Dai v Police - [2015] NZHC 2907

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2015-485-000058 [2015] NZHC 2907

BETWEEN
SANDY ZHUJUN DAI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 3 November 2015

Counsel:

V C Nisbet for Appellant
S W P Woods for Respondent

Judgment:

20 November 2015

JUDGMENT OF SIMON FRANCE J (Appeal against conviction)

[1] Ms Dai appeals against the decision of the District Court to decline her application to be discharged without conviction on a Crimes Act charge of assault.1

Facts

[2] The summary of facts to which Ms Dai pleaded guilty records that she visited the building in which her ex-partner lives. It is said she demanded he come down to see her or she would yell and scream until he did. The victim came down.

[3] An argument ensued. The victim turned to leave. Ms Dai attacked him. It is said she punched him, kicked him and scratched him about the face, neck and hands. The police were called.

1 NZ Police v Dai [2015] NZDC 14671.

DAI v NEW ZEALAND POLICE [2015] NZHC 2907 [20 November 2015]

[4] For the purposes of sentencing, affidavits were filed by Ms Dai and the victim. The victim confirms that he did not wish to make a complaint and had summonsed the police only because he did not know how to stop her. Their relationship had ended some time ago because of her anger issues, but they had since gone out together as friends. The victim says at no stage did he feel threatened. He feels strongly there should be no conviction and that Ms Dai should be able to move on. The victim, who obviously knows Ms Dai well, is concerned about the effects of a conviction in terms of preventing Ms Dai from moving on, and improving her mental health.

[5] Ms Dai notes that she has since pleading guilty attended a course on understanding stress, anxiety and depression.2 Ms Dai records her mental health state. Ms Dai came to New Zealand from China when aged 21. She married here but that ended when her husband left for Sydney. Ms Dai describes herself as having suffered a psychotic breakdown at that time. She was prescribed medication which assisted.3 She recognises, however, that a combination of stress and her underlying depression and insecurity cause her to become angry.

[6] It was noted earlier that after her relationship with the victim ended, there was a hiatus followed by the couple going out together again as friends. Both deponents agree, however, that there was a misunderstanding. The victim viewed it as a friendship; Ms Dai saw it as something more and understood it to be the start of the relationship resuming. This was the background context to the outburst and
assault that underlies the charges.

2 When Ms Dai’s application for a discharge without conviction was first to be heard, the presiding Judge indicated that he would not consider it unless courses were undertaken. The sentencing was adjourned for that to happen. A…

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: [2015] NZHC 2907
Decision Date: 20 November 2015

CaseChat Overview and Summary

In the case of Dai v Police, the appellant, Sandy Zhujun Dai, appeals against the District Court's decision to decline her application for discharge without conviction on a charge of assault under the Crimes Act. The facts of the case reveal that Dai visited her ex-partner's residence, demanded he come down, and subsequently attacked him when he attempted to leave. The victim did not wish to press charges, and both parties had resumed their relationship as friends. Dai pleaded guilty and attended courses on understanding stress, anxiety, and depression, as well as a counselling course titled "Living without Violence."

The legal issues the court had to decide involved the gravity of the offence and the consequences of a conviction. The court had to consider whether the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence, as per section 107 of the Sentencing Act 2002. The court also had to consider whether the decision under section 106, once section 107 is satisfied, is a discretionary one.

The court found that the gravity of the offence was low, as the assault was relatively minor and brief, and the victim did not feel threatened. Additionally, Dai had taken positive steps by attending courses to guard against a repeat of the offence. The court also found that the consequences of a conviction would not be out of all proportion to the gravity of the offence, as the impact on Dai's employment prospects was not significant, and her name and actions were already in the public domain.

As a result, the court allowed the appeal, quashed the conviction, and made an order that Dai be discharged without conviction. The case highlights the importance of considering the gravity of the offence and the consequences of a conviction when deciding whether to grant a discharge without conviction.

Orders