Chen v Police
[2021] NZHC 2386
•13 September 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-404-550
[2021] NZHC 2386
BETWEEN ZIANG CHEN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 30 August 2021 (further material received 8 September 2021) Appearances:
K T Cheung for Appellant H Reid for Respondent
Judgment:
13 September 2021
JUDGMENT OF LANG J
[on appeal against conviction and sentence]
This judgment was delivered by me on 13 September 2021 at 3.30 pm.
Registrar/Deputy Registrar Date……………
Solicitors:
Crown Solicitor, Auckland
CHEN v NEW ZEALAND POLICE [2021] NZHC 2386 [13 September 2021]
[1] Following a Judge alone trial in the District Court Judge E M Aitken found Mr Chen guilty on two charges of breaching a protection order and two charges of assaulting his former partner.1 On 9 December 2020 the Judge declined an application by Mr Chen for an order discharging him without conviction and sentenced him to 12 months supervision. 2
[2] Mr Chen appeals against conviction on the basis that the Judge erred in her assessment of the evidence and, in any event, ought to have granted him a discharge without conviction.
Approach
[3] There is no dispute regarding the approach an appellate court must now take to a first appeal against conviction. In Sena v Police the Supreme Court confirmed that conventional appellate principles apply to such appeals.3 This requires an appellate court to reach its own decision regarding the correctness of the judgment subject to appeal. The onus is on the appellant, however, to demonstrate error on the part of the Court below. As always, an appellant court will exercise “customary caution” when assessing any challenge to findings based on credibility where the trial Judge has the advantage of seeing and hearing the witnesses.4
Preliminary issues
[4] Before I consider the arguments relating to the charges, I deal with two preliminary issues.
Pre-determination
[5] The first relates to an argument that the Judge made remarks at a relatively early stage of the hearing suggesting she had pre-determined the case against Mr Chen. The Judge made the remarks whilst counsel for Mr Chen was cross-examining the complainant on the first afternoon of the hearing. The cross-examination related to
1 New Zealand Police v Chen [2020] NZDC 13167.
2 New Zealand Police v Chen [2020] NZDC 25613.
3 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575.
4 At [38].
visits the complainant had made to Mr Chen’s workplace, a restaurant. On these occasions she had accosted both Mr Chen and his work colleagues. This led to Mr Chen’s employer arranging for a trespass notice to be served on her on 19 June 2017 prohibiting her from returning to the restaurant. During this evidence the following exchange occurred:
Judge: So are you saying that he tried to break up with her, that his evidence will be in February and again in March is that what we, is that the gist of what I’m going to hear?
Ms Cheung: A week or two before she made the police complaint and also that he was injured before, that’s why when he was attacked again on 19th of February he believed he was going to be injured again, and applied force which..
Judge: Well we haven’t heard any evidence of that either so he’ll be giving evidence that he was attacked and this is the basis so what’s it got to do with whether she goes round to the office to harass or speak to his work colleagues? What’s that got to do with his defence?
Ms Cheung: Is that he’s had a great deal of trouble getting rid of her and that’s why he put up with the physical abuse for so long. He was the victim. It was a domestic violence relationship except he wasn’t the perpetrator.
Judge:So what’s that got to do with the colleagues. I’m just not sure I can – I’ve given you a lot of latitude. We talked about events a year prior, six, nine months prior to this incident, a lot of latitude. What has it got to do with whether or not she went – what if she did go and harass his colleagues - what has that got to do with the facts in issue on these two incidents?
Ms Cheung: I want to say it goes to her credibility.
Judge:How? Let’s just say she did harass his work colleagues. Why did that make her less credible than not? How does that impact on her credibility? Are we talking about a woman scorned here? We’re going to revert to that typecasting, hell has no fury, is that where we’re going?
Ms Cheung: That she’s no shrinking [violet] and quite capable of harassing him and he was the one who was harassed and tormented.
Judge:But why do we need to hear what went on in his place of work and what is the documentary evidence? Perhaps if I can have a look at that. I am really just thinking this is traversing the minutiae of this relationship and I’m struggling to make a connection and I’m wondering if we’re moving into matters that do not need to be fairly put in a defended hearing. Can I have a look at the documents that are about to be?
