Jing v Police
[2019] NZHC 2999
•18 November 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2019-404-0379
[2019] NZHC 2999
BETWEEN JIANQIAO JING
Appellant
AND
NEW ZEALAND POLICE
Respondent
Date of hearing: 18 November 2019 Appearances:
SNB Wimsett for Mr Jing
G J Fraser for the respondent
Judgment:
18 November 2019
ORAL JUDGMENT OF JAGOSE J
Solicitors/Counsel:
Samuel Wimsett Barrister, Auckland Meredith Connell, Auckland
JING v NEW ZEALAND POLICE [2019] NZHC 2999 [18 November 2019]
[1] Jianqiao Jing pleaded guilty to threatening to kill or do grievous bodily harm on 25 March 2019.1 He was sentenced to 40 hours of community work by Judge A J Fitzgerald in the District Court at Auckland on 16 July 2019.2 Mr Jing appeals against the Judge’s refusal to grant him a discharge without conviction, as he had sought.
Background
[2] Mr Jing lives in New Zealand on a permanent resident visa. The victim of his offending worked as a subcontractor on one of his building projects. Their relationship became strained. At approximately 10.15 pm on 1 October 2018, Mr Jing went to the victim’s address. Mr Jing verbally abused the victim and his partner when they opened their front door to him, before saying “[t]his time I came with my fists, next time I will bring a knife and I will kill you. I know where you live, you can’t get away”. The victim’s three-year-old daughter was present at the address. Mr Jing admitted to police he “said some bad things” but could not remember exactly what he said.
Judgment under appeal
[3] Mr Jing was entitled to be discharged without conviction only if the direct and indirect consequences of his conviction would be out of all proportion to the gravity of the offence.3 Only then may the sentencing judge decide if to exercise residual discretion. The proportionality test is a question of fact requiring judicial assessment. There must be a “real and appreciable” risk any given consequence will arise; this recognises the court is assessing future likelihood.4
[4] The Judge began by considering the gravity of the offending. He identified the charge was serious. Several aggravating factors were present, including the residential address of the offending, the specificity of the threat, and its continuing nature. The offending was “within the medium range”, but mitigated by various personal factors including Mr Jing’s guilty plea and his participation in restorative justice. The Judge acknowledged the “major consequence” of Mr Jing’s conviction was the risk of
1 Crimes Act 1961, s 306. Maximum penalty is 7 years’ imprisonment.
2 Police v Jing [2019] NZDC 13792.
3 Sentencing Act 2002, s 107; and Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142.
4 DC (CA47/2013) v R [2013] NZCA 255 at [43].
deportation,5 if that was what immigration authorities thought appropriate,6 but immigration consequences themselves were not out of all proportion to the gravity of the offending.7
Issues on appeal
[5] Mr Jing’s counsel, Sam Wimsett, says the Judge erred in his assessment of the gravity of the offending and in holding the consequence of deportation was not out of all proportion to the gravity of the offending. In particular, Mr Wimsett says supporting evidence as to the likelihood of deportation was not sufficiently considered.
Approach on appeal
[6] An appeal against a refusal to grant a discharge without conviction is an appeal against conviction and sentence.8 If Mr Jing can establish Judge Cameron was wrong, I will consider the matter afresh.9
Discussion
—gravity of offending
[7] I do not accept the gravity of Mr Jing’s offending only was low. Threatening to kill and/or cause grievous bodily harm, in however brief an altercation, carries a maximum penalty of seven years. Mr Jing made threats of serious violence – in wholly inappropriate response to some commercial dispute, however frustrating to him – at the victims’ home late at night. The threats were real. An accomplished martial artist, he was comprehended by the victims as having the capacity to carry them out. The victims’ fear remained evident even at the restorative justice meeting.
[8] Assessing the gravity of the offending requires consideration of aggravating and mitigating factors relating to both the offending and the offender.10 This is an
5 Police v Jing, above n 2, at [11].
6 At [13].
7 At [14].
8 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [9].
9 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13].
10 Rahim v R [2018] NZCA 182 at [15]; Z (CA447/2012) v R, above n 3, at [27]; DC (CA47/2013) v
R, above n 4, at [35]; and Waine v R [2017] NZCA 287 at [21].
evaluative, highly fact-dependent exercise.11 The Judge did not expressly reformulate his assessment of gravity after consideration of mitigating features. But he spent some time canvassing Mr Jing’s mitigating features; he clearly factored those features into his assessment of the offending’s gravity. He expressly noted Mr Jing was “entitled to credit” for the mitigating factors mentioned.12
[9] On balance, I characterise the offending as being of no more than moderate gravity, as the Judge also must have concluded in allowing ‘credit’ from his starting point “within the medium range”.
