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 these factors. There were aggravating factors too. Mr Chang assaulted his wife in their home.7 He applied force to her head and face. The assault was accompanied by something like a threat. And, the conduct was not merely violent but an exercise in humiliation. The victim was entitled to trust her husband.

[8]I share the Judge’s assessment of gravity; the high end of low is correct.

Consequences of conviction

[9]    Mr Chang contends the Judge erred in relation to her assessment of consequences across four areas: employment; reputation; mental health; and citizenship, all of which he addressed in an affidavit before the District Court.8

Employment

[10]   Mr Chang is employed by Westpac as a chef. His employment contract recognises what he does “outside work directly impacts how others perceive us and therefore Westpac”. Westpac is unwilling to comment on what effect, if any, a conviction may have on his employment—Mr Chang has told Westpac about the offence. Mr Chang is worried a conviction “will be viewed badly by HR and the managers”, and a future employer would not “look past” the conviction.

6      Police v Chang, above n 2, at [5].

7      Solicitor-General v Hutchison [2018] NZCA 162 at [27].

8      Mr Chang includes “other” as a fifth category, but this adds nothing.

[11]   The Judge said there was “no evidence … to suggest that there is a real risk that you will lose that employment”.9 I agree. The issue must be approached objectively, not according to a defendant’s subjective concern. Mr Chang has continued to work for Westpac since being charged; indeed, since pleading guilty in February this year. Entry of a conviction does not change the nature, incidence or severity of his offending. Like the Judge, I consider the prospect of job-loss remote.

[12]   Similar observations apply to future employment. A conviction may affect this, but there is no reason to believe a conviction poses a real and appreciable risk of the consequences Mr Chang envisages. Employers are capable of understanding and acting on mitigating features, especially when the offence appears to be a “one-off” by an otherwise law-abiding, good employee. In any event, Courts are reluctant to interfere with an employer’s “right to know” about the individual before them.10 I see no reason to do so in this case.

Reputation

[13]   Mr Chang is worried a conviction would badly damage his reputation. He believes he will be viewed as a “violent person”. The Judge considered some reputational harm “a natural and expected consequence of anyone committing a crime”,11 and nothing exceptional arose.

[14]I again agree.

[15]   A distinction should also be drawn between Mr Chang’s conduct and the fact of a conviction. That Mr Chang has been convicted is unlikely to aggravate reputational harm in consequence of acknowledged conduct.

9      Police v Chang, above n 2, at [7] (emphasis added).

10     R v Taulapapa, above n 4, at [45].

11     Police v Chang, above n 2, at [8].

Mental health

[16]   Mr Chang says he has found it “very difficult” since being charged, and he has “felt very depressed”. Mr Chang says if he were convicted, “it will make my mental health even worse”.

[17]The Judge said this:12

Counsel also raises an issue regarding your mental health and general consequences of a conviction. There is nothing out of the ordinary in your situation which suggests that a conviction will adversely affect those matters in any way that I need to consider.

[18]   Mr Chang contends this Court has inferred, in appropriate cases, adverse effects on a defendant’s mental health from the fact of a conviction.13

[19]   I assume without deciding there may be cases in which this type of consequence is so obvious no expert evidence is required. There are dangers in doing so in cases beyond the obvious. Lay people can use medical terms differently from experts. For example, it is not uncommon for people say to say they are “depressed”, when they really mean no more than they are unhappy. There is no medical evidence Mr Chang is depressed, and no such evidence his psychological well-being may be materially compromised by the entry of a conviction. In short, nothing objective exists to ground a likelihood of mental hardship beyond what would normally be anticipated in this type of setting.

Citizenship

[20]   Mr Chang is a New Zealand resident. He wants to apply for citizenship “in the next one or two years”. Mr Chang must declare if he has been convicted of any offence. Mr Chang says he is “worried … it might mean that I cannot get citizenship in New Zealand”.

[21]The Judge addressed this issue this way:14

12     Police v Chang, above n 2, at [9].

13     For example, Tait v Police [2015] NZHC 1601.

14 At [10].

Lastly, your Counsel argues that the consequence of a conviction may affect any application of citizenship you may make, as you are a New Zealand resident only. There is significant authority from the High Courts, for example, Tong v Police, which tells me that it is not for me to interfere with the immigration process and, therefore, I set that consequence to one side.

[22]   Mr Chang contends the Judge overlooked recent cases in which immigration consequences have been treated as relevant in this context.15

[23]   Again, no error arises. Mr Chang has not identified a real and substantial likelihood of any adverse consequence; merely the subjective concern of one. Moreover, the Judge was right to emphasise this issue is not for the Courts. Questions of whether New Zealand citizenship should be granted are quintessentially for the Executive—seized of all relevant information.

Proportionality

[24]   As will be apparent, Mr Chang’s concerns about consequences of conviction are largely subjective; not real and appreciable ones. Those that do exist—for example, some reputational harm—cannot be said to be out of all proportion to the gravity of the offence.

Other cases

[25]   Mr Chang cited three cases in which the defendant had been discharged.16 I address only the most similar.

[26]   In Tait v Police, the victim and the defendant had an argument after the latter accused the former of poor driving. The defendant struck the victim across the face with his open hand—once. Asher J concluded the consequences of conviction would be out of all proportion to the gravity of the offending. Potential employment consequences loomed large, albeit ones of a somewhat open-ended nature.

[27]   Mr Chang’s violence was more serious than Mr Tait’s. Unlike Mr Tait, he and the victim were in a relationship, and one of trust. Tait is distinguishable.

15     For example, Rahim v R [2018] NZCA 182 and Sunda v Police [2019] NZHC 756.

16     Phipps v Police [2015] NZHC 614, Dai v Police [2015] NZHC 2907 and Tait v Police [2015] NZHC 1601.

Is a term of supervision manifestly excessive?

[28]   The Judge imposed a term of nine months’ supervision. Mr Chang contends this is manifestly excessive because supervision can be imposed only when the Court is satisfied that sentence would reduce the likelihood of further offending by the defendant’s rehabilitation and reintegration.17 Mr Chang submits supervision was unnecessary given his voluntary rehabilitative steps, age, and the fact he is a first offender.

[29]   In his affidavit, Mr Chang said he wished to undertake relationship counselling with his wife but could not then afford it. Mr Chang also said he wanted to “do Restorative Justice” and was prepared to complete “voluntary community work or go to any programmes or courses the Court tells me to”. The affidavit implies Mr Chang has made considerable progress in his rehabilitation but would benefit from further, Court-facilitated help. Supervision was therefore an obvious choice.

[30]   This leaves one aspect. The Judge imposed a special condition Mr Chang complete family or relationship counselling as directed. I infer the Judge did so because Mr Chang said he could not afford this. However, a special condition may not be imposed unless the defendant poses “a significant risk of further offending”.18 Mr Chang does not. The condition must be quashed.

Result

[31]   Mr Chang’s appeal is allowed but only to the extent the special condition of supervision is quashed. To avoid doubt, Mr Chang’s conviction remains. So too his sentence of supervision.

……………………………..

Downs J

17     Sentencing Act 2002, s 46.

18     Section 50(a).