[6] Ms Cheung contends the italicised passage of the Judge’s remarks shows she had unfairly pre-determined the case against Mr Chen. Reading the passage in context, however, I consider the exchange took place because the Judge was concerned that the cross-examination of the complainant related to events that had little or no relevance to the issues she was required to consider. This is not surprising given the extent to which counsel for Mr Chen had already cross-examined the complainant in considerable detail about events that occurred well before the incidents giving rise to the charges. The questions relating to the complainant going to Mr Chen’s workplace concerned events that had occurred during 2017 whereas the incidents giving rise to the charges were alleged to have occurred in February and March 2018.
[7] As I observed to Ms Cheung during the hearing, the hearing lasted two full days. The remarks with which she takes issue formed a very small part of a single exchange between Judge and counsel in a lengthy Judge-alone trial. There were many more similar exchanges both before and after the one upon which Ms Cheung relies. Had the Judge had pre-determined the case as Ms Cheung suggests I consider this would have become obvious during the balance of the hearing. Ms Cheung confirmed, however, that she did not take issue with anything else the Judge said or did during the balance of the hearing. I therefore put this issue to one side.
Events that occurred prior to sentencing
[8] Sentencing was delayed from September to December 2020 because of events that occurred after the Judge delivered her decision finding Mr Chen guilty of the charges on 21 July 2020. The first adjournment occurred because Community Corrections advised that the complainant had accused Mr Chen of breaching his bail conditions by attempting to contact her. The Judge considered this issue could be relevant to the sentence to be imposed upon Mr Chen. She therefore adjourned sentencing from 4 September to 15 October 2020 so the issue could be properly investigated. The investigation had not concluded by 15 October 2020, so the Judge adjourned it through to 9 December.
[9] It then transpired that in late July or early August 2020 the police had received anonymous information to the effect that the complainant had a large number of
weapons stored at her home. Three police officers went to the complainant’s address on 4 August 2020 to follow up on this information. There is no evidence that they found any weapons at the address. However, they subsequently advised the complainant that the police had received numerous other reports to the effect that she was storing weapons at her address.
[10] A few days later, on 4 August 2020, the complainant went to the police station and spoke to police staff about the information they had received. She told the police she believed Mr Chen was likely to be the person who had given them the information because he knew her personal details and had said the same thing during the hearing before the Judge. Ms Cheung points out that Mr Chen did not make any statement during the hearing to the effect that the complainant was storing weapons at her home.
[11] At sentencing Ms Cheung told the Judge that the statement the complainant had made to the police on 4 August 2020 was a fabrication and amounted to a deliberate attempt to falsely incriminate Mr Chen. During this discussion the Judge said it had crossed her mind that the complainant may be suffering from some form of mental instability. Ms Cheung now submits that, regardless of whether the complainant deliberately misled the police or made the allegation as a result of mental instability, the events that occurred after sentencing demonstrate her overall lack of credibility.
[12] This submission needs to be measured against the fact that the complainant has never had the opportunity to explain why she apparently told the police Mr Chen had said during the hearing that she stored weapons at her address. There may be any number of explanations for what the police recorded her as telling them. One may relate to the fact that, as the trial transcript makes clear, the complainant clearly has difficulty understanding and speaking English. There is no suggestion that she had access to an interpreter when she visited the police station on 4 August 2020. It is quite possible she told the police, or intended to tell them, that Chen had said during the hearing that she used weapons against him. This is correct as Mr Chen said both when interviewed by the police and in giving evidence that the complainant had attacked him on several occasions using a pair of scissors. I do not consider weight
can be given to this issue when the allegation has never been put to the complainant for her comment.
The charges relating to the incident on 19 February 2018
The evidence
[13] The evidence disclosed that Mr Chen met the complainant in New Zealand and entered into a relationship with her in or about July 2016. By mid-2017 difficulties had arisen in the relationship and the Family Court made a protection order in favour of the complainant. Notwithstanding this fact it is clear that they continued seeing each other after the protection order was made.
[14] The complainant said that in the early hours of 19 February 2018 she and Mr Chen were in Mr Chen’s apartment when an argument began. She was sitting on the bed and he was sitting on a chair a short distance away. The complainant said the argument developed to the point where Mr Chen punched her in the left eye. She said she then ran to her vehicle and took photographs of the injury. These were produced as an exhibit. Before leaving the room she also took a photograph of Mr Chen to prove that he had been present that night. Later the same day Mr Chen sent several messages to the complainant using the WeChat social media application. During these he apologised and said that what he had done was not right.
