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  different  Judge  presided  when  Ms Dai reappeared.

3      A reporting letter from a consultant psychiatrist is provided.  It may record Ms Dai’s reported

symptoms, but does diagnose depression with psychotic features.

[7]      Ms Dai expresses remorse, and apologises. A fuller affidavit was filed for the appeal.  Its admissibility is disputed.  I will put it aside for the moment in order to conclude the discussion of the sentencing exercise under appeal.   However, one aspect of the affidavit that can be used at this point is that it clarifies that Ms Dai in fact undertook two separate courses following the indication from the Court that she should do so.   One was a course about understanding and dealing with stress and anxiety.  The other was a counselling course entitled “Living without Violence”.  A report from this latter course was available at sentencing and indicated the writer’s assessment that positive benefits had been achieved.  I note this information at this point because the sentencing paperwork provided to the District Court, at least as I read it, did not make it clear that two separately focussed coursed had been successfully undertaken. The sentencing remarks do not refer to two courses.

[8]      Ms Dai has no previous convictions.

[9]      Finally it should be noted that there were three breaches whilst on bail for this offending.   The first breach involved her going to the victim’s building and yelling in an attempt to be able to talk to him.  Ms Dai desisted of her own motion and went straight to a police station to report her breach.  The second breach was a phone call to the victim (not answered).  The third incident was a repeat of the first. These three incidents occurred within a three week period of the event underlying the charges.  It was subsequent to these that Ms Dai pleaded guilty and attended the courses already described.

[10]     Also to be noted in this regard is that during her relationship with the victim there was an incident where she threw plates and was charged with wilful damage. The charges were withdrawn.

Sentencing

[11]     Written submissions were prepared for a sentencing in May.   It has been noted earlier that this did not proceed as the presiding Judge indicated a need for courses to have been completed before a discharge could be entertained.  As they predated the courses, the submissions did not develop this aspect.  The focus of the written submissions was instead on the possible consequences if the New Zealand

Institute of Chartered Accountants became involved following a conviction.  For reasons to be discussed I consider this focus was somewhat of a distraction from the key issue of gravity of the offending.

[12]     The sentencing Judge considered Ms Dai failed by a considerable margin to make out a case for a discharge without conviction.   Concerning gravity of the offence, the Judge noted:

(a)       the bail breaches;

(b)      previous incidents between her and the victim;

(c)       the offending was at the minor end of the scale; and

(d)      mental health issues. No conclusion on these was ventured.

[13]     Turning   to   consequences   the   Judge   noted   the   possibility   that   the New Zealand Institute of Chartered Accountants would look into a conviction, but also noted there can be no prediction as to the outcome.  It was noted a court ought not to conceal conduct from the appropriate statutory body.  It was considered there was no appreciable risk of Ms Dai not being able to work in her profession, and there were no other apparent consequences.  The application was dismissed but Ms Dai was discharged without any penalty being imposed.

Discussion

[14]     The appeal is brought on the basis that the District Court wrongly assessed both limbs with the consequence that the incorrect outcome was reached.   The approach on appeal is that a normal appellate process applies to the assessment required under s 107 of the Sentencing Act 2002, but that the decision under s 106, once s 107 is satisfied, is a discretionary one.  The s 107 inquiry is whether the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[15]     Assessing first the gravity of the offence, the Judge described the actual conduct as being at the relatively minor end.   This assessment is reflected in the decision not to impose any penalty other than the conviction, although it can be noted that the absence of any further penalty was also informed by the Judge’s assessment that individual deterrence was not an issue given the course Ms Dai had undertaken.

[16]     There are other factors that should be considered in relation to gravity of the offence.  Ms Dai is a first offender who clearly had mental health issues at the time. She was receiving medication for them but had apparently stopped taking it because it  was  affecting  her  ability  to  function.    Seemingly  she  had  not  obtained,  for whatever reason, targeted assistance for her mental health issues.  The courses she has now undertaken focus on her two areas of need – understanding the stressors that spark these situations, and developing techniques to control her reactions.

