Kuang v Police - [2012] NZHC 3369

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000317 [2012] NZHC 3369

JIANZHAN KUANG
Appellant

v

NEW ZEALAND POLICE
Respondent

Hearing: 11 December 2012

Appearances: E Te Whata for appellant
E Rutherford for respondent

Judgment: 11 December 2012

ORAL JUDGMENT OF CHISHOLM J

[1] Having pleaded guilty in the District Court to common assault and committing a threatening act, Mr Kuang sought discharge under s 106 of the Sentencing Act 2002. His application was declined. He was then convicted and sentenced to 12 months supervision and ordered to complete 80 hours community work.

[2] This appeal is confined to the refusal to grant a discharge without conviction. It is alleged that the Judge failed to take into account relevant evidence concerning the gravity of the offending, gave inadequate consideration to the consequences of the conviction, and failed to properly evaluate whether the consequences were out of
all proportion to the gravity of the offending.

KUANG V NEW ZEALAND POLICE HC AK CRI-2012-404-000317 [11 December 2012]

[3] An application to adduce further evidence is before the Court. That application relates to a letter from a lawyer in China to the effect that if a person seeking an entry visa for the People’s Republic of China has a criminal record then it is impossible to gain an entry visa.

[4] Given that Ms Te Whata does not place a great deal of reliance on the absolute terms stated in the letter, I do not think that anything would be achieved by admitting this evidence. As will be mentioned shortly, there is other relevant evidence concerning the likely impact of convictions on Mr Kuang’s ability to enter China.

The offending

[5] In many respects this offending has highly unusual features. It appears that the appellant was severely depressed and his wife thought that he was about to leave in his car for the purpose of committing suicide. She declined to give him the keys.

[6] An argument developed and Mr Kuang screamed at his wife, thereby awakening their 24 year old son. Mr Kuang then grabbed his wife by the shoulder and started repeatedly striking her, yelling that they were going to the car to die together. As she tried to pull away Mr Kuang put both hands around her neck and tried to pull her inside the vehicle.

[7] At this point Mr and Mrs Kuang’s son intervened and tried to free his mother. However, Mr Kuang slapped his wife on the check before he was wrestled to the ground by their son. When their son asked his mother to ring the police she refused. Ultimately Mrs Kuang and their son took refuge in a bedroom and closed the door. Mr Kuang then went to the kitchen, grabbed a knife, and plunged it into the closed bedroom door, narrowly missing the couple’s son.

[8] Mr Kuang had left the house by the time the police arrived but was located soon after.

[9] Mr and Mrs Kuang came to New Zealand from…

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.

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Details

Case: [2012] NZHC 3369
Decision Date: 11 December 2012

CaseChat Overview and Summary

The High Court of New Zealand considered an appeal by Mr Kuang against the refusal to grant a discharge without conviction. Mr Kuang had pleaded guilty to common assault and committing a threatening act in the District Court, which resulted in a sentence of 12 months supervision and 80 hours community work. The appeal focused on the refusal to grant a discharge without conviction, and the court had to determine if the Judge failed to take into account relevant evidence concerning the gravity of the offending, gave inadequate consideration to the consequences of the conviction, and failed to properly evaluate whether the consequences were out of all proportion to the gravity of the offending. The court had to consider the evidence provided, including a letter from a lawyer in China stating that a person seeking an entry visa for the People’s Republic of China with a criminal record would be unable to gain an entry visa.

The court found that the Judge had adopted the correct approach by applying the three steps required by ss 106 and 107 of the Sentencing Act. However, the Judge failed to take into account the full extent of the potential consequences of the conviction for Mr Kuang, who was concerned that he would not be able to visit his family in China once his current Chinese passport expired. The Judge also failed to properly balance the consequences of the convictions against the seriousness of the offending, as the court considered Mr Kuang's personal circumstances, including his age, no previous convictions, and the strong support from his family.

The appeal was allowed, and the conviction and sentences of 12 months supervision and 80 hours community work were quashed. The court did not see any point in making the discharge conditional on any other requirements, as Mr Kuang had probably served the whole, or at least part, of his sentence of community work.

Orders