Jo v Police
[2019] NZHC 1369
•17 June 2019
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 in Korean which said:
If you do not want to see the blood again from that crazy bitch who you love to death, then do not let her in the house. Do not know when I will be there again.
[9] The following day, at 8.42 am on 27 March 2018, Ms Jo sent a further text message, also in Korean, to Mr Park saying:
want to kill you and that woman many times throughout a day. Or make disabled on arm or a leg [and] make [you] suffer forever. I have so much pain in my heart. I cannot even breathe well, do not even know what to do.
[10] As a result of the assault, Ms Song suffered bruising under her left eye, bite marks on her left arm, minor bruising to her right arm and pain to her stomach and shoulders.
[11] Ms Jo pleaded guilty to the charges of injuring with intent to injure and intimidation. She subsequently applied for a discharge without conviction pursuant to s 106 of the Sentencing Act 2002 but noted this application was refused by Judge Thomas.
District Court decision
[12] In considering Ms Jo’s application, Judge Thomas applied the Court of Appeal’s decision in Z v R which sets out the steps to be followed when considering whether to grant an application for discharge without conviction.4 This entailed an assessment of the gravity of the offending, the identification of the consequences of
4 Z v R [2012] NZCA 599, [2013] NZAR 142.
the convictions, and an assessment of whether the consequences of the conviction were out of all proportion to the gravity of the offending.5
[13] Judge Thomas assessed the gravity of the offending as being at the low end of moderate. He reached that conclusion after considering the seriousness of the offence and the particular circumstances of Ms Jo’s offending as well as the factors that reduced Ms Jo’s blameworthiness.
[14] Judge Thomas identified the consequences of the offending as including a risk that the appellant would lose her employment, and that she would be unable to obtain residency and remain in New Zealand. The Judge accepted that if Ms Jo were convicted it would be harder for Ms Jo to satisfy her employers that she would be a good employee and harder for Ms Jo to satisfy immigration officials that she should be granted residency in New Zealand. However, the Judge did not consider that these consequences were out of all proportion to the gravity of the offending. Accordingly Judge Thomas considered he must decline Ms Jo’s application for a discharge without conviction.
Submissions for Ms Jo
[15] Mr Yi for Ms Jo says the Judge erred when conducting the balancing test under s 107 by failing to place sufficient weight on the relevant mitigating factors. Mr Yi also submits that the Judge erred in placing the offending at the low end of moderate and says the offending is more appropriately classified as being of low gravity, especially when considering the overall factual matrix, early guilty pleas, the expression of remorse, the undertaking of a violence programme, the previous lack of convictions, and prior good character.
[16] Mr Yi also seeks leave to admit new evidence from Ms Jo’s employer, Ms Tang, which, he submits, should lead the Court to find that there is a real and appreciable risk that the convictions would have the consequence of Ms Jo losing her employment and that the loss of her employment would lead to the loss of her opportunity to apply for her residence visa and, as a result, Ms Jo would have to return
5 At [21].
to the Republic of Korea. As such, Mr Yi submits that the consequences of the conviction would be out of all proportion to the gravity of the offending.
Submissions for NZ Police
[17] The police oppose the admission of Ms Tang’s affidavit which, Ms Ching for the police, says lacks veracity, has little probative value and should not be admitted as fresh evidence. Ms Ching notes that Ms Jo has been able to retain her current employment following the disclosure of her conviction and says that while Ms Tang says Ms Jo’s employment contract would not be renewed if her conviction remains, that does not explain why the fact of a conviction would mean Ms Jo’s employment contract could not be renewed. Ms Ching also says that even if Ms Jo’s contract were not renewed, there is no evidence to suggest Ms Jo could not obtain employment at a comparable restaurant in Auckland and notes that Ms Jo had only transferred to Ms Tang’s restaurant from another restaurant in September 2018.
[18] Ms Ching submits that Judge Thomas did not err in assessing the gravity of the offending and says that the Judge took into account each of the relevant factors and was correct in his conclusion that the offending was on the low end of moderate. Ms Ching submits that the offending cannot be classified as being of low gravity as it involved actual violence, unlawful entry into a dwelling place, the aid of an associate and the presence of multiple vulnerable victims.
