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 appellant’s ability to gain New Zealand citizenship. The Judge said:3

Your counsel has referred to the possible consequences as being delay of an application on the one hand through to rejection of your application [for citizenship] at the other end of the scale.   There is, however, no evidence before me which substantiates any of that.  There is nothing before me that says that your application for citizenship would be unduly affected by a conviction for dangerous driving causing injury.  There is nothing before me that says your application would necessarily be delayed.

[6]      The two further grounds that had been advanced were the impact on the appellant’s freedom of overseas travel and the impact of mandatory disqualification on the appellant’s employment.   The Judge observed that there was no evidence suggesting  that  travel  would  be  impeded  by  conviction.    The  consequences  in relation to driving for employment purposes were not seen as significant because of the availability of public transport.

[7]      The Judge consequently concluded under s 107 that there was no evidence before him of consequences of a conviction that would be out of all proportion to the gravity of the offence.  He effectively concluded that there was no evidence of any significant consequences at all.

Submissions

[8]      For  the  appellant,  Ms  Hwang  (who  had  not  appeared  as  counsel  in  the District Court) firstly emphasised the Judge’s conclusion that overall the gravity of the offence was moderate.  At the heart of her submission on consequences, and at the heart of the appeal, was a submission that the Judge’s attention had not been drawn to s 161 of the Immigration Act 2009.  This provides that conviction in this case would render the appellant liable for deportation.  It is not in issue that that is the case.   In addition this would mean that s 167 of the Immigration Act applies.

Section 167(1) provides that a person, such as the appellant, if convicted, would

3 At [6].

“remain liable for deportation for a period of 10 years following the arising of the

liability for deportation”.

[9]      The possible impediment to travel was not a matter that was pressed to any extent.   Ms Hwang did submit that disqualification from driving does have a significant adverse consequence.   In substance this is a submission of changed circumstances.  When the application was made in the District Court the appellant was employed as a chef and the Judge concluded, and understandably so, that the appellant was able to get to his job on public transport.  Since then the appellant and his wife have established a cleaning business.  They live in Greenlane in Auckland, but their work is on the North Shore in Auckland.  Since the offence the appellant’s wife has obtained a driver licence, but the further evidence put before this Court (and which I do consider is appropriately admitted) indicates that she is very tentative about driving because of the accident.

[10]     For the respondent, Ms Cameron did not seek to argue that the overall gravity of the offence should be assessed differently from the assessment by the Judge.  She did submit that the consequences  in relation to  travel  and disqualification from driving were not consequences of any relevant significance. As to the effect of s 161 of the Immigration Act, the essence of Ms Cameron’s submission was that this is a matter which is properly left to the assessment of the Minister of Immigration and, to the extent applicable, to the processes administered by the Immigration Service.  Ms Cameron helpfully referred me to a number of cases dealing with this issue – that is to say, applications under s 107 of the Sentencing Act where consequences referred

to are consequences under the Immigration Act.4

4      M v Police [2013] NZHC 1101 at [58]-[62]; A v R, Y v R [2001] NZCA 328; Wang v Police HC Auckland CRI-2008-404-316, 23 March 2009; Kropelnici v Police HC Wellington CRI-2007-

485-63, 17 March 2008. See also: R v Foox [2000] 1 NZLR 641 at [39]; Mu v Police CA262/03,
24 October 2003 at [15] and [28]; Liang v Police HC Wellington AP38/02, 16 April 2003 at [18]
and [21]; and Lee v Police HC Auckland CRI-2005-404-28, 27 July 2005 at [20].

Discussion

[11]     As Ms Cameron submitted the question under s 107 does not involve an appeal in relation to exercise of a discretion.  The principles outlined in the Austin Nichols case apply.5

[12]     The gravity of the offence, as that  expression is used in s 107, is to be assessed in the way it was assessed by the Judge, by having regard not only to the facts of the offence itself, but also to all other relevant factors that would be taken into account on sentencing.  I agree with the conclusion by the learned District Court Judge that the gravity of the offence is properly described as moderate.  The act – going through the stop sign – itself was dangerous.  And there were consequences which were reasonably serious.  But, as often is the case with driving offences, it was something which arose out of a moment’s inadvertence.  There is the range of what may be described as other mitigating factors referred to by the Judge and it is, in this case, not insignificant that the principal victim was, and in fact remains, the appellant’s wife.   Ms Hwang’s submission that the appellant’s wife supports his application for discharge without conviction may readily be accepted because it is an outcome which would have beneficial consequences not just for the appellant, but also for his wife and indeed, no doubt, also for his daughter.  There were adverse consequences for the driver of the truck but these cannot be assessed as particularly significant.  In this regard, and in respect of the appellant’s remorse, it is relevant to record part of his affidavit:

I was terrified at having injured a stranger that I continuously apologised to the truck driver and went with him to the hospital via ambulance.   In the ambulance I was crying and told him that it was “all my fault” and that I was “so sorry”.  The truck driver told me “don’t worry, it’s only an accident” and tried to assure me.

[13]     I am satisfied that the possible consequences in relation to travel are not a factor to be given any weight.  In terms of the s 107 exercise I am also satisfied that it is not appropriate to take into account the possible adverse consequences of being

disqualified from driving.  This is because under s 106, even if there is a discharge,

5      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141.

there can be disqualification.  However, the consequences of ss 161 and 167 of the

Immigration Act are in a different category.