[15] The complainant did not make a complaint to the police until the following month. She said she delayed making a complaint because Mr Chen had apologised to her and because her parents were visiting from China during this period and she did not want them to have concerns about her safety. By the time she made her complaint Mr Chen had returned to China and he remained there for several months before returning to New Zealand.
[16] Following Mr Chen’s return to New Zealand the police conducted a videotaped interview with him on 21 January 2019. He told the police he could remember the incident that occurred on 19 February 2018. He said they had had an argument that evening because he wished to end the relationship whilst she wanted him to marry her. There had been earlier physical confrontations in which the complainant had been the
aggressor. During these she had punched him and used a pair of scissors against him as a weapon. On one occasion she had cut his finger using the scissors. Mr Chen told the police that during the incident on 19 February 2018 the complainant had again assaulted and punched him and had then gone to grab the scissors. He had intercepted her and had struck her with his elbow to prevent her from attacking him with the scissors.
[17] Mr Chen gave evidence at trial and largely reiterated what he had said about the incident during the videotaped interview. He described how the relationship with the complainant quickly becoming abusive as she put pressure on him to marry her so she could become a New Zealand resident. He also became concerned because he found images on his computer showing that the complainant appeared to have two passports. One of these showed that she was five years older than she had claimed to be. At one stage the complainant also claimed to be pregnant with Mr Chen’s child but this later turned out not to be the case.
[18] Mr Chen said the deterioration in the relationship resulted in arguments that led to the complainant assaulting him on a regular basis, including occasions on which she used a pair of scissors as a weapon. Mr Chen showed the Judge photographs of injuries to his neck that he sustained after the complainant had scratched him. This incident led to the police becoming involved. It was about this time that the complainant began going to Mr Chen’s workplace, resulting in her being trespassed from those premises. Mr Chen also showed the Judge a scar left on his left forearm and a photograph of an injury to a finger that were the result of earlier incidents in which the complainant had attacked him with a pair of scissors.
[19] Mr Chen described how the complainant had scratched him and tried to attack him again with a pair of scissors during the argument that occurred on 19 February 2018. He said he was conscious of the earlier injury to his arm and had become very scared. He had then pushed her away with his hands and arms in an effort to defend himself. He said he was not aware whether it was his elbow or his hand, or maybe a piece of furniture, that struck the complainant in the eye.
[20] Mr Chen acknowledged he had sent the complainant several WeChat messages the following day and said he did so because he wanted to comfort her. He said he was determined by this stage to end the relationship but was afraid she would exact some form of revenge or reprisal against him if he did not take steps to avoid further confrontation with her. He then left New Zealand and returned to China with members of his family on 6 March 2018.
The Judge’s decision
[21] The Judge accepted that the relationship between the complainant and Mr Chen had been turbulent and that on occasions the complainant had been the aggressor in physically assaulting Mr Chen. When turning to the assessment of the evidence the Judge observed:
[53] The defendant clearly admitted assaulting the complainant on 19 February 2018 in the many WeChat messages he sent to her that day – on no less than four occasions saying that it was his fault. He also sent her a text that morning saying he would never do this again. He does not refer to acting in self-defence, or to her abusing him to react as he did.
[54] Photographs taken by the complainant to her right eye were produced. It appears to be bruised. They are consistent with her evidence.
[55] The issue for the Court is whether other evidence before the Court, including what the defendant said in his interview, raises a reasonable doubt as to the complainant’s veracity, and/or a plausible narrative for why the defendant would make this admission if he was acting in self-defence.
…
[58] Whether this charge of assault is proved depends on whether the complainant is a credible witness of truth on which the Court can rely.
…
[65] It is clear that, around July 2017, the complainant sent a series of messages to the defendant, some of which appear abusive. This was around the time the trespass notice was issued, and the police safety order. They paint a picture of an angry, or at times perhaps confused, young woman, who appears to believe the defendant is having a relationship (or relationships) with another woman.
[66] But they do not materially assist the Court in determining whether her allegations as to these two claimed assaults are untrue.