—consequences of conviction
[10] Mr Wimsett says conviction’s serious consequence of the threat of deportation was not adequately considered. He primarily relies on the expert opinion of Sen Mou Cheng, a barrister and solicitor practicing immigration law in Auckland, expressed in his affidavit sworn 29 April 2019 (but to which the Judge did not refer). Mr Wimsett points to the life Mr Jing has established for himself in New Zealand and argues the ongoing threat of deportation is a real and serious consequence.
[11] The Crown accepts Mr Jing is liable for deportation for up to 10 years,13 given the maximum penalty for his offending is over two years.14 Mr Jing has not yet received a deportation liability notice, but he remains liable for deportation regardless of when he is served.15 Mr Cheng opines a conviction would have the following ramifications:
(a)Mr Jing will become liable for deportation for up to ten years;
(b)once Immigration New Zealand is notified of the conviction, a deportation liability notice will be served on Mr Jing. Mr Jing will be given an opportunity to provide good reasons as to why deportation
11 Rahim v R, above n 10, at [16].
12 Police v Jing, above n 2, at [10].
13 Immigration Act 2009, s 167(1).
14 Section 161(1)(b).
15 Section 167(1). He remains liable for deportation “for a period of 10 years following the arising of the liability for deportation” (emphasis added).
should not be carried out against him; there is no guarantee of outcome;16
(c)should the Minister decide to deport Mr Jing, Mr Jing will have a right to appeal to the Immigration and Protection Tribunal. There is a risk his personal circumstances may not cross the legal threshold, which requires exceptionality; and
(d)if Mr Jing wishes to resist deportation, the process will be long and the costs significant.
[12] Mr Jing may yet be issued with a deportation liability notice.17 He wishes to apply for citizenship. Under s 169 of the Immigration Act, that application would be suspended while he remains liable for deportation. Deportation is not a foregone conclusion. The Minister may at any time, by written notice, cancel or suspend a person’s liability for deportation.18 But the Crown accepts there is a real and appreciable risk that the appellant may be deported if the deportation protocol is engaged.
[13] The reluctance of courts to intervene in the decision-making of specialist bodies such as Immigration New Zealand is most evident where the outcome cannot reasonably be predicted.19 Here, there is uncertainty when the deportation protocol will be engaged, if Mr Jing’s deportation liability would be cancelled or suspended by the Minister, and if any appeal rights could successfully be exercised. I “must assume that immigration authorities will behave fairly and rationally”.20 Presumably, Mr Jing’s lack of previous criminal convictions and established life here would be proffered for consideration on any decision concerning his continued residency.
16 Section 171(c).
17 Section 170.
18 Sections 172(1) and (2).
19 Rahim v R, above n 10, at [29].
20 Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011 at [24].
—proportionality analysis
[14] I recognise “there may be rare cases where the exposure to scrutiny by immigration services might itself give rise to consequences that are out of proportion” to the gravity of the offending,21 but that is not this case. The factors Mr Wimsett would have me take into account to avoid the risk of deportation should also be urged on immigration authorities in circumstances in which the risk (but not necessarily deportation itself) crystallised. Such suggests those factors more appropriately are addressed to the authorities deciding deportation than to me in seeking to avoid that decision. I should not pre-empt the authorities’ statutory role and considerations.
[15] Certainly the risk of deportation has tangible consequences in itself, including in the resultant uncertainty and expense incurred, but not out of all proportion with serious offending of the gravity here. That offending reflects Mr Jing’s deliberate departure from community standards, which makes the consequences of conviction all the more apposite for immigration authorities’ consideration.22
Result
[16]Mr Jing’s appeal is dismissed.
—Jagose J
21 Zhang v Police [2018] NZHC 285 at [32]; see also George v Police [2014] NZHC 1725 at [46].
22 A (CA747/10) v R [2011] NZCA 328 at [30], citing “for example similar comments made in R v Rollo CA1/04, 8 October 2004”; cf, Jeon v Police [2014] NZHC 66 at [21]: the defendant’s “momentary inadvertence result[ed] in a driving offence of moderate seriousness”; Kumar v Police [2015] NZHC 3293 at [26]–[27]: the defendant “understandabl[y] … ultimately snapped” after “a prolonged history of racial abuse directed by the victim towards [him]”.
0
5
0