Li v Police
[2023] NZHC 3729
•18 December 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-370
[2023] NZHC 3729
BETWEEN YAO LI
Appellant
AND
NZ POLICE
Respondent
Hearing: 3 October 2023 Appearances:
H Zhang for Appellant
S Murphy for Respondent
Judgment:
18 December 2023
JUDGMENT OF ANDERSON J
This judgment was delivered by me on 18 December 2023 at 11.00 am.
………………………………
Registrar/Deputy Registrar
Solicitors:Advent Ark Lawyers, Auckland Meredith Connell, Auckland
LI v POLICE [2023] NZHC 3729 [18 December 2023]
Introduction
[1] After pleading guilty in the District Court at North Shore to one count of indecent assault Mr Yao Li sought a discharge without conviction under s 106 of the Sentencing Act 2002. Mr Li holds a permanent resident visa and has had a residence class visa since 22 March 2017. He is a citizen of the People’s Republic of China.
[2] Mr Li’s wife and his son (now aged 23) usually live in New Zealand. They have done so since 2013. Mr Li ordinarily resides in China, where he is employed as a sales manager. He travels to New Zealand most years and intends to retire in New Zealand in approximately 10 years’ time. The principal ground for his application to the District Court was that a conviction would expose Mr Li to the risk of deportation, preventing him from visiting his family and retiring in New Zealand and that such a consequence would be out of all proportion to the gravity of his offending.
[3] The application for a discharge without conviction was dismissed by Judge E M Aitken on 21 June 2023,1 following a sentence indication where the Judge indicated that it was not likely that Mr Li would succeed on such an application.2 Mr Li was convicted and ordered to pay $2,000 in emotional harm reparation to the complainant.3 He appeals.
Discharge without conviction
[4] By s 106 of the Sentencing Act, if a person is found guilty of or pleads guilty to an offence, the sentencing Judge may discharge the offender without conviction, unless the offence carries a required minimum sentence.4 Section 107 provides that a judge 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.5 The Court must:6
1 Police v Li [2023] NZDC 12755 [Sentencing Notes].
2 Police v Li DC North Shore CRI-2023-044-001231, 21 June 2023 [Sentence Indication].
3 Sentencing Notes, above n 2, at [10].
4 Sentencing Act 2002, s 106(1).
5 Section 107.
6 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27]–[28].
(a)consider all aggravating and mitigating factors of the offence and offender to assess the gravity of the offence;
(b)identify the direct and indirect consequences of conviction on the offender; and
(c)consider whether those consequences are out of all proportion to the gravity of the offence.
[5] There must be a “real and appreciable risk” that the direct or indirect consequence of conviction identified by the offender could occur.7
[6] If the Court determines that the consequences are out of all proportion it must still consider whether it should exercise its residual discretion to grant a discharge, although it will be a rare case where a Court will decline to grant a discharge in such circumstances.8
Law on appeal
[7] An appeal against the refusal to grant a discharge without conviction under s 106 is an appeal against conviction and sentence.9 The appeal must be allowed if a miscarriage of justice has or may have occurred due to a material error by the sentencing Judge or for any other reason.10
The facts
[8] Mr Li’s wife and the complainant’s mother were friends at the time of the offending. On 17 July 2021, Mr Li accompanied his wife to the complainant’s house for a gathering. At around 10.40 pm, the complainant went to use the toilet. While she was there, Mr Li attempted to open the door. The complainant called out to say she was inside the bathroom. Mr Li continued to open the door and began talking to
7 DC (CA47/2013) v R [2013] NZCA 255 at [43].
8 Z (CA447/2012) v R, above n 6, at [27]–[28] citing Blythe v R [2011] NZCA 190, [2011] 2 NZLR
620 at [13].
9 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [7]–[8].
10 Rahim v R [2018] NZCA 182 at [6] citing Criminal Procedure Act 2011, ss 232(2)(c) and 250; and
Jackson v R, above n 9, at [12]–[13].
the complainant while she was sitting on the toilet. She asked him to leave. Mr Li stepped back with the appearance of leaving but then re-entered the bathroom. He did this at least twice.
[9] As Mr Li backed out of the bathroom the second time, the complainant quickly stood up and pulled up her pants. Mr Li entered the bathroom a third time. He reached out, touched her face and placed his arm around her waist. As the complainant attempted to leave the bathroom, Mr Li reached around her from behind and grabbed her left breast over the top of her clothing. The complainant screamed and Mr Li immediately dropped his hand. The complainant then left the bathroom followed by Mr Li.
