Chang v Police
[2022] NZHC 2187
•31 August 2022
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2022-488-19
[2022] NZHC 2187
BETWEEN SIN TIN (ADA) CHANG
Appellant
AND
NEW ZEALAND POLICE
Respondent
Judgment:
(On the papers)
31 August 2022
JUDGMENT OF BREWER J
This judgment was delivered by me on 31 August 2022 at 10 am
Registrar/Deputy Registrar
Solicitors:
T Shepherd (Kaikohe) for Appellant
New Zealand Police Prosecution Service (Kaikohe) for Respondent
CHANG v POLICE [2022] NZHC 2187 [31 August 2022]
Introduction
[1] Ms Chang appeals the refusal of Judge H B Shortland on 18 February 2022 to discharge her without conviction.1
[2]Ms Chang pleaded guilty to three charges of criminal harassment.2
[3] Ms Chang was employed by the victim as a barista for about three months, beginning her employment in March 2020. Judge Shortland set out the events which founded the charges:
[4] At about 8.00 am on 9 February [2021] the police served a trespass notice on you and you were trespassed from the victim’s workplace for a period of two years. However, later that day on 9 February at about half past three you arrived at the victim’s place of work looking for her. As a result, you were issued with a formal warning for wilful trespass.
[5] On 11 February [2021], police served you with a criminal harassment order against the victim for this matter. At about 10 pm on Monday 8 March 2021 the victim was checking her voice messages on her mobile phone; you had left 10 voice messages for the victim. You stated in the voice messages that you were in Kerikeri and wanted to follow up with her. The victim became scared for her safety after listening to your voice messages.
[6] Again, about 12 pm on 13 March 2021 the victim was checking her voice messages on her mobile phone. You left a further 15 voice messages for her. At that stage the victim blocked your number, but you continued to leave voice messages. You had stated in the voice messages that you wanted to be in a relationship with the victim. Those were the first two criminal harassment charges.
[7] As you know, the victim was, or still may be, the owner of a small business in Kerikeri. Due to the conflict at this stage your employment contract had been terminated and your behaviour had become something of a worry and therefore, again, you were trespassed from the address, as I mentioned, on 9 February. Of course, a criminal harassment notice was served on you on 12 February, so those facts are important as we go forward.
[8] On Saturday 11 September 2021 at about 11 o’clock the victim’s partner arrived back at their home and found you standing on the front doorstep. He immediately asked you to leave but you refused. You then proceeded to walk around the exterior of their home prying at a closed window and a door trying to gain entry to the dwelling. You then found that was not successful and you made your way towards the victim’s mailbox and riffled through the contents before taking a series of photos. Frustrated at this the victim’s partner has called her about the incident and the police were subsequently called. This obviously inflamed your behaviour or upset you at
1 Police v Chang [2022] NZDC 2777.
2 Harassment Act 1997, s 8(1)(a). The penalty is a maximum term of imprisonment of two years.
the time and you began to pace the length of the driveway demanding to speak to the victim.
[9] Witnessing this whole incident was a female neighbour who came pretty much to your aid and removed you from the address until the police arrived. In the explanation to the police you replied by saying you were concerned about the victim’s business, it was closing and wanted to discuss this matter with her. So, effectively, they were the facts of the case.
The law
[4] An appeal against a refusal of a Court to grant a discharge without conviction is a composite appeal against both conviction and sentence.3 Ms Chang’s appeal against the entry of a conviction will succeed only if I am satisfied that a miscarriage of justice has occurred. A miscarriage of justice will have occurred if there has been a material error or Judge Shortland materially “erred in applying the principles”4 for discharging an offender without conviction.
[5] An appeal against sentence will succeed if an error is identified such that a different sentence should be imposed. If a sentence is manifestly excessive then that is an error which must be corrected.