[22]The Judge then found the charges proved for the following reasons:
[74] The defendant admitted the assault on 19 February to the complainant, the police and the Court. At the time, he repeatedly apologised for it. He refers to the complainant swearing ‘like daily routine’ and (as per the court translation) says “didn’t you swear at me/verbally abuse me?” I interpret that as explaining the rationale for his actions. In other words, he raises this aspect of her conduct but relevantly, he did not raise self-defence in the communication with the complainant. He claimed in court that she had attacked him on previous occasions with the scissors and tried to do so on this occasion. I find it implausible that, had she done so, he would fail to mention that in his justification for assaulting her.
[75] The best evidence in my view is that available on the day of this incident. The defendant clearly accepted the assault (as he did later in interview and evidence). He provided some ‘justification’ – the complainant swore at him – but he did not raise self-defence when he might reasonably be expected to have done so, and I reject his claim now to have been too scared about the complainant’s reaction to admit to acting in self-defence.
Decision
[23] Ms Cheung advances several arguments in support of her overall submission that the Judge erred in accepting the evidence given by the complainant and rejecting that given by Mr Chen. The ultimate issue, however, is whether this Court considers the Judge erred in her assessment of the evidence to such an extent that a miscarriage of justice has occurred.5
[24] Ms Cheung’s principal submission is that numerous aspects of the complainant’s evidence suggested she was an unreliable witness. Ms Cheung contends the Judge effectively failed to take these into account. She also says the Judge failed to explain why she found the complainant a credible witness and did not accept the evidence given by Mr Chen.
[25] I consider the Judge did give reasons for her decisions and these are contained in the passage from her decision set out above at [22]. In short, the Judge found that there was no dispute that some form of altercation had occurred on 19 February 2018. This resulted in the complainant receiving the injuries depicted in the photograph she had taken of herself shortly after the incident. Mr Chen had then sent several WeChat messages to the complainant later the same day apologising for what he had done and acknowledging it was not right. In those messages he referred to the fact that the
5 Criminal Procedure Act 2011, s 232(2)(b).
complainant had sworn at him. However, he did not refer at any stage to the fact that she had attempted to attack him using a pair of scissors and that he then defended himself because he feared for his safety. The Judge found it was implausible that Mr Chen would have failed to allude to these events at some point in his messages to the complainant if they had occurred. This led the Judge to conclude that the complainant was telling the truth about what had happened during the incident that led to the charges and Mr Chen was not.
[26] The Judge obviously enjoyed a significant advantage that this Court does not have because she was able to observe the manner in which both the complainant and Mr Chen gave evidence over a lengthy period. This Court suffers from the disadvantage that it is obliged to rely on the written trial transcript, and this does not give the true flavour of the manner in which the parties gave their evidence. However, the Judge did not decide the case based on her assessment of the demeanour of the witnesses. Rather, she based her decision on the inferences to be drawn from evidence that was not in dispute, namely the WeChat messages that Mr Chen sent to the complainant shortly after the incident.
[27] Ms Cheung submitted that Mr Chen gave an explanation for sending the WeChat messages and the Judge should have accepted this. I do not agree. As tribunal of fact the Judge was free to accept or reject all or part of the evidence given by any witness. Furthermore, I consider the Judge drew the correct inference from the WeChat messages. It is difficult to believe Mr Chen would apologise on several occasions and acknowledge that his conduct was not right if he had truly been responding to the aggressive actions of the complainant in attempting to attack him with a pair of scissors. He also attempted to justify his actions to the complainant on the basis that they were a response to her swearing at him. If Mr Chen was prepared to go that far in explaining his actions to the complainant, it is difficult to see why he would not also point out that he had been defending himself from physical attack by her. Like the Judge, I consider Mr Chen’s explanation of the WeChat messages to be implausible. For this reason the prosecution was able to negative the defence of self- defence.
[28] Once self-defence was no longer an issue the elements of the offence were clearly established. There was no dispute that Mr Chen struck the complainant and caused the bruising around her eye depicted in the photograph the complainant took of herself. Given that the Judge had rejected Mr Chen’s evidence she was entitled to conclude Mr Chen struck the complainant in the way she described.
[29] I am therefore satisfied the Judge was correct to find Mr Chen guilty on the first two charges.
