Feng v Police
[2019] NZHC 2418
•24 September 2019
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2019-409-000065
[2019] NZHC 2418
BETWEEN SHAWN FENG
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 19 September 2019 Appearances:
J Lucas for Appellant
S Dayal for Respondent
Judgment:
24 September 2019
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 24 September 2019 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date: 24 September 2019
Introduction
[1] Shawn Feng pleaded guilty to common assault of his now ex-wife. Mr Feng sought a discharge without conviction. However, on 17 April 2019, Judge Kellar convicted Mr Feng and ordered him to come up for sentence if called upon.
[2] Mr Feng appeals his conviction on the grounds that the circumstances warranted a decision to discharge him without conviction.
FENG v NEW ZEALAND POLICE [2019] NZHC 2418 [24 September 2019]
Facts
[3] On 17 January 2018, Mr Feng and his now ex-wife got into a verbal dispute. He tried to grab her mobile phone from her. She resisted, pushing him away. He then punched her on the left side of the face. She pushed past him and ran to the front door. He grabbed her by the top of her shoulders and bottom of her neck to stop her from leaving. She sustained minor injuries.
[4] Mr Feng was originally charged with male assaults female and assault with intent to injure. He pleaded guilty when the assault with intent to injure was withdrawn and the male assaults female charge was downgraded to common assault.
District Court decision
[5] Mr Feng applied for a discharge without conviction. Judge Kellar set out the law on those applications. He noted that Mr Feng has no previous convictions and entered a guilty plea at a relatively early stage once the charges had been amended. He recorded that Mr Feng had attended a 16-session Stopping Violence course and had engaged well.
[6] In terms of consequences of the conviction, there was no evidence before the Judge that Mr Feng’s employment as a quantity surveyor would be in jeopardy should he be convicted. The Judge acknowledged that it may make gaining another job in future more difficult than it would be for someone without a conviction.
[7] Mr Feng also said a conviction may impede his ability to travel to China where he was born, although he is a New Zealand citizen now. The Judge said that Mr Feng’s parents and children both live in New Zealand. While there was no evidence that a conviction would create a bar to entry into China, the Judge was prepared to accept that it may create difficulties and there was some potential disadvantage to Mr Feng.
[8] In deciding whether the consequences of a conviction would be out of all proportion to the gravity of the offending, the Judge acknowledged that the offending was of low to moderate seriousness for an offence of this type. However, he was not satisfied that the consequences would be out of all proportion, so declined to discharge
him without conviction. Taking into account the mitigating factors of the offending and of Mr Feng personally, the Judge considered it appropriate to simply convict him and order him to come up for sentence if called upon.
Principles on appeal
[9] The Court may grant a discharge without conviction under s 106 of the Sentencing Act 2002 only if it is satisfied, under s 107, that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending.
[10] Appeals against the proportionality test under s 107 are by way of rehearing, with the appellate Court making its own assessment of whether the criteria are established.1 If a discharge without conviction should have been granted, then there will have been a material error by the sentencing Judge, or a miscarriage of justice will have occurred for any other reason, and so the appeal against conviction must be allowed.2
Admission of further evidence
[11] Mr Feng first seeks to have a new affidavit admitted as further evidence. Mr Lucas, for Mr Feng, submits that it is in the interest of justice to admit the affidavit, as it is sufficiently fresh and credible and touches on key issues relevant to the determination of whether a discharge without conviction should be granted. The Crown does not oppose the application.
[12] Mr Feng’s affidavit clarifies his parents’ situation, which the Judge had considered relevant in assessing the potential consequences of a conviction. The Judge understood that both Mr Feng’s parents lived in New Zealand. In fact, Mr Feng’s father moved back to China last month and his mother intends to join him early next year. As such, Mr Feng intends to return to China on a regular basis over the next few years, including with his children, to keep in touch with his family. His counsel sent
1 H v R [2012] NZCA 198 at [35]-[36].
2 Criminal Procedure Act 2011, s 232(2)(b) or (c); and Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [12].
a letter to the Chinese Consulate to get information on what effect this conviction would have on his ability to travel to China. He has not received a response.
[13] His affidavit also sets out more detail about Mr Feng’s employment and the possible effects of this conviction on it. He has been employed as a quantity surveyor for EQC for the last two years. While he will have to disclose the offending to the New Zealand Institute of Quantity Surveyors regardless of the outcome of this appeal, it appears that he will only have to inform his employer if he is convicted. That will likely trigger an investigation. Mr Feng says that he works with a number of clients, requiring trust and confidence in the relationship. He says he believes that “some of our clients may not trust a person with a violent criminal history”. He is concerned that he will be held back from engaging with new clients and being promoted. His role is project-based and people are generally made redundant if they are not assigned to a new project. He fears his conviction will affect his chances of being selected for a future project. He notes the job market for quantity surveyors is competitive.