[14]     Ms Cameron submitted that the Judge had in effect been directed to the possibility of deportation under s 161.   Part of the written submission filed in the District Court for the appellant can be interpreted that way, but it is not obvious. The emphasis does seem to be on questions of citizenship, not on the risk of deportation

– the effective risk of removal of the residency entitlement.  The judgment makes sufficiently clear that the possible effect on an application for citizenship was the only immigration matter – if it can be described as an immigration matter – to which the Judge directed himself.

[15]     Given this factor I am satisfied that it is appropriate that the s 107 exercise be independently assessed on this appeal and I now proceed to that.

[16]     I agree that the gravity of the offence is appropriately described as no more than moderate.  The factors that lead me to this conclusion are sufficiently described above.

[17]     In relation to consequences, as I have also indicated, Ms Cameron helpfully referred me to numbers of cases dealing with immigration consequences.   These cases, and the others earlier noted, indicate that, generally, immigration matters are appropriately left to the Minister of Immigration.  Some cases refer to the need to avoid the Courts’ usurping the Minister’s powers.  This requires me to proceed with caution in determining whether the consequence in relation to ss 161 and 167 are in this case sufficiently disproportionate to the gravity of the offence to justify consideration of discharge without conviction.

[18]     Ms Hwang, whilst noting the thrust of the cases, submitted that there are two important points of distinction in relation to most if not all of the cases referred to by Ms Cameron.  The first point is that the other cases involved applicants for discharge from conviction who were seeking visas or permits of one sort or another.  In this case the consequence is the risk of removal of an established status; that is to say, the

risk that the appellant’s now established residency status will be removed.  That is a

point of distinction.

[19]     The other point of distinction is that, in Ms Hwang’s submission, the gravity of offending in the other cases was more serious.  In broad terms I agree with that submission.  Without seeking to analyse each case, which is unnecessary, those other cases do involve more serious criminal behaviour and generally criminal behaviour involving  calculation  or  premeditation  of  varying  degrees.     Those  sorts  of aggravating factors are not present here.

[20]     Notwithstanding the observations by the Court of Appeal and in other cases in this Court, there will be cases where the s 106 discretion should be exercised and the matter therefore not left for determination by the Minister of Immigration.  If that were not so, as Ms Cameron responsibly acknowledged, the Court would otherwise abandon its duty to weigh matters under s 107 and then, where appropriate, assess exercise of the discretion under s 106.

[21]     In this case, moreover, I do not see it as a question of usurping the Minister’s functions.   It is a question in this particular case as to whether this momentary inadvertence resulting in a driving offence of moderate seriousness, and assessed against an otherwise exemplary life, should have the automatic consequence of the risk of deportation hanging over this man and his family for possibly up to 10 years. Assessing these sorts of consequences are matters which come firmly within the scope of matters assessed by the Courts rather than matters assessed by a Minister of the Crown under the Immigration Act.   Putting this another way, this is not an assessment, or an attempted assessment, of the outcome of a referral to the Minister under s 161; it is a direct assessment of the direct consequence of a conviction.  A significant impact on this appellant and, importantly, on his family that already exists will be materially added to as a direct and immediate consequence of the entry of a conviction.

[22]     Because of the way in which the matter was argued in the District Court these

significant consequences were not drawn to the Judge’s attention.

[23]     As I indicated a short while ago these matters need to be assessed with care. Having done so, and for the various reasons outlined, I am satisfied under s 107 of the Sentencing Act that the consequences of a conviction in this particular case would be out  of all  proportion  to  the gravity  of this  particular offence by this particular offender. As a consequence it is open in my judgment to consider exercise of the discretion under s 106.   Essentially for the reasons already discussed I am satisfied that the discretion should be exercised and that the appellant should be discharged without conviction.

[24]     Ms Hwang boldly submitted that if there is discharge without conviction there should also be no disqualification from driving.  I am in no material doubt that disqualification from driving should remain notwithstanding a degree of difficulty that may arise for the appellant and his wife.  If there is discharge without conviction it is generally not possible for a Court to impose what might in a broad sense be regarded as a penalty.  However, s 106(3)(c) provides that if there is a discharge the Court may make any order that the Court is required to make on a conviction.  On a conviction, as the Judge held, the appellant was liable to a minimum period of disqualification in excess of 1 year.  The significance of the appellant’s inadvertence in his driving does need to be driven home.  The disqualification that arose on the conviction should in my judgment be imposed on the discharge without conviction. The Court can also order reparation notwithstanding discharge.

Result

[25]     The conviction is set aside.

[26]     There are orders under s 106 of the Sentencing Act: (a)           discharging the appellant without conviction;

(b)ordering the appellant to pay emotional harm reparation of $1,500 to the driver of the other vehicle;

(c)       disqualifying the appellant from holding or obtaining a driver licence for a period of 1 year and 1 day with the disqualification commencing

on 11 July 2013.   The commencement of the disqualification on 11

July 2013 is on the basis that the order made in the District Court for disqualification was not suspended following the appeal.  If the order was suspended the commencement of the disqualification date will be

adjusted appropriately and counsel should file memoranda.

Woodhouse J