JIMIN HWANG AND THE KING
[2024] NZCA 681
•18 December 2024 at 4.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA577/2022 |
| BETWEEN | JIMIN HWANG |
| AND | THE KING |
| Hearing: | 14 November 2024 |
Court: | Thomas, Peters and Muir JJ |
Counsel: | Appellant in person |
Judgment: | 18 December 2024 at 4.00 pm |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Peters J)
Following a jury trial in February 2022 before Judge Hollister-Jones, the appellant, Mr Hwang, was convicted of arson. In September 2022, the Judge sentenced Mr Hwang to two years and eight months’ imprisonment.[1]
[1]R v Hwang [2022] NZDC 17790 [sentencing notes].
Mr Hwang now appeals against conviction and sentence, seeking to be discharged without conviction.[2] Mr Hwang did not seek a discharge at sentencing and indeed has served the sentence imposed on him. As it happens, the decision we have reached on the merits of this appeal make it unnecessary to address issues of jurisdiction which Mr Davie, counsel for the respondent, submitted might otherwise arise.
Background
[2]Sentencing Act 2002, ss 106 and 107.
Mr Hwang committed the offending in November 2018. We adopt the Judge’s description of what occurred:
[2] … You became involved with Taupō Sushi through your then partner who was working there. The business had been operating for about a year and it got behind in its rent. In the week before the fire, the tenant, Mr Baek, was taken into custody on immigration matters and the shop stopped trading. His elderly parents, who did not speak English, were sleeping in the shop.
[3] Taupō Sushi was facing problems on multiple fronts: from the Taupō District Council due to health issues with rotting food, from the landlord for back-rent and from Wade Construction who were the company that had installed the fit-out and had not been paid in full by Mr Baek.
[4] In the two days prior to the fire, you started advocating on behalf of Mr Baek and his elderly parents. You rang the representative of the landlord and after Wade Construction served legal papers on Wednesday, 28 October 2018, you started challenging their position. On Wednesday evening, Wade Construction chained up the front door and boarded up the rear door. The next day, which was Thursday, 29 October, in the morning, you went to the offices of Wade Construction and challenged their position, telling them you were going to talk to a lawyer.
[5] Wade Construction thought that you were raising these matters on behalf of Mr Baek’s parents. Later that day at the rear of the sushi store, you got into a confrontation with a representative of the landlord because you felt he was taking items he should not. This resulted in the police being called to keep the peace. You sent the following messages to the landlord’s representative. These were produced as exhibit A:
Hi Russell, your staff has taken few property and made mess at the location. I don’t know why you hired him. As a landlord you should prior notice to enter premises as contract also notice to evict. Thank you.
[6] Then in the early hours of 30 November 2018, your partner drove you to two service stations as you wanted to purchase methylated spirits. In the Caltex service station in Central Taupō, you picked up a bottle of methylated spirits off the shelf and went up to the attendant asking her, “Does this light fires?” Your partner then drove you to Tongariro Street and parked the car. You left the vehicle with the bottle of methylated spirits in your satchel. You first walked to the front of the store, looked in and then turned, walked around the corner and up the service alley that gave access to the rear. Whilst there, you broke the rear window of the sushi store, poured methylated spirits onto the bench and lit a fire there. You cut your hand whilst doing that.
[7] You then discarded the methylated spirits bottle into a nearby rubbish skip and walked back to the car. Your partner then drove you back to where you were living where you had your hand dressed.
[8] The fire quickly caught hold and Fire and Emergency New Zealand attended with their appliances. The first firefighters who entered the store found the heat to be so intense that they were told to retreat. Those firefighters were faced with toxic gases, intense heat and the risk of a roof collapse.
…
[11] As a result of this fire, the premises of Taupō Sushi and the neighbouring store were completely destroyed. The Crown have supplied financial information to the effect that the total loss was $2.7 million. That obviously is a large number, but the loss was also personal.
Sentencing
The Judge adopted a starting point of five and a half years’ imprisonment.[3] The Judge then made adjustments for the effects of Mr Hwang’s diagnosed autism spectrum disorder; hardship Mr Hwang could be expected to experience in prison; personal circumstances; remorse; and steps that Mr Hwang had taken towards rehabilitation.[4] All in all, the Judge reduced his starting point by 45 per cent on account of these matters.[5] The Judge then allowed an additional four months for the time Mr Hwang had spent on electronically-monitored bail.[6] This brought Mr Hwang’s end sentence to two years and eight months’ imprisonment.[7]
Legal principles
[3]Sentencing notes, above n 1, at [26].