[6] Section 106 of the Sentencing Act 2002 (the Act) empowers a Judge to discharge an offender without conviction. However, s 107 provides:
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[7] Accordingly, there are three steps a court must take in deciding whether there should be a discharge without conviction. It must:
(a)Assess the gravity of the offence. This requires not only an assessment of the offending itself but also of any factors personal to the offender which aggravate or mitigate the gravity of the offending.
3 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [7]-[8].
4 At [12].
(b)Identify the direct and indirect consequences of conviction for the offender.
(c)Determine whether the direct and indirect consequences of conviction would be out of all proportion to the gravity of the offending.
[8] Only if the court decides that the s 107 threshold has been crossed may it then consider whether to exercise the discretion under s 106.
The Judge’s analysis
[9] The Judge first assessed the gravity of the offending. He identified as aggravating features of the offending:
(a)It resulted from “a very unhealthy attraction to the victim”.5
(b)There were excessive phone calls.
(c)There were attempts by Ms Chang to enter the victim’s home.
(d)There were attempts to have continual contact with the victim.
(e)Warning notices about potential harassment, stalking and trespass were ignored.
(f)There was a psychological impact on the victim and her family.
[10] The Judge noted that Ms Chang continued to have an “ongoing obsession or a focus on the victim”.6
[11] The Judge recognised that Ms Chang had mental health difficulties and that she had been in the care of the Mason Clinic:
[16] In terms of mitigation I think Mr Shepherd has outlined, in honesty, the struggles that you had in your upbringing of life, the difficulty that you
5 At [14].
6 At [15].
suffered from being abandoned as a child and, of course, you were raised by a loving auntie. More importantly, you suffered some sort of head trauma or injury, concussion, just prior to the offending and, of course, that always raises the issue or the risk as to how much of this offending is mental health, how much of that is personality. You have very little family support, if nothing, in New Zealand, you have lost what work you have had, you have financial stresses in terms of debts and I am unsure as to how much support you have in the community. You were diagnosed with conditions, delusional disorder, you were fixated on the victim and I think the psychiatrists have been very clear in terms of the diagnoses that you have suffered.
[17] I note and acknowledge that you have been in custody for about six weeks and the remainder of that time you have been in the Mason Clinic. You have expressed remorse in the reports that I have seen. You are considered by Community Corrections to be low risk to harm and low risk to re-offending. You have made some improvement but I do note there is the potential of recurrent behaviour and, as the professionals have said, trying to describe the mitigation of risk is very, very difficult, it is really an indication exercise and not a guarantee.
[12]The Judge considered the gravity of the offending to be moderately serious.
[13] The Judge then identified the direct and indirect consequences of convictions for Ms Chang if she were convicted of the charges:
(a)There would be “an impact on your ability to renew a visa”.7 However, the Judge noted that the immigration authorities were already in the process of deporting Ms Chang and concluded this was not an operative factor.
(b)Negative impact on employment possibilities.
(c)Deprivation of good character which could extend to the good name of Ms Chang’s extended family.
[14] The Judge then turned to the test of whether the consequences of convictions would be out of all proportion to the gravity of the offending.
[15]The Judge noted that Ms Chang had already spent five months in custody.
7 At [18].
[16] The Judge concluded that convictions would not be out of proportion to the offending. The Judge said:
[24] I am mindful of the compelling and mitigating submissions that has been provided. You have remorse, you are not sure what happened there, you cannot explain why things happened like they did, you have good character, you have employable options. That certainly does not answer all the questions. You have been subject to mental health treatments and medications. However, one cannot ignore the unfortunate case in recent times of the Christie Marceau and, as a result of that case, there has been a heightened need to assess the balance of the risk of harm against justice. That is a matter in which this decision falls upon.
[25] In this case I have weighted my decision towards the need to monitor the risk of harm and, on that basis, I am grateful to all the reports that have been provided by the psychiatrists which have highlighted their views and how they can best mitigate risk. They have been honest in terms of trying to identify the risk of harm and whilst these are good reports the door is still left open as to potential risk in terms of the fixation. That must be considered in the context that at some stage you are going to be released from the Mason Clinic and there has got to be some sort of ongoing support and monitoring because the real issue of whether there is still potential risk towards the victim has not been mitigated, in my view, fully.