Decision
[10] On 21 June 2023 Judge Aitken provided a sentence indication for Mr Li.11 The Judge said she would not indicate that she would provide a discharge without conviction for two reasons:
(a)There was no evidence that Mr Li accepted responsibility for what happened. The Judge considered that indecent assault was a serious offence and given the absence of any remorse or acceptance of responsibility she viewed the offending as “moderately serious”.12
(b)The Judge accepted there was a real and appreciable risk that Mr Li would be deported from New Zealand which would bring an end to his residence visa but that Mr Li had no real nexus to New Zealand apart from his wife and son who live here and his desire to one day retire here. She considered that in those circumstances it would be speculative to submit that Mr Li would be unable to return.13
11 Sentence Indication, above n 2.
12 At [2].
13 At [4].
[11] The Judge said that while she was not making a final determination on Mr Li’s application for discharge without conviction, she could not say that it was a likely outcome.14 Following that indication, Mr Li pleaded guilty.
[12] That afternoon, the Judge declined Mr Li’s application for a discharge without conviction.15 She said “I have already this morning, indicated to you that on the basis of the information available to me today, I would not grant a s 106 discharge and in part that was due to a lack of remorse or an acceptance of responsibility”.16
[13] The Judge noted that Mr Li had by that time apologised to the Court and the Judge accepted this as genuine. She stated “I give you real credit for owning up to this offending”.17 But although satisfied that there was “a real and appreciable risk that [Mr Li] will be deported from New Zealand” the Judge considered the criteria for a s 106 discharge without conviction were not met.18
[14] The Judge ordered Mr Li to pay reparation in the sum of $2,000 noting that usually she would have imposed at least supervision but accepted the pressing need for Mr Li to return to China to resume his work responsibilities.19
Seriousness of the offending
[15] Mr Zhang for Mr Li submits that the Judge erred in assessing the gravity of Mr Li’s offending as “moderately” serious.
[16] First, he submits the Judge ignored the particular circumstances of the offending, instead only focusing on the fact that indecent assault is an inherently serious offence.
[17] It is correct that the seriousness of the offending in this case cannot be determined solely by reference to the nature of the charge. Indecent assault
14 At [5].
15 Sentencing Notes, above n 1.
16 At [3].
17 At [4].
18 At [5].
19 At [8]–[10].
encompasses a wide range of conduct from assault tantamount to sexual violation to a fleeting touch.20 The seriousness of the conduct is assessed by reference to factors such as the duration and nature of the contact; the precise details of what part of the complainant’s body was touched; and whether there was skin-to-skin contact. All indecent assaults are treated seriously by the courts, but contact with the complainant’s genitalia or in proximity to the genitalia will obviously be regarded as more serious than, say, a non-consensual kiss on the complainant’s face.21
[18] Mr Zhang highlights that Mr Li’s conduct was not premeditated. It did not involve serious violence or cruelty. It was of relatively short duration and involved contact with the breast only, and that was over clothing as opposed to skin-to-skin. Mr Zhang referred me to a range of other cases supporting his submission that the offending here is at the lower end of the scale.22
[19] However, the offending involved contact to three areas of the complainant’s body. While not over a lengthy period, it cannot be described as fleeting. There was a level of persistence, with Mr Li ignoring the complainant’s requests to leave the bathroom on at least two occasions, before entering again and assaulting her. She was in a particularly vulnerable position at the time of the offending. The offending has had a psychological impact on the complainant who understandably described the incident as traumatic.
[20] I accept the Police submissions that the offending should be characterised as in the “low to moderate” category. This is somewhat less than the “moderate” assessment made by the Judge.
[21] Second, Mr Li also submits that the Judge did not take sufficient account of his remorse and acceptance of responsibility at the time of passing sentence. At the time
20 Edwards v R [2015] NZCA 583 at [9].
21 Rahim v R, above n 10, at [16].
22 Burton v Police [2015] NZHC 3251; Marshall v Police [2014] NZHC 2681; Rahim v R, above n 10; Dyer v R [2021] NZCA 332; R v Aylwin [2007] NZCA 458; Moore v R [2018] NZCA 551; and Khangura v Police [2018] NZHC 203. While it is common to refer to other cases by way of comparison, as stated in Rahim v R, above n 10, at [16]–[19], care needs to be taken, not to lose sight of the particular facts given the infinite circumstances in which sexual assault may occur. What happened in another case, therefore, is not particularly helpful to the assessment of the gravity of the offence before the Court. The assessment relates to the gravity of the offence committed, not where this particular conduct sits among indecent act cases as a group.
of sentencing, the Judge acknowledged that Mr Li had by that time accepted responsibility, but did not then reassess the gravity of the offence for the purposes of s 107. The Judge adopted her previous conclusion which was founded in part on failure to accept responsibility and show remorse. While the Police submit the approach taken was open to the Judge, I accept Mr Zhang’s submission that the acceptance of responsibility needed to be taken into account.
