Reng v NZ Police
[2014] NZHC 2586
•22 October 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-404-000125 [2014] NZHC 2586
BETWEEN MINGZHONG WENG
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 6 October 2014 Counsel:
Y B Lee for the Appellant
E L Woolley for the RespondentJudgment:
22 October 2014
JUDGMENT OF DUFFY J
[Re Appeal Against Refusal to Discharge Without Conviction]
This judgment was delivered by Justice Duffy on 22 October 2014 at 10.30 am, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors: Y B Lee, Auckland
Meredith Connell, Auckland
WENG v POLICE [2014] NZHC 2586 [22 October 2014]
[1] The appellant, Mingzhong Weng, pleaded guilty in the District Court and was
sentenced to 140 hours’ community work for the following charges:
(a) Assault with intent to injure, pursuant to s 193 the Crimes Act 1961;
maximum penalty, three years’ imprisonment;
(b) Possession of an offensive weapon, pursuant to s 202A of the
Crimes Act; maximum penalty, three years’ imprisonment; and
(c) Speaks threateningly, pursuant to s 21 of the Summary Offences Act
1981; maximum penalty, three months’ imprisonment, or a fine of up
to $2,000.
He had sought a discharge without conviction, which was refused by
Judge Tremewan. He now appeals against that decision. The appeal is opposed.
Background
Factual background
[2] At about 11.20 am on 25 December 2013, Mr Weng was at his home with his partner, Ms Yang. The two were lying in bed and Mr Weng asked Ms Yang to go to a friend’s barbeque with him. When she refused, he kicked off the bed covers and began slapping Ms Yang across her legs, stating “I will hit you whenever I like, and I’ll kill you on Christmas day”.
[3] Mr Weng then sat on Ms Yang’s legs, pinning her to the bed. He grabbed her neck and began squeezing tightly with one hand. Ms Yang was unable to breathe and began to lose consciousness.
[4] Mr Weng eventually let go of Ms Yang, and she tried to leave the room. Mr Weng grabbed her leg and pulled her to the ground. Ms Yang tried to yell for help. Mr Weng picked up a towel and shoved it into Ms Yang’s mouth in an attempt to stop her from screaming. He grabbed her ankle and pulled her into a wardrobe.
[5] Mr Weng picked up scissors and told Ms Yang to stay in the wardrobe, or he would kill her. Mr Weng dropped the scissors and left the room. He returned a short time later. Ms Yang tried to leave the room again, but Mr Weng grabbed her by the ankle and dragged her back inside the wardrobe.
[6] Mr Weng picked up a large sewing needle and motioned it towards her neck in a threatening manner. Ms Yang attempted to calm Mr Weng down, and when he left the wardrobe, she managed to escape the room. Mr Weng and Ms Yang share their accommodation with other persons. Ms Yang was able to run to a flatmate’s bedroom and from there she called the police.
[7] As a result of the assault, Ms Yang received redness to her neck, a cut lip, a sore throat and a sore body.
District Court decision
[8] In sentencing Mr Weng, Judge Tremewan accepted that he was a first time offender and that things are quite different for him now than they were at the time of offending. The Judge gave Mr Weng credit for his guilty pleas and co-operation. The Judge gave further credit for the fact the Mr Weng had of his own volition undergone a course of counselling and received a favourable report from the counsellor. Judge Tremewan acknowledged that Mr Weng was enthusiastic with his learning and completed the tasks required by the programme. He learned basic anger management skills, emotion regulation skills and communication skills. The Judge noted that he was very remorseful for what he had done, and he impressed her as being determined to live a violence-free lifestyle.
[9] The Judge noted that Ms Yang wanted to continue the relationship with Mr Weng, and that Ms Yang had seen positive changes in his behaviour since he completed his programme. Ms Yang supported the application for a discharge without conviction.
[10] Nonetheless, Judge Tremewan considered the offending to be serious. In terms of consequences, as matters then stood, Mr Weng and Ms Yang worked together in a Green Acres cleaning franchise business. The Judge was informed that Mr Weng could lose the ability to work in this franchise if a conviction was entered against him. However, the Judge found that there was no actual requirement that Mr Weng would necessarily lose his ability to work for the company as, in her view, the terms of the franchise agreement do not provide an automatic bar to him working in the business. The Judge acknowledged that a conviction may well pose a difficulty at some point and that some cleaning work may not be available to Mr Weng if he had a conviction. But in the Judge’s view, this would be more likely if it were a conviction for dishonesty rather than violence (particularly of a domestic nature).