The charges relating to the incident on 2 March 2018
[30] The other two charges were laid as a result of an incident that allegedly occurred on 2 March 2018. At that time Mr Chen’s parents were visiting New Zealand from China and this was an issue that clearly caused friction between the complainant and Mr Chen. His parents were staying in another apartment in the same building as Mr Chen and the complainant.
[31] The complainant said that on the evening of 2 March 2018 she and Mr Chen became involved in an argument because he planned to leave the apartment and accompany his parents to have a meal, I assume at a restaurant. She did not want him to leave. The complainant said the argument developed into a physical altercation in which Mr Chen pushed her to the ground and kicked her in the left thigh. He then left the apartment and went out to dinner with his parents. He did not return until 10 or 11 pm.
[32] The complainant said the blow to her leg resulted her leg becoming swollen and sore and bruises subsequently developed. She produced photographs of these as exhibits. She said Mr Chen left New Zealand and went back to China with his parents a few days after this incident.
[33] When the police asked Mr Chen about the incident in his videotaped interview, he acknowledged that he remembered it. Mr Chen said both his parents were very worried about him because of his relationship with the complainant. He also said that his father had mental health issues and these were made worse by conflict with the complainant. He said she wanted to accompany him to dinner with his parents, but he
begged her not to come. This led to an argument. During this the complainant was saying she wanted to go to his parents’ apartment to talk to them. He did not want this to happen.
[34] When the police showed Mr Chen the photograph the complainant had taken of the injuries to her thigh he told them she had been assaulting him and he pushed her away so as to protect himself. He said she was again in possession of a pair of scissors on this occasion. He said the complainant went to assault him and he pushed her so that she fell back onto some chairs and a table. He said he used his elbow and knee to protect himself as he pushed her away. He said she received the bruises on her leg after she fell back onto a chair.
[35] Mr Chen advanced a different defence at trial. When he gave evidence, he said he had been confused when the police interviewed him because he had no means of accessing his records to see what he had been doing on 2 March 2018. He said he had now been able to check his cellphone records and was sure that he had been away from the apartment for the whole of the day on 2 March 2018. He said he had left the apartment building with his parents in the morning to attend festivities associated with the Chinese New Year and had not returned until late at night.
[36] Mr Chen’s explanation at trial relied largely on the fact that the complainant had sent numerous WeChat messages to him during 2 March 2018 whilst he was away from the apartment with his parents. He produced these as exhibits. Mr Chen’s defence at trial was therefore that the incident the complainant described had never occurred because he was not at the apartment at the time the complainant said the incident giving rise to the charges occurred.
[37] Ms Cheung had cross-examined the complainant on these issues and she acknowledged sending messages to Mr Chen whilst he was away from the apartment but was sure he had been there when the incident occurred,
The Judge’s decision
[38] The Judge rejected Mr Chen’s evidence and found him guilty of the second set of charges for the following reasons:
[56] In terms of the allegation of assault on 2 March, the defendant has given two very different accounts of what happened that day. In his police interview, he said he assaulted the complainant, claiming he acted in self- defence. In his evidence before this Court, he claimed he had not seen the complainant all day, and that nothing happened at all.
[57] At best, the defendant’s evidence regarding this allegation could be said to be totally unreliable – at worst a complete fabrication. It is rejected. The Court has some concerns about the police interview in that no interpreter was available, and at times it is difficult to follow the defendant’s answers. But his evidence as to this event is clear, and no issue was raised by him in his evidence before the Court that he had misunderstood the police questions, or that his answers were in any other way unreliable.
…
[77] As to the 2 March 2018 assault, the complainant gave a credible account of what happened. In his police interview, the defendant corroborates the complainant’s account as to why they were arguing (he not wanting her to go with him and his parents) and that he pushed her. He claimed in the interview to have been acting in self-defence, he then changed his evidence materially when he claimed to the Court that he was never with the complainant that day.
[78] The phone records reflect a barrage of phone calls that day, particularly between 1700 and 1807, the assault allegedly occurring around 1800. However, they do not make the complainant’s account implausible.
[79] For all these reasons, I reject the defendants’ evidence before the court, and have no reasonable doubts as to the complainant’s explanation. I am satisfied that the defendant assaulted her on 2 March 2018 by pushing her onto the ground. This charge is also proved.