[14] For further evidence to be admitted on appeal, it should be sufficiently credible and sufficiently fresh, in the sense that it could not have been obtained for the trial with reasonable diligence.3 If the evidence is credible but not fresh, the Court should assess its effect on the safety of the conviction. If there is a risk of a miscarriage of justice if the evidence were excluded, the evidence should be admitted.
[15] Mr Feng’s affidavit is, in part, fresh, in the sense it updates the Court on where his parents are currently residing or plan to reside in the future, although much of what it covers could have been presented at the first hearing. It also provides further detail about his employment which is of assistance in understanding the potential consequences of a conviction and in correcting and updating the information about where Mr Feng’s parents live and intend to live in the future. The information is necessary to fully understand the consequences of a conviction.
[16]For these reasons, and in the absence of opposition, the affidavit is admitted.
3 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].
Submissions
Appellant’s submissions
[17] Mr Lucas, for Mr Feng, first submits that the Judge erred in not articulating an initial grading of the seriousness of the offending, before moving on to assess wider considerations like Mr Feng’s personal circumstances. He submits that the Judge did not give Mr Feng’s personal circumstances appropriate weight, including Mr Feng’s gaining of citizenship and profession, his age and lack of criminal history, the context of the offending, his attending a Stopping Violence course, his willingness to undertake restorative justice, and his prompt guilty plea once the charges were amended.
[18] Mr Lucas cites the recent decision in Mathieson v Police, where the Court of Appeal criticised the District Court’s approach of appearing to relegate the consideration of mitigating personal circumstances to the assessment of a penalty, rather than including them in the assessment of the overall gravity of the offending.4
[19] Mr Lucas submits that this was a one-off event during a highly stressful time, committed by a professional, intelligent man of otherwise good character, who has since undertaken prolonged rehabilitation, has shown remorse, and is at low risk of reoffending.
[20] In terms of consequences of a conviction, Mr Lucas stresses the potential effect on Mr Feng’s current and future employment, and his consequential ability to provide child support, and the potential effect on his ability to visit his family in China.
Respondent’s submissions
[21] Ms Dayal, for the Crown, submits that the Judge was correct to refuse to grant a discharge without conviction. She submits the Judge’s assessment of the gravity of the offending as low to moderate was correct and took into account the broader relevant considerations, including mitigating factors relating to Mr Feng personally. The Judge had all the necessary information before him to make that assessment.
4 Mathieson v Police [2019] NZCA 406 at [14]-[16].
Ms Dayal notes the Court of Appeal’s comments on the seriousness of domestic violence in Solicitor General v Hutchison, calling it “one of the scourges of New Zealand society” and highlighting the inherent breach of trust.5
[22] Ms Dayal submits that the consequences of a conviction claimed by Mr Feng are speculative. She notes that Mr Feng is obliged to inform the New Zealand Institute of Quantity Surveyors of his offending regardless of the outcome of this appeal. There is no independent evidence corroborating any of Mr Feng’s other concerns about his current and future employment. She submits that it is not the function of the courts to pre-empt decisions by employers about the suitability of prospective employees.6 In relation to Mr Feng’s submission that a conviction will affect his ability to travel to China, Ms Dayal says that submission alone, without more, does not reach the threshold of a real and appreciable risk of that consequence eventuating.
Analysis
[23] The approach to applications for a discharge without conviction under s 106 of the Sentencing Act requires consideration of three factors:7
(a)the gravity of the offending, including both the seriousness of the actual offending and of the aggravating and of mitigating factors relating to the offender;
(b)the direct and indirect consequences of a conviction; and
(c)whether those consequences are out of all proportion to the assessed gravity of the offending.
[24] Mr Feng considers that the District Court Judge only took the mitigating factors relating to him personally into account when assessing the penalty, and not at the first stage of assessing the gravity of the offending. He submits that if the Judge had taken those factors into account at the appropriate stage, the Judge’s assessment of the
5 Solicitor General v Hutchison [2018] NZCA 162, [2018] 3 NZLR 420 at [26]-[27].
6 Graham v Police [2018] NZCA 172 at [29].
7 Z v R [2012] NZCA 599, [2013] NZAR 142; Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620.
offending as of “low to moderate seriousness” would have been changed to “very low”.