[22] Mr Li had no previous convictions, was at low risk of re-offending and had taken steps to address his alcohol consumption. I took counsel for the Police to acknowledge that from a “low to moderate” starting point, after considering personal mitigating factors the overall gravity of the offending could be placed in the “low” category.
[23] While I do not seek to diminish the conduct or the traumatic effect on the complainant, for the reasons counsel gave, I agree that it is appropriate to rate Mr Li’s conduct as at the lower end of the scale of seriousness for this type of offence once mitigating factors are considered.
Direct and indirect consequences of the offending
[24] The consequence of conviction in the terms identified by the Judge is “the real and appreciable risk that [Mr Li] will be deported from New Zealand”.23
Immigration process
[25] Although Mr Li does not currently reside in New Zealand, he holds a permanent resident visa.24 While he continues to hold this visa, he is allowed to travel freely between China and New Zealand, without needing to meet any entry requirements.25
[26] Cancellation of a visa is automatic on deportation or on the day after the first day on which a deportation order may be served on a person.26
23 Sentencing Notes, above n 1, at [5].
24 He has held a residence class visa since 22 March 2017.
25 Immigration Act 2009, s 73.
26 Immigration Act 2009, s 64
[27] Section 161 of the Immigration Act 2009 addresses liability for deportation for those with that class of visa. As relevant to Mr Li, s 161(1)(b) of the Immigration Act provides:
161Deportation liability of residence class visa holder convicted of criminal offence
(1)A residence class visa holder is liable for deportation if he or she is convicted, in New Zealand or elsewhere,—
(a)…
(b)of an offence for which the court has the power to impose imprisonment for a term of 2 years or more, if the offence was committed not later than 5 years after the person first held a residence class visa; or
…
[28] Issue of a deportation liability notice is not automatic.27 The first step taken by Immigration New Zealand is the preparation of a briefing paper for the Minister (or his or her delegate) and for that person to consider whether a deportation liability notice be served on the convicted person.28 As part of this process, immigration officials give the resident visa holder an opportunity to be heard and make submissions.29 Submissions can canvass issues about the gravity of offending, personal circumstances and the impact deportation would have on them.30
[29] If a decision is made to serve a notice, it is sent by registered mail to the person’s physical address or of a lawyer or agent authorised to accept service.31 If a deportation liability notice is issued, a resident visa holder has a right to appeal to the Immigration and Protection Tribunal on humanitarian grounds against their liability for deportation.32
27 Truong v R [2023] NZCA 97 [Truong (CA)] at [48] citing Zhu v R [2021] NZCA 254 at [12].
28 At [48].
29 Bolea v R [2023] NZCA 39 (Bolea (CA) at [12] citing Zhu v R, above n 27, at [12] and [24]; and
Anufe v Police [2021] NZCA 253 at [12] and [19].
30 Bolea (CA), above n 29, at [12].
31 Immigration Act, s 386A. Service of the notice is unaffected by the fact that the person is outside New Zealand at the time.
32 Section 207(1).
[30] In addition to the above process, the Minister retains an overriding discretion under s 172 of the Immigration Act. Section 172 empowers the Minister to cancel a person’s deportation liability or to suspend it for a period of no more than five years.
[31] Mr Zhang provided me with an Immigration New Zealand document advising that deportation process priority is highest for resident visa holders convicted of crime. He also speculates that less serious cases would have lower priority for resourcing reasons. Therefore, he suggests it may take some time both for a conviction to come to Immigration New Zealand’s attention, and before any process is initiated. It is possible it may never be initiated.
[32] By s 167 of the Immigration Act, a residence class visa holder remains liable for deportation for a period of 10 years following liability arising, in this case the date of conviction.33 Deportation means that the person is permanently prohibited from entering New Zealand,34 although this period may be reduced or the prohibition removed by the Minister.35
[33] It is deportation, not liability for deportation, that results in a visa being cancelled.36 Accordingly, unless and until a person is deported, travel to New Zealand is not affected.