Decision
[39] The two explanations Mr Chen has given in response to these charges are obviously mutually exclusive. During his interview he appeared to recall the events that resulted in the complainant receiving bruising to her leg in some detail. He was able to describe pushing her when she tried to assault him and said she sustained the bruises when she fell against a chair. This explanation cannot be reconciled with his defence at trial that he was never at the complainant’s apartment on 2 March 2018.
[40] I accept that Mr Chen must be given some latitude regarding the statements he made to the police having regard to the circumstances in which he found himself when interviewed. The interview took place many months after the incidents about which he was being interviewed and at a time when he had not had an opportunity to conduct any research into what he may have been doing at the relevant times. The fact that he
was being interviewed by the police may also have led to a degree of confusion on his part. Even making allowance for these factors, however, it is difficult to see how Mr Chen could have had such an apparently clear recall of the events about which he was being asked if he did not remember them.
[41] The fact that the complainant sent a barrage of messages throughout the day on 2 March 2018 is obviously consistent with Mr Chen’s evidence that he spent the day away from the apartment in the company of his parents. Importantly, however, the messages ceased between 6.07 pm and 7.30 pm. They then resumed. This is consistent with the complainant’s account that the argument occurred before he left the apartment to go out with his parents to dinner.
[42] The Judge would also have been entitled to take into account her conclusion that an incident involving a similar degree of violence by Mr Chen against the complainant had occurred on 19 February 2018, less than two weeks earlier. Furthermore, there are some similarities between the way in which Mr Chen sought to explain the aftermath of the earlier incident and how he sought to counter the complainant’s evidence on the later charges. The Judge had already determined that Mr Chen’s explanation for sending the apologetic WeChat messages on 19 February 2018 was untrue. Given his earlier explanation to the police about the incident on 2 March 2018 she clearly considered his evidence that he had never seen the complainant on that date was also untrue.
[43] Ms Cheung also placed considerable emphasis on the fact that the Judge stated that the WeChat messages Mr Chen had produced when he gave evidence were “selective” in nature.6 Ms Cheung suggested the Judge used this term in a pejorative manner, and this suggests she downplayed the significance of the messages when there was no basis for doing so. However, this submission assumes that the messages assisted Mr Chen in a meaningful way. In large part they relate to communications between the complainant and Mr Chen after he had returned to China with his parents. I do not consider they provide any meaningful assistance in determining what happened on 2 March 2018.
6 New Zealand Police v Chen, above n 1, at [64].
[44] Ms Cheung next submitted that, having rejected the version of events Mr Chen gave in evidence, the Judge was nevertheless required to consider whether the explanation he had given the police in January 2019 gave rise to a defence based on self-defence. It is well established that the prosecution must disprove self-defence beyond reasonable doubt even where the defence does not expressly rely upon it. That will only occur, however, where the trial Judge considers there is a credible evidential basis for the defence. The first step in considering whether the defence applies is generally to consider what the circumstances were as the defendant believed them to be.7 In the present case the evidence Mr Chen gave at trial expressly disavowed the correctness of the explanation he had given to the police during the interview in January 2019. There was therefore no credible evidential basis for the Judge to consider the issue of self-defence.
[45] Taking these factors into account I am satisfied the Judge did not err in her assessment of the evidence so that a miscarriage of justice has occurred in relation to the second set of charges.
The Judge’s refusal to discharge Mr Chen without conviction
Relevant principles
[46] An application for discharge without conviction is governed by s 106 of the Act, which relevantly provides as follows:
106Discharge without conviction
(1) If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
…
[47] In applying s 106, the Court must follow the guidance contained in s 107 of the Act. This provides:
107Guidance for discharge without conviction
7 R v Bridger [2003] 1 NZLR 636 (CA) at [18].
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.”
[48] A court considering an application for discharge under s 106 must consider three issues.8It must first assess the gravity of the offending having regard to the facts of the particular case. This exercise is not restricted to the aggravating and mitigating factors of the offending itself. Factors personal to the offender may also be relevant.9 Next, it must identify the direct and indirect consequences of a conviction being entered. In this context there must be a “real and appreciable” risk that any posited consequence will occur.10 Thirdly, the court must determine whether the consequences of a conviction would be out of all proportion to the gravity of the offending. There is a residual discretion not to grant a discharge but that will rarely be exercised where the statutory criteria have been met.