[11] Judge Tremewan considered the submission that Mr Weng may wish to go overseas to study. Her Honour considered that this was somewhat vague in the context of the case. In any event, even if it was the case that Mr Weng were precluded from studying in the US or Canada, the Judge considered that it would not favour the application due to the seriousness of the offending.
[12] While credit was given for many matters, the Judge considered that she could not be satisfied that the consequences of a conviction were out of all proportion to the gravity of the offending. Hence, the entry of a conviction and the imposition of a sentence.
Submissions
[13] This appeal was adjourned part-heard to enable Mr Weng to obtain further information to support his case for a discharge without conviction. By the time of the first appeal hearing, it was clear that the entry of a conviction had cost Mr Weng his employment in the Green Acres cleaning franchise that Ms Yang had purchased with assistance from her parents. This development, which post-dated the sentencing in the District Court, was a factor that supported a discharge without conviction.
[14] As matters were presented to me, Ms Yang was still supportive of Mr Weng, but was struggling to maintain the cleaning business in circumstances where she did not have the help and support of Mr Weng. My concern was that the business might fail, which would mean that the consequences of a conviction entered against Mr Weng were directly harmful to the victim of his offending. I allowed the adjournment to enable Mr Weng to provide the Court with affidavit evidence from Ms Yang confirming the harmful consequences that would befall her from the conviction of Mr Weng.
[15] However, Ms Yang did not provide supporting evidence for Mr Weng. I learned from Mr Weng’s counsel that she has now moved on emotionally and financially. She has a new partner and the cleaning franchise business is continuing successfully without Mr Weng’s involvement. Because the respondent was expecting an affidavit from Ms Yang, when all that eventuated was further evidence from Mr Weng, the respondent made its own enquiries of Ms Yang. This was in the form of a police job sheet. Ordinarily, information in that form would not be accepted as evidence, but in this case Mr Weng’s counsel referred to this information in his submissions. I take note of it only insofar as it confirms what is already apparent to me from the absence of any evidence from Ms Yang. Accordingly, Mr Weng only has the impact of the conviction on himself to rely upon in arguing his appeal. I will consider the submissions made on his behalf at both the first and second hearing of the appeal.
Appellant’s submissions
[16] Counsel for Mr Weng submits that Mr Weng should be discharged without conviction for numerous reasons. Mr Weng has no criminal record, he admits he has anger related issues and has completed a course to address this. He pleaded guilty and immediately took steps to deal with the issues he has been affected by.
[17] Mr Weng has apologised to his partner and her parents and has now taken steps to avoid a situation where his partner feels threatened by him. Mr Weng is remorseful and embarrassed by his conduct. He is concerned that a criminal record may affect his ability to migrate to the US. There is an automatic five year stand
down for residency applications to the US, which requires an immigration waiver. This waiver is very difficult to obtain with a conviction that carries a maximum penalty of more than two years’ imprisonment.
[18] Counsel for Mr Weng submits that the Court must have due regard to the nature of the offence and to the gravity with which it is viewed by Parliament; to the seriousness of the particular offending; to the circumstances of the particular offender in terms of the effect on his career, his pocket, his reputation and any civil disabilities on conviction; and to any relevant circumstances when exercising the discretion under ss 106 and 107 of the Sentencing Act 2002.1
[19] Mr Weng contends that the Court should assess all factors that go to his culpability, including his guilty plea, remorse, and the Court’s assessments of how likely it is that the offender will reoffend, the victim’s perspective and the consequence suffered by reparation, community work or publicity. In Delaney v
Police,2 a prompt guilty plea, expression of remorse, attendance at a restorative
justice conference, making reparation and undertaking community work were all considered to be significant factors.
[20] Counsel for Mr Weng submits that he had been under stress with his work and felt he needed to bring his partner to the barbeque. According to his submissions, Mr Weng had no intention of assaulting her and says that he reacted in a manner that was distressing to his partner and her parents.
[21] Mr Weng submits that he has made a promise to himself never to make the same mistake again and never to put himself in the same predicament of treating his partner in a threatening manner again.
[22] Counsel for Mr Weng submits that the Judge failed to take into account that the offending was at the lower end of the scale, that Mr Weng pleaded guilty and
attended an anti-violence counselling course. As a consequence of his conviction, he
1 Fisheries Inspector v Turner [1978] NZLR 233 (CA) at 241.
2 Delaney v Police HC Wellington CRI-2005-485-22, 22 April 2005.
has lost his job at the cleaning franchise that Ms Yang owns. Mr Weng currently has a part-time job, but since the offending he has not been able to find full-time work.
