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Li v Police

Li v Police

Case [2023] NZHC 3729 18 December 2023

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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”…

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 Li v Police

Details

AGLC: Li v Police [2023] NZHC 3729
Case: [2023] NZHC 3729
Decision Date: 18 December 2023

CaseChat Overview and Summary

The appellant, Mr Yao Li, appealed against the refusal of the District Court to grant him a discharge without conviction under section 106 of the Sentencing Act 2002. Mr Li had pleaded guilty to a count of indecent assault. The appeal centred on the court's assessment of the consequences of the conviction on Mr Li, particularly in relation to his immigration status. The court was required to decide whether the risk of deportation, which could result from the conviction, was out of all proportion to the gravity of the offence.

The court noted that indecent assault encompasses a wide range of conduct, and the seriousness of Mr Li's offending should be assessed based on the particular circumstances, including the duration and nature of the contact, the part of the complainant's body touched, and whether there was skin-to-skin contact. The court found that Mr Li's conduct was at the lower end of the scale of seriousness for this type of offence once mitigating factors were considered.

In relation to the consequences of the conviction, the court considered that Mr Li, while a permanent resident of New Zealand, was not ordinarily resident there and his main ties were to China, where he lived and worked. The court acknowledged that Mr Li faced the risk of deportation but noted that this was speculative and the consequences were not as severe as in cases where the threat was of immediate change of life for a young family. The court concluded that Mr Li's liability to deportation was not out of all proportion to the gravity of the offending.

The appeal was dismissed, and the court upheld the District Court's decision not to grant Mr Li a discharge without conviction.

Orders