[25] In support of this submission he refers to the Court of Appeal’s decision in Mathieson where, after setting out the mitigating factors relating to the appellant, the Court noted:8
[16] We do not consider it possible for a proper consideration of these factors not to have resulted in a significant reassessment of the overall gravity of the offending. In terms of the observation made by the High Court, we observe such a reassessment does not constitute a recharacterisation of the seriousness of the offending. They are two different evaluations, reflecting the two steps inherent in the first stage of the s 106 assessment discussed above… The first is an initial grading of but one aspect of the case – the actual offending; the second evaluation is a much broader analysis of all relevant considerations, including the actual offending. That the overall assessment of gravity is lower than the narrower assessment of the offending merely reflects that at the second step within the gravity assessment there are positive mitigating factors to also consider.
[26] However, the point which is made in Mathieson is that the assessment of the gravity of the offending must take into account not just the actual offending, but all the relevant considerations, including the mitigating factors relating to the offender.
[27]In my view, this was clearly understood by the Judge when he said:
The first thing I have to do is make an assessment of the overall gravity or seriousness of the offending, having regard not only to the circumstances of the offence itself but also to your personal situation.
The Judge then went on to discuss both the offending itself and Mr Feng’s personal situation including his absence of prior convictions, that he entered an early guilty plea and he participated in the Stopping Violence course in which he “engaged well”. For these reasons, I am satisfied that when he assessed the gravity of the offending as “low to moderate” he had clearly undertaken the overall assessment which was required in Mathieson.
[28] In my view, his assessment was correct. There are significant mitigating factors relating to Mr Feng, which have been canvassed. His attending and engaging
8 Mathieson v Police, above n 3.
well in the full 16-session Stopping Violence programme is particularly commendable. However, I also note his wife’s comments in her victim impact statements that she has never heard him say sorry, that he treats her “unfriendly” after she obtained a protection order against him, and that she is still scared of him.
[29] Turning to the second stage of the assessment, Mr Feng’s evidence and Mr Lucas’ submissions identify potential indirect consequences of a conviction, but nothing concrete. Mr Feng must though only establish that there is a “real and appreciable risk” of adverse consequences ensuing.9
[30] It is likely that Mr Feng will travel to China on a semi-regular basis, particularly now the Court understands that both his parents will be living there from early next year. However, speculation about travel restrictions will not in themselves be sufficient to justify a discharge without conviction. As the Court of Appeal has stated:10
[25] It does not follow, however, that a court will permit an applicant to speculate about matters of present fact, in which we include any existing travel restrictions that are said to preclude travel. Proof of these matters may require expert evidence if they are not agreed and cannot be established in any other way.
[26] It seems to us, speaking generally, that a court will ordinarily expect to be satisfied that under the law and practice of the jurisdiction concerned:
(1)the conviction must be disclosed but, assuming a discharge is given, the fact that the offence was committed need not be; and
(2)in consequence of the conviction, the applicant is prima facie inadmissible, and for how long; and
(3)there is no alternative entry process available or that, if there is, such process is unreasonably difficult and uncertain in all the circumstances.
[27] If all of these things can be established, a sentencing court must further be satisfied that the offence is not so serious that it would be wrong to allow the applicant to present himself or herself to foreign immigration authorities without disclosing it.
9 DC v R [2013] NZCA 255 at [43].
10 Edwards v R [2015] NZCA 583.
[31] Mr Feng has not been able to establish these requirements, although I acknowledge his counsel’s unanswered letter to the Chinese Consulate seeking information. The High Court has, on multiple occasions, dismissed similar submissions as there is no evidence that a conviction would necessarily affect a person’s ability to travel to China.11
[32] Similarly, Mr Feng’s submissions about the effect the conviction may have on his employment do not identify a “real and appreciable risk” of adverse consequences. It is common sense that there are potential future employment consequences for a person with a conviction. Mr Feng has deposed that his employer will begin an investigation should his conviction stand. However, Mr Feng will have the opportunity to be heard and explain the context of the offending during that investigation and it can be expected that the Court’s decision to impose no other penalty than the conviction itself would be taken into account in assessing its lack of relative seriousness. Finally, Mr Feng is obliged to disclose his offending to his professional registration body even if he is discharged without conviction. The other submitted consequences, such as a possible loss of trust with his clients and possibly being prioritised for redundancy in his employer’s restructuring, are entirely speculative.
[33] In all the circumstances, the potential consequences of a conviction for common assault that Mr Feng has identified are those that flow naturally from a conviction for his offending and although they will create some hurdles for Mr Feng, including when travelling, they do not reach the high threshold of being out of all proportion to that offending.
Conclusion
[34] I am not satisfied that the consequences of the conviction are out of all proportion to the gravity of the offending. The appeal is dismissed.
Solicitors:
Public Defence Service, Christchurch Raymond Donnelly & Co., Christchurch
11 For example, Withington v Bay of Plenty Regional Council [2018] NZHC 1237; Yang v Ministry of Business, Innovation and Employment [2017] NZHC 1673.
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