[17]     The views of the victim are relevant.   Caution is appropriate especially in domestic violence cases because there are many different factors that can underlie a victim’s expressed views. Also there are public interest factors that legitimately may direct a different response from that desired by the people involved.  That said, the victim here has in my assessment provided useful insight into both his experience of the offending and his knowledge of Ms Dai.   It is written from the perspective of someone who will not be having contact with her again, but who bears no animosity. The victim indicates that he did not feel threatened, and only engaged the authorities out of concern for Ms Dai’s state and an uncertainty as to what to do.  He maintained from the outset his position that there should be no charges.   This provides some insight into the gravity of the offending.

[18]     The Judge observed that there appeared little need for individual deterrence and I agree with that.  What the future might hold was obviously the concern of the first Judge to consider this when he deferred  hearing of the application so that Ms Dai might undertake these courses.  It is plain something had to change, and for that to happen Ms Dai had to obtain new skills and insight into the situation.

[19]     Notwithstanding  the  domestic  violence  context   and  that  some  injury (scratches) was caused, in terms of the s 107 analysis, I assess the gravity of the offence as low.  The relatively minor and brief nature of the assault is reflected in the victim’s own perceptions of the event, and is put into context by the mental health issues Ms Dai was experiencing.  It is relevant to the equation that steps have now been  taken  to  obtain  assistance  with  these issues.   Deterrence is  not  seen  as  a concern.

[20]     Turning to the consequences, there has been much focus on the possibility of action by the New Zealand Institute of Chartered Accountants.  By the time of the appeal this has become a reality with a complaint having been laid and a formal process being underway.   I have been provided with a summary of the complaints process and it is clear that a conviction is one event that may trigger the process.

[21]     In the present case I consider the role of the professional body is not a significant factor either in favour of a discharge or against it. I prefer to assess the application independent of this issue.  Why it should not influence the decision in favour of a conviction is because there is no suppression of Ms Dai’s name, or the facts.  This information is available for the professional body to act on as its Rules allow.  It may be that the body’s Rules require a conviction before it can act, but if so that is a consequence of a decision that a conviction is the triggering event. I do not consider a defendant should be deprived of an otherwise appropriate outcome for that reason. It may be that in a particular case the nature of the offending is such that the inability of a professional body to inquire into it would be a relevant factor, but that is not the case here.

[22]     Why the inquiry by the professional body should not act in favour of a discharge is because the question of whether Ms Dai’s actions reflect on her capacity to act as an accountant, or impact on her membership of the body, is properly a matter for the professional body.  Ms Dai’s exposure to that is a consequence of her

membership of it.4

4      For this reason courts generally, in relation to professional bodies, refrain from assuming what the consequences of a conviction will be, or from commenting on what they should be.   R v Foox [2000] 1 NZLR 641 at [39] (CA).

Conclusion

[23]     The resulting equation is not unfamiliar.  One has what is overall a relatively minor one-off incident. There are no reasons to consider it will happen again.  Better than that, the defendant has taken positive steps by way of targeted courses to guard against any repeat.

[24]     On the other side, despite every effort to elevate them, the reality is the consequences are only those that normally attach to a conviction.   There will be some impact on the defendant’s employment prospects but no evidence to say it will cause a loss of current employment.   It will be personally difficult for Ms Dai to grapple with having a conviction recorded, but the reality is that her name and actions are already in the public domain.   In the absence of any evidence from a professional, such impact cannot be thought to be more than transitory.

[25]     The statutory test of out of all proportion can only really be met in these circumstances by an assessment that the low level offending by a first offender should not be met by these ordinary consequences.  The domestic context is a factor against such an assessment, but is not an absolute bar.5   I am satisfied that given the gravity of the offending as I have assessed it, the ordinary consequences of a conviction would be out of all proportion. It was a brief event which caused the victim no distress. The offender was a first offender who had underlying mental health issues for which targeted assistance has now been given.

[26]     The appeal is allowed. The conviction is quashed and I make an order that

Ms Dai be discharged without conviction.

Solicitors:

V C Nisbet, Barrister, Wellington

Luke Cunningham & Clere, Crown Solicitors, Wellington

Simon France J

5      See for example R v Nash HC Wellington CRI-2009-488-000007, 22 May 2009.