Goodison said it remained up to Immigration NZ to make a decision, which summed up the respondent’s position.
She said the court had been left to compare the consequences of a conviction against a visa application Taulafo would have to make to remain in New Zealand beyond May next year.
“We don’t have any evidence on how likely it is that a visa may be granted in the event of a discharge without conviction,” Goodison said.
However, she accepted it would be more difficult to get a visa upon a conviction being entered.
“Regardless, the respondent’s position is that having to follow the character waiver process is not out of proportion to the gravity of the offending,” Goodison said.
High-profile rugby career
Taulafo has a high profile in Nelson’s Pasifika community, which, according to social media posts by the Nelson Tasman Pasifika Community Trust, is proud of his distinguished rugby career and his commitment to the local community.
The now 45-year-old, Samoan-born, loosehead prop moved to New Zealand in 2002 to play school rugby, then played for the Nelson Rugby Club, Nelson Bays and the Tasman Makos.
He left New Zealand in 2009 and played for several overseas clubs, including in England and France, and represented Samoa at the 2011 Rugby World Cup.
In January 2023, he returned to New Zealand, where he had established ties, including a family.
‘Six to eight beers’ before driving home
He was caught drink-driving the following year, when stopped by police driving home from the rugby clubrooms after “six to eight beers”, in the early hours of a morning in July 2024.
An evidential breath test recorded a reading of 600 mcg of alcohol per litre of breath.
He pleaded guilty to a charge of driving with excess breath alcohol, and sought a discharge without conviction.
However, a community magistrate declined the application and convicted and fined him $300 in the Nelson District Court last June, and disqualified him from driving for six months.
A week later, he was issued a deportation liability notice.
Last November, his appeal against the conviction in the District Court was also unsuccessful.
Taulafo then applied for leave to appeal to the High Court, which, after a hearing in Nelson in May, set aside the conviction and sent the matter back to be re-heard in the District Court.
Justice Jonathan Eaton was satisfied that errors in the process adopted in the first appeal, including failure by the defence to apply to present fresh evidence, gave rise to the “real risk” that a miscarriage of justice had occurred.
Magistrate’s decision upheld
However, the District Court, in accepting the fresh evidence, has now upheld the magistrate’s initial decision, meaning the original conviction stands.
“The earlier decisions by the community magistrate and the District Court judge are correct,” Judge Macklin said.
He said the gravity of the offending, which included Taulafo having driven drunk with passengers in the car and having therefore put others at risk, was ameliorated by his remorse and engagement in rehabilitation programmes.
Judge Macklin said that in reaching his decision, there was little risk of the court subverting a decision by Immigration NZ, but there was a chance it could be influenced positively.
“Immigration NZ would be duty-bound to take into account a lot of different factors, including favourable facts in reaching a decision,” Judge Macklin said.
Judge Macklin noted Taulafo‘s remorse, his position in the community as a respected community leader and his role as a father.
“Nothing that occurs today should take away from that.
“No one has anything but the utmost time for you,” Judge Macklin said in referring to Taulafo‘s decision to drive after drinking as a “silly mistake” rather than a reflection of his character.
Judge Macklin said Taulafo‘s immigration status had changed with the removal of the liability notice.
He said the real and appreciable risk from a conviction was that he might not get a good character waiver, and the uncertainty did create a disproportionality when weighing up a discharge without conviction.
The now 45-year-old Samoan-born loosehead prop, Sakaria Taulafo, moved to New Zealand in 2002 to play school rugby, then played for the Nelson Rugby Club, Nelson Bays and the Tasman Makos. Photo / NZPA, Wayne Drought
Judge Macklin acknowledged it would have a significant impact on Taulafo but he was not persuaded by the evidence that having to face a character waiver test was out of proportion to the offence of drinking and driving.
“I’m not able to grant the application,” the judge said.
Taulafo’s family said in a statement provided to NZME that the court process and media coverage had had a “significant impact” on the entire family.
“Sakaria has taken accountability for his actions and is genuinely remorseful.
“After the Covid-19 restrictions were lifted, he returned home to family with a priority of reconnection with his daughter.
“New Zealand has long been home for him – he previously held New Zealand residency and attended Nelson College.”
The family said he hoped to apply for residency again so he could remain close to his family and continue rebuilding his life here.
“Today’s outcome was about removing one of the barriers to making that possible.
“While we acknowledge the court’s decision, this has been an incredibly difficult journey for our family lasting around two years, and we hope to move forward together with some privacy.”
Tracy Neal is a Nelson-based Open Justice reporter at NZME. She was previously RNZ’s regional reporter in Nelson-Marlborough and has covered general news, including court and local government for the Nelson Mail.