[26] The issue of the fixation of the victim has not totally gone. It has been described in some reports as partial remission, also being described as requiring ongoing treatment with mediation and identified, most probably, in the community because one cannot stay inpatient for long periods of time unless really required. So, despite the protestations of not being fixed anymore I am not convinced that is the case.
[27] To discharge without conviction, if granted, the court does not have the ability to monitor any ongoing behaviour. I do note in s 106(c) leaves a wide ambit for the court to impose any other condition. However, that too has its restrictions. I am mindful that if Ms Chang was discharged without conviction she would only be subject to mental health and perhaps some minor criminal matters and, in my view, that is not sufficient to mitigate or to manage the ongoing risk that is still currently there. Under the Mental Health (Compulsory Assessment and Treatment) Act 1992, particularly in the community, the Act requires the patient at the time, or the consumer, to take medication, they can determine where they take medication but they cannot dictate where they live and I stand to be corrected if that has not changed.
[17] The final outcome for Ms Chang was a sentence of nine months’ intensive supervision.
The appeal
[18] The main issue on appeal is whether the Jude failed to give proper weight to Ms Chang’s mental health in assessing the gravity of her offending.
[19] To put this ground of appeal into proper perspective it is necessary to consider Ms Chang’s personal history.
[20] Ms Chang is a Chinese national who came to New Zealand from Hong Kong on 2 January 2020 on a work-holiday visa. She was 29 years old. Her work was in computer programming. Ms Chang had no criminal history.
[21] Ms Chang’s visa permitted her to work for periods of no longer than three months at a time. In March 2020, Ms Chang met the complainant, who owned a café, and spent about three months working for the complainant as a barista.
[22] Ms Chang was attracted to the complainant, but did not act on it. Her travels, and working periods, continued. She kept in touch with the complainant.
[23] On 21 September 2020, Ms Chang sustained serious head injuries in a sand- duning accident and was admitted to Whangarei Base Hospital. This might well have had an effect on her subsequent behaviour.
[24] Ms Chang was arrested on the charges of criminal harassment on 11 September 2021. Her behaviour raised concerns about her mental health. After a number of assessments Ms Chang was transferred to the Mason Clinic on 16 November 2021. She was resident there at the date of her sentencing. Two days later Ms Chang was served with a notice of liability for deportation. Ms Chang decided to leave New Zealand voluntarily. Her first two attempts to leave were unsuccessful due to difficulties complying with Hong Kong’s Covid-19 entry restrictions. On both occasions, having failed to board her flight, she returned to the care of the Mason Clinic. Ms Chang’s third attempt to return to Hong Kong was successful.
[25] Mr Shepherd for Ms Chang made careful submissions on the Judge’s analysis of the gravity of Ms Chang’s offending. I accept that the Judge erred.
[26] The circumstances of the offending, alone, do describe moderately serious offending. The first two charges arose from voice messages left on the complainant’s mobile phone in March 2021. The messages did not contain threats. However, the
third charge relates to an actual visit by Ms Chang to the complainant’s address. The complainant was not there. However, Ms Chang refused to go away. She never entered the complainant’s home, she made no threats, but she acted oddly and was nearby when the police came. And, obviously, there was a history of behaviour that had led to the issue of a trespass notice and, later, a Criminal Harassment Order. Overall, the offending is at the lower end of the moderate range because of its persistence.
[27] However, Ms Chang’s personal circumstances must reduce the gravity of the offending. The Judge identified Ms Chang’s previous good character. That required a discount. But it was clear that Ms Chang’s mental health, likely precipitated by her head injury, was causative of her offending. That required considerable recognition.
