Jeon v Police - [2014] NZHC 66

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2013-419-50 [2014] NZHC 66

BETWEEN SUNG UN JEON Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 4 February 2014

Appearances: T A Hwang for the appellant
S N Cameron for the respondent

Judgment: 4 February 2014

ORAL JUDGMENT OF WOODHOUSE J

Solicitors:
Ms S A Hwang, Queen City Law, Solicitors, Auckland
Ms S N Cameron, Almao Douch, Office of the Crown Solicitor, Hamilton

JEON v POLICE [2014] NZHC 66 [4 February 2014]

[1] This is an appeal primarily against refusal to discharge without conviction after the appellant pleaded guilty to one charge of dangerous driving.1 On conviction the appellant was disqualified from holding or obtaining a driver licence for 1 year and 1 day and ordered to pay reparation of $1,500 to the driver of the other vehicle involved in the accident which occurred. There was also an order to pay costs.

[2] The offence occurred on a road near Morrinsville when the appellant was returning from a visit to Hobbiton with his wife and teenage daughter. The appellant failed to stop at a stop sign on a side road. He drove at a moderate speed – estimated in the summary of facts at between 30 and 40 kilometres an hour – through the stop sign. There was a collision with a truck. The truck driver received moderate injuries. The appellant’s wife received more serious injuries with a fracture of a vertebra and fractures of two ribs and some other injuries. The appellant received minor injuries. Both vehicles were badly damaged.

[3] The appellant, at the time of the offence in November 2012, was aged 46. He, his wife and his daughter are immigrants from Korea. They have lived in New Zealand for 4 years. The appellant, his wife and daughter now have residency visas
– that is to say, permanent resident status.

The District Court decision

[4] The Judge directed himself to the balancing exercise under s 107 of the Sentencing Act 2002. In relation to the gravity of the offence he noted the consequences of the offence as serious. He said that the appellant’s actions in driving through the intersection without stopping were dangerous. That was particularly so as there was a hedge obscuring the view for the appellant of the other road and also obscuring the truck driver’s view. However, assessing all matters, in
terms of the Court of Appeal’s decision in Z v R,2 the Judge considered the gravity of

the offending was moderate. He referred to the consequences from the injuries to the
appellant’s wife, genuine remorse, otherwise good character, an offer of reparation, and a guilty plea at an early opportunity.

1 Police v Jeon DC Morrinsville CRI-2013-039-71, 10 July 2013.
2 Z v R [2012] NZCA 599.

[5] In relation to possible consequences of a conviction the Judge discussed three factors that had been referred to him by counsel then acting for the appellant. The first was a submission that conviction may affect the…

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: [2014] NZHC 66
Decision Date: 4 February 2014

CaseChat Overview and Summary

In the case of Jeon v Police, the appellant, Sung Un Jeon, appealed against the refusal to discharge without conviction after pleading guilty to one charge of dangerous driving. The incident occurred when Jeon failed to stop at a stop sign and collided with a truck, resulting in moderate injuries to the truck driver and more serious injuries to Jeon's wife. The District Court found the gravity of the offence to be moderate and did not consider the potential consequences of a conviction, such as the impact on Jeon's immigration status, to be disproportionate to the offence.

The legal issues before the court were whether the District Court correctly assessed the gravity of the offence and whether the consequences of a conviction, particularly the risk of deportation under the Immigration Act 2009, were disproportionate to the gravity of the offence. The court had to determine if the District Court should have considered the risk of deportation as a consequence of the conviction under section 107 of the Sentencing Act 2002.

The court found that the District Court had correctly assessed the gravity of the offence as moderate, taking into account the dangerous nature of Jeon's actions and the resulting injuries. However, the court also found that the District Court did not appropriately consider the consequences of a conviction under the Immigration Act, specifically the risk of deportation and the potential removal of Jeon's residency status. The court held that these consequences were sufficiently disproportionate to the gravity of the offence to warrant a discharge without conviction. The court also found that disqualification from driving should remain despite the discharge without conviction, as it was a necessary consequence of the conviction.

The final orders of the court were that the conviction was set aside, Jeon was discharged without conviction, he was ordered to pay emotional harm reparation of $1,500 to the truck driver, and he was disqualified from holding or obtaining a driver licence for a period of 1 year and 1 day.

Orders