Approach to appeal
[19] Under s 106(1) of the Sentencing Act, the court has a discretion to discharge without conviction a person who has either been found guilty of, or has pleaded guilty to, an offence, unless the applicable statute requires the imposition of a minimum sentence. Under s 107, the court must not grant a discharge without conviction unless satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[20] It is well-established that an appeal against a decision to refuse an application for discharge without conviction is a matter requiring judicial assessment, which can
be subject to appeal on normal appellate principles”.6 In such an appeal, the Court must consider the merits of the case afresh and need not defer to the views of the Court below. However, the appellant bears the onus of persuading the Court to depart from the decision appealed against.7
[21] The approach required by s 107 is well understood and has been summarised as requiring consideration of three factors:8
(a)the gravity of the offence;
(b)the direct and indirect consequences of a conviction; and
(c)whether those consequences are out of all proportion to the gravity of the offence.
[22]These are exactly the matters considered by Judge Thomas.
[23] As noted by the Court of Appeal in Z v R,9 the last requirement is key: the court must be satisfied that the consequences of the conviction would be out of all proportion to the gravity of the offending before it is entitled to consider whether the discretion conferred by s 106 should be exercised.10
Analysis
[24] The first issue for determination is whether the court should allow the admission of the new evidence in Ms Tang’s affidavit.
[25] Section 335 of the Criminal Procedure Act 2011 allows the court to receive new evidence on appeal if it is necessary or expedient in the interest of justice. The appellant must demonstrate that the evidence is sufficiently fresh and credible.11
6 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11];
7 See Austin, Nichols & Co v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
8 Z v R [2012] NZCA 599, [2013] NZAR 142 at [8].
9 At [9].
10 At [27]
11 R v Bain [2001] 1 NZLR 638 (CA).
[26] There was no evidence before the District Court about the effects of a conviction on Ms Jo’s continued employment. I accept that the evidence of Ms Tang could have been obtained by Ms Jo before Judge Thomas considered her application. I also accept, however, that Ms Jo would have been reluctant to approach Ms Tang on this matter for fear of losing her employment. Nonetheless, the evidence of Ms Tang is undoubtedly relevant and, I consider, should be admitted in the interests of justice. I discuss below the weight to be given to this evidence.
Gravity of the offending
[27] As noted above, the Judge Thomas assessed the offending as falling at the lower end of moderate. He reached that conclusion after considering the seriousness of the offending and Ms Jo’s personal blameworthiness. The Judge considered the offending to be serious because injuring with intent is a crime of violence which carries a maximum penalty of five years’ imprisonment, because Ms Jo had entered someone else’s apartment without notice, and because of the extent of the assault and the additional threats that followed by way of the text messages. These matters were offset by the factors identified by the Judge as reducing Ms Jo’s blameworthiness. Those factors were: Ms Jo’s lack of previous convictions, her otherwise good character and supporting references to that effect, her early guilty pleas, her remorse, and her willingness to undergo restorative justice, and her completion of a stopping violence programme.
[28] I consider the Judge’s assessment to be thorough and appropriate. I doubt the assertion in Ms Jo’s affidavit affirmed on 16 April 2018 that she had no idea that she would find Mr Park in bed with Ms Song. I consider there an element of premeditation in Ms Jo’s entering Mr Park’s apartment in the early hours of a Monday morning. The attack was immediate upon entry and entailed considerable force in dragging Ms Song from the bed by her hair and then biting her. The threatening text messages Ms Jo sent some days after the event militate against any contention that this was a “heat of the moment” event.
Direct and indirect consequences of conviction
[29] As noted above, Judge Thomas considered the consequences of a conviction on Ms Jo’s employment and on her ability to remain in New Zealand. He considered the latter to be Ms Jo’s main ground in support of her application.
[30] On Ms Jo’s employment, the only evidence before the District Court was a statement by a fellow chef at a restaurant at which Ms Jo had worked and which said nothing about the effects of a conviction on her employment. The Judge did not accept that the evidence showed a real and appreciable risk that Ms Jo would lose her employment because there was no evidence that suggested that her employment would be lost if a conviction were entered.
[31] Ms Tang’s affidavit provides new information on this ground. Ms Tang states that it would not be possible for Ms Jo to remain as an employee at Ms Tang’s restaurant because having a staff member with a criminal record for violence is against the core values of Ms Tang’s company which, Ms Tang says, prides itself as a top operator in hospitality and for its prestige reputation of zero tolerance on violence and discrimination.