[49] An appellate court is required to reach its own view as to whether the direct and indirect consequences are out of all proportion to the gravity of the offending. If it accepts the statutory threshold has been met, the court must determine whether the court at first instance erred in principle when exercising its discretion to grant or refuse to grant a discharge.11
The Judge’s decision
[50] The Judge noted that the relationship between Mr Chen and the complainant was turbulent, with both parties being guilty of abusive conduct towards the other. This resulted in the police serving a protection order on Mr Chen. For her part, the complainant was served with a police safety order and also the trespass notice prohibiting her from approaching Mr Chen at his place of work.
[51] In assessing the gravity of the offending the Judge noted that Mr Chen was 30 years old and had no previous convictions either in New Zealand or elsewhere. She accepted the offending could be said to be out of character for this reason. However,
8 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16]–[17].
9 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27]; and DC (CA47/2013) v R
[2013] NZCA 255 at [35].
10 DC (CA47/2013) v R, above n 10, at [43]
11 Edwards v R [2015] NZCA 583 at [6].
she considered the weight to be given to this factor was lessened because Mr Chen had assaulted the complainant on two separate occasions, both of which had been in breach of a protection order.
[52] Furthermore, the Judge noted that Mr Chen had not undertaken any counselling or other rehabilitative steps since the offending occurred. In addition, although Mr Chen regretted not being well equipped to deal with the turbulent nature of the relationship, he accepted no responsibility for the offending. The Judge concluded this aspect of her decision as follows:
[11] This was offending on two separate occasions after the issue of a protection order. That is an important context as, clearly, the Family Court found good grounds to issue the protection order and it was not challenged. I am dealing with two assaults, not one, by somebody who clearly does not accept that he did assault his partner and has taken no steps to examine or address his own behaviours.
[12] In my view taking all those factors into account, I would assess the gravity of this offending as moderate. It is certainly not at the more serious end of any spectrum of this type, but it is by no means minor or insignificant. Against that assessment I have regard to the full consequences that you claim will result if convictions are entered.
[53] The consequences on which Mr Chen relied were, first, that a conviction would bring with it a very shameful stigma within the Chinese community. Secondly, the conviction will render Mr Chen liable for deportation and will impact adversely on his wife’s application for residence in New Zealand as he was her sponsor. Thirdly, the conviction may impact on Mr Chen’s ability to obtain employment if he is required to return to China. Finally, a conviction is likely to impact on Mr Chen’s ability to obtain further employment in New Zealand.
[54] The Judge accepted that there was evidence from Mr Chen’s current employer who described Mr Chen as being reliable and hardworking. His employer says that if convictions are entered he will not be able to take the risk of a negative impact on his business’s reputation and this means Mr Chen is likely to lose his job. It is also likely that he would find it difficult to find further employment in the hospitality industry with convictions of this type. The Judge did not consider there was any evidence before the Court regarding the impact that convictions would be likely to have on Mr Chen’s ability to find employment if he is required to return to China.
[55] The Judge acknowledged that Mr Chen will be liable for deportation if convictions are entered. This would also prevent his current wife from pursuing an attempt to gain residency in New Zealand.
[56] The Judge concluded that the consequences of conviction were not out of all proportion to the overall culpability of the offending for the following reasons:12
[22] Having regard to all of those factors I remind myself that you are 30 years old, you have been in New Zealand for the past 10 years undergoing study and work. I remind myself that there is no obvious remorse and that you have not undergone any form of intervention in terms of appropriate behavioural change. I remark that there is no support from the victim, but I place no weight on that in this particular case; it is a neutral factor but the point here is this is not a situation where you are in an intimate on-going relationship where the victim of your offending is your current partner. Further, and relevantly, I am satisfied that you have no nexus to New Zealand other than your time here. Your parents, your siblings and your wife all remain in China. I do not underestimate the benefit of your time in New Zealand to you, but this is not a situation where deportation would break up a family unit.
[23] I accept that you may regard a conviction as a permanent black mark but, as I said, that is an ordinary consequence felt by many who are convicted. I accept there may be some impact on future travel and employment in China, if you are returned, although there is no specific evidence before the Court. But I am not persuaded these factors, including the liability for deportation, are out of all proportion to the gravity of the offending. In my view, it is a matter in this particular case for the Immigration Service to determine your application for your residence status, and that of your wife, and I must assume that they will act fairly and rationally in doing so and I am also aware that you have a right of appeal, in any event.