The immigration consequences for Mr Li in the context of s 107
[34] Bolea v R37 and Truong v R38 are both judgments of the Court of Appeal given this year a month apart which address how the immigration consequences weigh into the assessment of whether a discharge without conviction should be granted.
[35] In both the Truong and Bolea cases, the Court found that before issuing a deportation liability notice the immigration authorities would consider the offender’s
33 Exclusive of any period of suspension and any time spent in imprisonment: Immigration Act, s 167(2).
34 Immigration Act, s 179(1).
35 Section 182.
36 Section 64.
37 Bolea (CA), above n 29. The Supreme Court heard an appeal of Bolea on 31 October 2023 with decision not yet given.
38 Truong (CA), above n 27
position on its merits including their personal circumstances and the seriousness of the offending. There was also the Minister’s overriding discretion to cancel or suspend deportation liability. If a deportation notice was issued, there was right of appeal to the Immigration and Protection Tribunal.
[36] There was a somewhat different analysis in each case of how the Court addressed this within the s 107 enquiry.39
[37] In Bolea, the Court considered that where the Court can be assured immigration authorities will look beyond the fact of a conviction in determining deportation outcomes, the risk of deportation is usually a consequence of the offending behaviour, rather than of the conviction. That was the position on the facts of the case. Hence the risk of deportation was not a relevant consequence within s 107. This reflects that it is not necessarily enough to establish “but for” causation connecting the conviction and its consequences, causation being an evaluative exercise involving questions of substance and degree.
[38] In Truong the Court did characterise the risk of deportation as a “consequence” of the conviction within s 107, but what this consequence entailed in the context of immigration process was analysed in undertaking the balancing exercise against the gravity of the offending. On the facts, this evaluation resulted in the conclusion that there should be no discharge.
[39] In both Bolea and Truong the Court differentiated the situation where deportation is an inevitable consequence of conviction. More significantly for the present appeal, both cases also recognise that in some situations even the consequence of exposure to the statutory process (subjecting an offender to the scrutiny of Immigration New Zealand) would be undue.40 These cases will usually41 involve offending that is not intrinsically serious, or which was not a serious example of its kind, and in which there are substantial personal mitigating features.
39 The Court was differently constituted.
40 For example, Jeon v Police [2014] NZHC 66 at [21]; Kumar v Police [2015] NZHC 3293 at [41]; and George v Police [2014] NZHC 1725 at [46].
41 In Jeon v Police, above n 40, the offending was regarded as moderately serious of its type; and Kumar v Police, above n 40, involved assault with a weapon viewed as of low to moderate seriousness but was a response to prolonged racial abuse.
[40] Rahim v R42 has been cited as an example of a case of this kind and was relied on in this appeal. There the Court of Appeal disagreed with the sentencing Judge as to the seriousness of the indecent assault, concluding that it was towards the lower not higher end of the scale.43 Given the low seriousness, the Court of Appeal determined that a conviction would be disproportionate to the gravity of offending. However, in my view Rahim is a case that turned on the Court’s acceptance of expert evidence that after Mr Rahim had undergone all of the statutory processes, deportation was likely to occur. Hence the sentencing Judge had misstated the nature of the risk as simply that Mr Rahim would become liable to deportation.44
[41] In any event, where mere exposure to liability to deportation (as opposed to the risk of actual deportation) is itself advanced as a disproportionate consequence, in my view the balancing exercise also involves considering the ultimate impact that deportation would have on the offender and his or her family, as this is what the threat of the deportation statutory process means in the circumstances.
Consequences of conviction for Mr Li
[42] Mr Zhang accepts that Mr Li cannot point to any circumstances which would suggest it is certain, or even highly likely that he will be deported. It is not suggested that this is a case where the immigration authorities would not look past a conviction. Mr Li would have the opportunity before issue of any deportation liability notice of outlining the full merits of his position, including submissions on the seriousness of the offending, his family situation and retirement plans. The Minister would have options under s 172 to suspend deportation.