[32] I do not find Ms Tang’s affidavit particularly credible. Ms Tang has provided no evidence of her company’s core values or any explanation of why a conviction of an employee in relation to a very personal matter that has no implications for Ms Jo’s honesty or trustworthiness should provide any basis for not renewing her employment. It is understandable that a prospective employer may be reluctant to hire someone not known to the employer and who has a criminal conviction. It is much less understandable that a company, even one engaged in the hospitality industry, would refuse to renew the employment contract of an employee who is known to the company and who, according to Ms Tang’s affidavit, is valued for her honesty and continuous hard work. I infer that Ms Tang wrote the affidavit for the purposes of assisting Ms Jo’s application and for that purpose has chosen to exaggerate the consequences of Ms Jo’s conviction.
[33] For these reasons, I ascribe little weight to Ms Tang’s affidavit and I do not consider it provides a sufficient basis for reaching a different conclusion from that reached by Judge Thomas on this ground – namely that the evidence did not show a real and appreciable risk that Ms Jo would lose her employment if she were convicted of the offences to which she has pleaded guilty.
[34] In addition, as Ms Ching has submitted, the fact that Ms Jo may not be able to renew her employment at Ms Tang’s restaurant does not mean Ms Jo cannot get employment at another restaurant in Auckland or elsewhere in New Zealand. Ms Jo was able to move to Ms Tang’s restaurant while the current charges were pending and was able to secure the necessary changes to her work visa for that purpose. It is apparent, therefore, that employment at Ms Tang’s restaurant is not a necessary prerequisite to Ms Jo’s continued residence in New Zealand.
[35] With regard to Ms Jo’s continued residence in New Zealand, I accept that if she is not granted a discharge without conviction, Ms Jo will not be able to obtain a temporary entry class visa or a residence visa unless she obtains a character waiver.
[36] Judge Thomas recognised that obtaining a character waiver would involve more work but held that more work of itself was not be a reason for granting a discharge. The Judge held that the evidence before him did not establish whether Ms Jo would or would not get residency. He noted that in considering whether Ms Jo should receive a character waiver, the Immigration authorities would consider the same considerations that arose in the application for a discharge; namely Ms Jo’s character, the circumstances of the offending, the chances of Ms Jo re-offending, and Ms Jo’s contributions to and connections with New Zealand. The Judge said it was for Immigration officials to make these kinds of assessments.
[37] Ms Jo has not sought to adduce further evidence on this point and Mr Yi has explained the reasons for that. Ms Jo is awaiting a decision from the Immigration authorities on her application for a further work visa. Mr Yi has also not referred the court to further authorities in this aspect. In the absence of such further evidence or
other authorities, I see no reason for reaching a different conclusion from that reached by Judge Thomas on this point.
Application of disproportionality test
[38] I accept that to refuse Ms Jo’s conviction will make it harder for her to obtain another work visa or a residence visa and that if she is not able to obtain such a visa, she will have to return to the Republic of Korea. I also accept that, notwithstanding Judge Thomas’s understandable reluctance to intrude upon the responsibilities of the Immigration authorities, the Court has, on occasion, reached the view that the loss of immigration status is a consequence out of all proportion to the gravity of the offending; for example Jeon v New Zealand Police, Kumar v New Zealand Police and Chand v New Zealand Police.12 In those cases, however, the consequences of the loss of immigration status extended beyond the appellants in each case and had implications for the appellants’ spouses and children.
[39] No such consequences extending beyond Ms Jo are advanced in the present case if she is unable to obtain a character waiver. Moreover, it is not argued that a return to Ms Jo’s place of birth in the Republic of Korea would result in hardship to Ms Jo, despite Ms Jo’s assertion that it is difficult to live as a chef in Korea.
[40] People who come to New Zealand on temporary entry visas have the right to apply for further temporary entry visas and for residence visas. They have no right, however, to the grant of such visas. If by committing an offence while in New Zealand they make the grant of further visas more difficult, that is not itself a reason for granting a discharge from conviction. That is particularly so where, as here, there is no evidence that requiring Ms Jo to return to her country of birth would result in undue hardship such as to make the consequences of conviction out of all proportion to the gravity of the offending.
12 Jeon v New Zealand Police [2014] NZHC 66; Kumar v New Zealand Police [2015] NZHC 3293;
Chand v New Zealand Police [2017] NZHC 2188.
Result
[41]Appeal dismissed.
G J van Bohemen J
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