Decision
The overall gravity of the offending
[57] As the Judge observed, the offending involved two aggravating factors. The first is that the assaults occurred on two separate occasions a short distance apart. The second is that they occurred in breach of a protection order issued by the Family Court in favour of the complainant. In addition, one of the assaults involved a blow to the complainant’s head and both caused actual bodily injury in the form of bruising.
[58] Factors that lessen the culpability of the offending include the fact that neither assault involved prolonged violence and neither resulted in serious injury.
12 New Zealand Police v Chen, above n 2.
Furthermore, the offending occurred in the context of a relationship in which both parties contributed to the discord that developed. It is not a case in which one party was responsible for physically abusing the other throughout the term of the relationship. There was ample evidence to confirm the complainant was responsible for harassing Mr Chen and inflicting physical violence upon him.
[59] The culpability of the offending is also lessened by the fact that Mr Chen has no previous convictions either in New Zealand or overseas. However, as at the date of sentencing it appears that he had not accepted responsibility or shown insight into and remorse for the offending. The entry of guilty pleas is often a factor that reduces the overall gravity of offending considerably but that is not a factor in the present case.
[60] I consider the Judge was correct to say that the offending did not fall at the more serious end of the spectrum for offending of this type but nor could it be described as minor or insignificant. The Judge assessed the overall gravity of the offending as moderate but I would assess it as being low to moderate having regard to the spontaneous nature of the assaults, the relatively low level of violence used and the lack of any lasting injuries.
The direct and indirect consequences of convictions being entered
[61] The direct and indirect consequences if convictions are entered comprise the stigma they will create for Mr Chen, the way in which they will impact on Mr Chen’s ability to obtain employment in the future and the fact that they will render him liable for deportation back to China.
[62] I do not underestimate the stigma that convictions for offending of this type may create but I consider this follows as a natural consequence of being convicted. In part it reflects the sentencing principles of deterrence, denunciation and the need to hold the offender accountable for the offending.
[63] I also accept there was evidence before the Court to the effect that Mr Chen will lose his employment as a restaurant manager and this is obviously a significant consequence if it occurs. Two factors persuade me the impact of convictions may not be as severe in this context as Mr Chen fears. First, his current employer plainly thinks
very highly of him. The offending has no connection with his employment and does not indicate an attribute such as dishonesty that would immediately preclude him from remaining in the hospitality industry. It therefore to be hoped that Mr Chen’s employer will reconsider his position and retain Mr Chen as an employee given the value he obviously brings to the business.
[64] Secondly, it is now a matter of record that the onset of the COVID-19 pandemic has resulted in far fewer workers from overseas being able to enter the country. This has created serious staffing issues for the hospitality industry. Mr Chen appears to have built up a good work record with his present employer. In the current environment I would be surprised if he could not find alternative employment if he loses his current position.
[65] The convictions will clearly mean that Mr Chen becomes liable for deportation. Deportation is not, however, automatic. Whether or not it occurs is likely to depend on how seriously those who administer the immigration legislation view the present offending. In making that assessment they will no doubt take into account the views expressed in both this Court and the District Court regarding that issue. They will also no doubt take into account the fact that Mr Chen has never sustained any previous convictions during the ten years he has been living in New Zealand or prior to that whilst he was living in China.
[66] Furthermore, as the Judge pointed out, Mr Chen still maintains close ties with China. His parents live there, as does his wife. Mr Chen went back there himself for several months shortly after the incidents that led to the present charges occurred. To the best of my knowledge he has no other relatives in this country. This is not a case in which an offender risks being deported to a country to which all real connection has been lost.
[67] Mr Chen expresses concern that the convictions may make it difficult for him to find employment in China if he is deported. I am unable to assess the validity of this concern because there is no evidence about it other than that given by Mr Chen. I would find it surprising, however, if a person with Mr Chen’s background and
experience in the hospitality industry could not find employment if he is forced to return to live in China.
Conclusion
[68] Taking these factors into account I consider the direct and indirect consequences of conviction are moderate to low. In other words, they are broadly commensurate with the overall gravity of the offending. This means that the Judge was correct to determine Mr Chen was unable to establish the required threshold to obtain a discharge without conviction.
Result
[69]The appeal against conviction is dismissed.
Lang J
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