[43] Acknowledging all this, Mr Zhang’s submission is that Mr Li should be discharged because liability to deportation itself is a direct and disproportionate consequence of conviction. He says that this is a case where the offending is of a character that exposure to the process in and of itself outweighs the gravity of the offending. Based on the above authorities, it is open for Mr Li to take that approach
42 Rahim v R, above n 10.
43 At [20]–[22].
44 At [28]–[30].
which is somewhat different to the real and appreciable risk of actual deportation addressed by the Judge.45
[44] The Judge considered the position if Mr Li was deported and lost his permanent resident visa. This remains relevant to the nature and dimension of the risk Mr Li faces from his exposure to the statutory deportation process.46 The Judge took the view that nothing would change in that Mr Li had no real nexus to New Zealand other than his wife and son and his desire to one day live in New Zealand when he retired. The Judge considered that the time between now and that point meant the Court was unable to assess Mr Li’s circumstances at that time or his then immigration options.47
[45] Mr Zhang took issue with the Judge’s “no real nexus” comment. However, the Judge did state the facts accurately. In most other cases that have involved immigration consequences, deportation would result in the immediate upheaval of the defendant from their life in New Zealand and a separation from family. This is not a case where deportation, if it occurred, would result in the kind of break-up of the family unit that existed in cases such as Rahim.48 Here Mr Li is already separated from his family. Deportation now would not result in a present change of circumstances for Mr Li, other than affecting an annual trip to New Zealand. Moreover, in contrast to other situations,49 Mr Li’s son is now an adult.
[46] Mr Zhang was also critical of the Judge characterising the immigration consequences for Mr Li at the time he seeks to retire as speculative. Mr Li says that if he were to find out on retirement that he could not move here he would be left in a difficult position, as would his wife and son who have made their lives here. Mr Zhang also points to steps the family has taken to plan for his permanent move here such as selling nearly all property in China, and Mrs Li selling her business.
[47] The fact remains that the actual consequences of deportation for Mr Li’s retirement are somewhat speculative being remote in time and of course subject to
45 Sentence Indication, above n 2, at [3]; and Sentencing Notes, above n 2, at [5].
46 See [41] above.
47 Sentence Indication, above n 2, at [3]–[4].
48 Others are R v Tang [2019] NZHC 2056; Sunda v Police [2019] NZHC 756; and Chand v Police
[2017] NZHC 2188.
49 For example, Rahim v R, above n 10.
what stance Immigration New Zealand would take. The Judge was not wrong to characterise them in that way.
[48] It is correct that uncertainty will hang over that plan while Mr Li remains liable to deportation. I turn to the balancing process against that backdrop.
Balancing exercise
[49] On the balancing process generally, Mr Zhang submits that there are a number of cases similar to that of Mr Li where the defendant was granted a discharge without conviction and that therefore the parity principle requires the same result here. I have considered those cases.50 However ultimately, I am not much assisted by them. All they show is how each case turns on their facts as to the precise offending and the specific consequences for the offender and their family including factually specific immigration consequences.
[50] Mr Li’s offending is at the lower to moderate end of seriousness for an indecent assault. With Mr Li’s mitigating factors, I have characterised it as of low seriousness. This “classification” is not a substitute for looking at the specific facts in the balancing exercise, with each case being different. In particular, in my view the offending is more serious than in a case like Rahim given the level of persistence, its less fleeting nature and the vulnerable circumstances of the complainant in a toilet where she would feel exposed. It was traumatic for the complainant and has had a continuing impact. This is not minor or insignificant offending.
[51] Mr Li is exposed to the liability of deportation. I accept this will hang over him. But this exposure is not to the risk that if deported there will be an upheaval requiring him to start afresh professionally or personally elsewhere. Nor, as noted above, is it a situation where Mr Li faces the immediate risk of a break-up of the family unit arising from deportation. Mr Li would not be able to visit New Zealand, but his wife and son will still be able to visit China. I accept the Police’s submission that the Judge was correct not to speculate on immigration consequences in 10 years’ time.
50 Particularly Rahim v R, above n 10; Marshall v Police, above n 22; and R v Lang [2020] NZDC 16389, [2020] DCR 435.
[52] In the meantime, unless and until the statutory process is engaged and results in deportation, Mr Li is free to continue his annual travel to New Zealand. While I acknowledge that the effect of liability to deportation creates uncertainty for Mr Li and his family, that is as to outcomes that are remote in time and are speculative; and if they occurred, are less severe than in cases where the threat is of immediate change of life for a young family.
[53] In my view in all the circumstances Mr Li’s liability to deportation is not out of all proportion to the gravity of the offending. The Judge was right in the result, to decline Mr Li’s application for a discharge without conviction.
Result
[54]Appeal dismissed.
Anderson J
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