Chang v Police - [2019] NZHC 2051

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-000170

[2019] NZHC 2051

UNDER the Criminal Procedure Act 2011

BETWEEN

SEUNGHO CHANG
Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 19 August 2019

Counsel:

CM Allington and SE Giles for Appellant SA Rankin for Respondent

Judgment:

20 August 2019

JUDGMENT OF DOWNS J

This judgment was delivered by me on Tuesday, 20 August 2019 at 4 pm.

Registrar/Deputy Registrar

Solicitors/Counsel:
Public Defence Service, Waitakere. Crown Solicitor, Auckland.

CHANG v POLICE [2019] NZHC 2051 [20 August 2019]

The case

[1] On 10 May last year, Mr Seungho Chang grabbed his wife by the hair and slapped her face twice. Mr Chang told her to “get out and die”. Mr Chang was angry his wife had spoken to his mother about some investments. The victim suffered “slight swelling to her face” but not more.1 Mr Chang admitted the offence to the Police and pleaded guilty. The offence was his first. Mr Chang is 42.

[2] Judge B R Pidwell declined to discharge Mr Chang without conviction.2 Mr Chang appeals. He contends the Judge erred in not discharging him. Mr Chang also contends his sentence of supervision is manifestly excessive.

Principle

[3] A Court may discharge a defendant without conviction if satisfied the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.3 The Court first assesses the gravity of the offending, which includes both aggravating and mitigating factors. The Court next assesses the direct and indirect consequences of conviction. It then asks whether those would be out of all proportion to the gravity of the offending. If so, the Court has a residual discretion whether to discharge the defendant without conviction.

[4] An appellate Court must be persuaded the Court below was wrong; but reach its decision on its own view of the case.4

[5] The sentence appeal must be allowed if, and only if, the Judge erred; and a different sentence should have been imposed.5

1      Summary of facts.
2      Police v Chang [2019] NZDC 7860.
3      Sentencing Act 2002, s 107. Drake v R [2019] NZCA 56 provides a recent example of a successful application for a discharge (on appeal to the Court of Appeal).
4      R v Taulapapa [2018] NZCA 414 at [18] citing H (CA680/2011) v R [2012] NZCA 198 at [35]-[36].
5      Criminal Procedure Act 2011, s 250(2).

Gravity of the offending

[6] The Judge assessed this as low, “but the high end of low”.6 Mr Chang argues this “overstates the gravity of the offending” given mitigating features. As observed, Mr Chang is a first offender. He pleaded guilty and expressed remorse. Mr Chang engaged in a restorative justice conference (in which the victim said she forgave him). Mr Chang successfully completed a 13-week Stopping Violence programme, and other counselling. The victim supports Mr Chang’s discharge. The couple have reunited and again live together.

[7] The Judge referred to all…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NZHC 2051
Decision Date: 20 August 2019

CaseChat Overview and Summary

In this case, Mr Seungho Chang, a first-time offender, pleaded guilty to assaulting his wife by grabbing her by the hair and slapping her face twice, and telling her to "get out and die". The District Court Judge declined to discharge Mr Chang without conviction, and instead imposed a term of supervision. Mr Chang appealed on two grounds: firstly, that the Judge erred in not discharging him without conviction, and secondly, that his sentence of supervision was manifestly excessive. The Court of Appeal considered the gravity of the offending, the consequences of conviction, and whether a term of supervision was appropriate.

The Court of Appeal found that the Judge was correct in assessing the gravity of the offending as being at the higher end of low. Although Mr Chang had taken steps towards rehabilitation, such as completing a programme and engaging in restorative justice, the Court found that the assault was not merely violent but an exercise in humiliation. The Court further found that the consequences of conviction were not out of proportion to the gravity of the offending. While Mr Chang expressed concerns about the impact of a conviction on his employment, reputation, mental health, and citizenship, the Court found that these concerns were largely subjective and did not present a real and appreciable risk of harm. The Court found that the Judge was correct in assessing the consequences of conviction and in declining to discharge Mr Chang without conviction.

The Court of Appeal also found that the sentence of supervision was not manifestly excessive. The Court found that supervision was an appropriate sentence given Mr Chang's voluntary rehabilitative steps, age, and the fact he was a first offender. However, the Court found that a special condition of supervision, which required Mr Chang to complete family or relationship counselling as directed, was not appropriate as Mr Chang did not pose a significant risk of further offending. The Court quashed this condition, but upheld the sentence of supervision.

In conclusion, the Court of Appeal allowed Mr Chang's appeal to the extent that the special condition of supervision was quashed. However, the Court upheld Mr Chang's conviction and sentence of supervision. The Court found that the Judge was correct in assessing the gravity of the offending and the consequences of conviction, and that a term of supervision was an appropriate sentence. The Court found that the special condition of supervision was not appropriate and quashed it.

Orders