Jo v Police - [2019] NZHC 1369

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2019-404-000106

[2019] NZHC 1369

BETWEEN
MINYOUNG JO

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 17 June 2019

Appearances:

J Yi for Appellant

R Ching for Respondent

Judgment:

17 June 2019

ORAL JUDGMENT OF VAN BOHEMEN J

Solicitors:
J Yi, Barrister, Auckland Meredith Connell, Auckland

JO v NEW ZEALAND POLICE [2019] NZHC 1369 [17 June 2019]

Introduction

[1] On 29 January 2019, the appellant, Minyoung Jo, was convicted in the District Court in Auckland after pleading guilty to one charge of injuring with intent to injure1 and one charge of intimidation.2 Judge Thomas imposed a sentence of reparations totalling $750.00 to the two victims with no further penalty. Judge Thomas declined Ms Jo’s application for a discharge without conviction.3

[2]Ms Jo appeals the refusal to discharge her without conviction.

[3] The grounds of Ms Jo’s appeal are that the District Court Judge made errors in assessing the gravity of the offending and in placing insufficient weight on the consequences of the convictions for Ms Jo, particularly with regard to Ms Jo’s employment and her ability to remain in New Zealand. As a result, the Judge erred in carrying out the disproportionality test required under s 107 of the Sentencing Act 2002.

[4] In support of her appeal, Ms Jo seeks leave to admit new evidence in the form of an affidavit affirmed on 12 June 2019 by Jessie Kexin Tang, Ms Jo’s employer.

[5] The police opposed Ms Jo’s application and oppose her appeal. They also oppose the admission of the affirmation by Ms Tang.

The facts

[6] In the early hours of 17 March 2018, Ms Jo, accompanied by a friend, let herself into the Auckland apartment of her former partner, Hyeongkeun Park. Ms Jo had separated some time earlier from Mr Park because he had begun a relationship with another woman, Gahee Song. Ms Jo had left some belongings at the address at Wakefield Street and she had retained a key for the apartment. Ms Jo gave no notice to Mr Park of her intention to visit.

1      Crimes Act 1961, s189(2). Maximum penalty of 5 years’ imprisonment.
2      Summary Offences Act 1981, s 21(a). Maximum penalty of 3 months’ imprisonment or a fine not exceeding $2,000.
3     New Zealand Police v Jo [2019] NZDC 159.

[7] Upon entering, Ms Jo went straight to the bedroom where she found Mr Park in bed with Ms Song. Ms Jo “essentially exploded” in the words of Judge Thomas. She grabbed Ms Song’s hair, dragging her from the bed to the floor. A scuffle ensued, during which Ms Jo bit Ms Song’s arm three times, causing the skin to break. Ms Jo’s friend dispossessed Ms Song of her phone, preventing her from calling the police. The scuffle ended when Mr Park separated the parties.

[8] Nine days later, at 11 am on 26 March 2018, Ms Jo sent Mr Park a text message…

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.

Continue reading Jo v Police

Details

AGLC: Jo v Police [2019] NZHC 1369
Case: [2019] NZHC 1369
Decision Date: 17 June 2019

CaseChat Overview and Summary

The appeal arises from the decision of Judge Thomas in the District Court in Auckland who refused to grant Minyoung Jo a discharge without conviction after she pleaded guilty to charges of injuring with intent to injure and intimidation. Ms Jo appeals that decision. Ms Jo contends that the District Court erred in assessing the gravity of her offending and in assessing the consequences of her convictions, particularly with regard to her employment and her ability to remain in New Zealand. She claims the District Court failed to sufficiently consider the consequences of the convictions on her employment and immigration status, particularly in relation to her employer’s values and potential loss of her employment. Ms Jo seeks leave to admit new evidence in the form of an affidavit affirmed by her employer. The police opposed Ms Jo’s application and opposed her appeal. They also opposed the admission of the affirmation by Ms Tang. The Court found that Ms Jo’s offending was appropriately classified as being at the lower end of moderate. The Court found that the consequences of Ms Jo’s conviction would not be out of all proportion to the gravity of the offending because Ms Jo’s employment at her current employer was not a necessary prerequisite to her continued residence in New Zealand. The Court found that the evidence provided by Ms Tang was not credible and did not warrant a different conclusion from that reached by Judge Thomas. The appeal was dismissed.

Orders