[4]At [33]–[38].
[5]At [40].
[6]At [41].
[7]At [42].
The Court may grant a discharge without conviction if satisfied the direct and indirect consequences of conviction would be out of all proportion to the gravity of the offending.[8]
[8]Sentencing Act, ss 106 and 107.
The accepted course is to assess the gravity of the offending having regard to all relevant aggravating and mitigating factors; identify the consequences of conviction of which there is a real and appreciable risk; and determine whether those consequences are out of all proportion to the gravity of the offending.[9]
Submissions on appeal
[9]Z (CA447/2012) v R [2012] NZAR 599, [2013] NZAR 142 at [27]; and DC (CA47/2013 v R [2013] NZCA 255 at [43].
Mr Hwang’s appeal proceeded with the (considerable) assistance of Mr Simmonds KC. At Mr Hwang’s request, Mr Simmonds presented Mr Hwang’s legal submissions, following which Mr Hwang addressed us directly, giving a detailed account of the difficulties the conviction has caused him, and which it continues to cause him. The Court has also received an affidavit from Mr Hwang, and written and oral submissions from Mr Davie, for the Crown.
Assessment of the gravity of the offending
Although neither Mr Simmonds nor Mr Hwang sought to minimise the gravity of the offending, Mr Simmonds did ask us to consider whether, overall, the offending might not be as grave as it first appears.
Despite this submission, we are not persuaded that the offending can be considered anything other than extremely serious. The fire caused extensive property damage and consequential financial loss, being some $2.7 million in 2018, and so substantially more in today’s terms. Worse than that, the offending put lives at risk.
Direct and indirect consequences of conviction
Accordingly, the issue which arises is whether the direct and indirect consequences of conviction of which there is a real and appreciable risk are out of all proportion to the gravity of the offending.
The consequences advanced are as follows.
First, Mr Hwang has ongoing difficulties obtaining accommodation. The gist of Mr Hwang’s submissions on this point was that prospective landlords refuse his application to tenant their property as soon as they learn of his conviction.
Secondly, in the affidavit to which we have referred, Mr Hwang states he has found it difficult, bordering on impossible, to secure meaningful employment because of the conviction. This in turn has financial consequences. In short, it is difficult for Mr Hwang to support himself if he cannot obtain sufficiently well-paying employment.
Thirdly, Mr Hwang submits the conviction has adverse implications for his ability to travel, including to Korea where he was born and where members of his family are living.
Fourthly, the conviction has had an ongoing impact on Mr Hwang’s mental health. Whilst doing his best to make a fresh start, Mr Hwang is suffering from increased depression and ongoing post-traumatic stress disorder. By way of example, Mr Hwang cited to us his inability to complete a course of study at Auckland University of Technology in which he was enrolled in 2023.
Mr Davie made a number of submissions in opposition to Mr Hwang’s appeal. Mr Davie submits, correctly, that several of the consequences Mr Hwang advances should have been proved by affidavit evidence from a third party, which they have not been.
Mr Davie also drew our attention to additional convictions that Mr Hwang has accrued for dishonesty offending since his conviction for arson. Mr Davie submits that, because of this subsequent offending, Mr Hwang would suffer many of the consequences outlined above in any event.
There may be some merit in this last submission. However, it is fair to say that Mr Hwang’s dishonesty offending is significantly less serious than the arson and, although Mr Hwang did not say as much, might reflect the difficulties that he has experienced in obtaining employment.
Discussion
As it happens, we do not need to discuss Mr Davie’s submissions in any detail. The critical point is that, even if we accept Mr Hwang’s submissions as to the consequences of conviction, they are not out of all proportion to the gravity of the offending.
We can only repeat that this offending was extremely serious and the consequences of conviction that Mr Hwang has advanced, even if proved in the orthodox manner, do not come close to the level required to put a discharge without conviction in reach. Nor can we imagine circumstances in which those consequences would ever do so.
That said, there is a positive aspect to this appeal. Mr Hwang is making efforts to put this serious offending behind him, and to set himself up for the future. Mr Hwang’s account to us of his efforts in this regard was impressive, and we congratulate him. At age 30, it is still relatively early days for Mr Hwang. The more distant in time his conviction becomes, the more it is likely to be treated as an isolated, albeit serious, event. Accordingly, although this is not a case in which a discharge without conviction is an appropriate outcome, we encourage Mr Hwang to continue to apply himself as he is presently doing.
Result
The appeal is dismissed.
Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent
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