[28] I refer, by way of example, to J (CA32/2021) v R. In that case the appellant entered a liquor store carrying an axe which she placed on the counter.8 She told the shop assistant that she wanted a couple of boxes of Woodstock and a carton of cigarettes. She picked up the axe and proceeded to remove two boxes of Woodstock from the chiller. The assistant gave her a carton of cigarettes. She left carrying the axe. She subsequently pleaded guilty to one charge of demanding with menaces.9
[29] The appellant applied for a discharge without conviction. Her application was declined. She appealed unsuccessfully to the High Court. She then sought leave of the Court of Appeal to bring a second appeal against her sentence. She argued that the High Court’s interpretation of s 107 of the Sentencing Act 2002 had been too narrow and that the Court must retain a discretion to avoid a miscarriage of justice where a mature, first time offender would never have offended but for the intervention of a properly diagnosed psychotic episode.10
[30] The Court of Appeal granted the appellant leave.11 It accepted that the appellant was “obviously seriously mentally unwell at the time of the offending”.12
8 J (CA32/2021) v R [2021] NZCA 690 at [6].
9 Crimes Act 1961, s 239(2): carrying a maximum penalty of seven years’ imprisonment.
10 J (CA32/2021) v R, above n 8, at [4].
11 At [51].
12 At [38].
She had been in the manic phase of an established and diagnosed bipolar affective disorder at the relevant time.13 But for her ill-health, the offending would not have occurred.14 The Court accordingly found that the gravity of the offending was “low” and that a discharge without conviction was warranted.15
[31] I consider that but for Ms Chang’s ill-health the offending would not have occurred. Accordingly, I assess the overall gravity of Ms Chang’s offending as very low.
[32] I also accept Mr Shepherd’s submission that the Judge did not give due weight to the direct and indirect consequences to Ms Chang.
[33] It is true that Ms Chang was in New Zealand on a short-term visa and that Immigration New Zealand was already taking steps to remove Ms Chang. But convictions would impact her chances of successfully applying to return. And they might be relevant to her ability to travel to other countries.
[34] Convictions would deprive Ms Chang of her good character. Usually, that is of little weight where there has been deliberate offending. But not where the offending has been caused by mental ill-health.
[35] I consider also that the Judge erred in taking into account at the stage he did the possible risk to the complainant and/or the community if Ms Chang were subject to the mental health legislation in the event of a discharge without conviction as opposed to the more supervisory regimes available to the Court on conviction. In my view, those are factors going to the exercise of the s 106 discretion once the s 107 threshold has been crossed.
[36] In this case there was no real risk identified. Ms Chang was going to continue to be subject to the compulsory treatment requirements of the Mental Health (Compulsory Assessment and Treatment) Act 1992. Her condition had improved
13 At [11].
14 At [38].
15 At [41] and [51].
considerably during her period at the Mason Clinic and she was ready to be released into the community. There was no reason not to exercise the s 106 discretion.
[37] Finally, even if a conviction was justified, the sentence of nine months’ intensive supervision was manifestly excessive. Ms Chang had been in custody (in prison or at the Mason Clinic) for some five months before sentencing. The Judge did not take that into account in reaching his sentence. Further, intensive supervision ranks immediately below home detention in the hierarchy of sentencing. It imposes significant constraints on the liberty of the person sentenced to it. The Judge imposed it, I infer, not as the least restrictive response to Ms Chang’s offending but as a measure to manage the risk of her relapsing and re-offending. That was an error. An appropriate sentence (assuming the s 107 threshold was not crossed), given time served and the fact that Ms Chang was subject to compulsory treatment under the mental health legislation, would have been a conviction and discharge.
Decision
[38]I have concluded:
(a)The gravity of Ms Chang’s offending was very low.
(b)The direct and indirect consequences to her of the entry of convictions were not insignificant.
(c)Those consequences were out of all proportion to the gravity of her offending.
(d)There was no sufficient reason not to exercise the discretion under s 106 of the Act to discharge Ms Chang without conviction.
(e)In any event, the sentence of nine months’ intensive supervision was manifestly excessive.
[39] The appeal is allowed. Ms Chang’s convictions are quashed and she is discharged without conviction.
Brewer J
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