[23] Mr Weng is considering going to the police college or the army, but he will not be accepted with a criminal record. There is also the stigma that a conviction is seen to bring in the eyes of the Chinese community.
[24] Counsel for Mr Weng also emphasises Mr Weng’s youth. He is a young man in his early twenties, who came to New Zealand with his mother approximately four years ago when aged 20 years. He is portrayed as someone who lacks an understanding of the New Zealand culture in terms of domestic violence. The suggestion being that this is less acceptable in New Zealand than in China. Mr Weng’s counsel portrayed him as someone who suffers from what the Chinese refer to as the “little Emperor” syndrome of being an overly-indulged only child due to China’s one child policy. Ms Yang was his first partner, and he is described as being inexperienced and immature when it comes to emotional relationships.
[25] His counsel submits that Mr Weng has paid a heavy price for his behaviour because the relationship with Ms Yang has ended; her parents think poorly of him; and he now realises that for him, his past circumstances with Ms Yang are irretrievable. These factors were presented to me as a hefty price for a young man to pay, such that the additional impact of a conviction being a permanent blight on his character would be out of proportion to the offending.
[26] Mr Weng offered to perform community work in substitution for a conviction. He has already performed just over 50 hours of community work for his church group as a demonstration of his remorse and contrition.
Respondent’s submissions
[27] The respondent submits that the offending here should be considered as moderate to serious. The offending was prolonged and involved both actual and threatened violence, and the threatened use of a weapon. Ms Yang suffered redness
to her neck, a cut lip, a sore throat and a sore body. The offending occurred in
Ms Yang’s home, where she had a right to expect to be safe and secure.
[28] The respondent acknowledges that Mr Weng has no previous convictions. Mr Weng’s guilty plea did not come at the earliest opportunity, but he was entitled to some discount. The Crown accepts that Mr Weng is remorseful and has taken steps to address his behaviour. However, in the context of the nature of the incident, the overall gravity of the offending is moderate to serious.
[29] The respondent accepts that the cultural aspect of an offender is relevant when imposing a sentence, or other means of dealing with the offender with a partly or wholly rehabilitative purpose. However, even where cultural rehabilitative practices are included as part of an offender’s sentence, or undertaken by the offender of his or her own accord, they do not displace the interests of the New Zealand criminal justice system in ensuring that the interests of society as a whole are met.
[30] As to the direct and indirect consequences of a conviction, the respondent has rebutted each one separately. Considering the impact on current employment, the respondent accepts that Mr Weng has lost his current employment, but there is no evidence that he will not be eligible for other employment.
[31] The respondent submits that Mr Weng’s wishes to pursue a career in the police or army are vague claims. The respondent submits that Mr Weng’s aspiration to join the police force is even more speculative than his desire to join the army.
[32] The respondent notes that where a conviction may have consequences for an offender’s employment status, or result in a material career disadvantage, the courts have generally concluded that something more than an impediment to continuing a particular occupation is required in order for a s 106 application to be successful.
The respondent points to Liang v Police where Hammond J stated:3
[17] Whether a conviction will form an occupational barrier is a relevant consideration in determining whether to grant a discharge without conviction. Where the conviction will result in an absolute bar to the occupation that may carry extra weight with the Court. I do not think there is any such suggestion in this case. If there is an independent body charged with determining the suitability of individuals for particular employment, the Court may be more ready to enter a conviction, it being of the view that it is in the public interest that that body is able to make a decision with the benefit of full disclosure of the fact. The fact that the conviction may act as a barrier to gaining entrance to an occupation is not a determinative factor – it is merely a factor to be considered in the balancing exercise.
[33] The respondent submits that the impact of a conviction in terms of risk to a future career was considered in Mohammed v New Zealand Customs Service.4 In that case, the appellant had completed all examinations to become a commercial pilot and submitted that a conviction would have consequences at all stages and in all aspects of his future career. Potter J found that a discharge without conviction would prove significant for the appellant in relation to a career as a commercial pilot. Although it would not be an absolute bar, the barriers would be significant.
[34] The respondent submits that the cases illustrate that where an application for discharge without conviction is premised on a future offer of employment, documentary material confirming that an offer has been made should be placed before the Court. Where the application is premised on plans to embark on a future career, evidence that the appellant is some way down the track towards pursuing that career is provided.
[35] The respondent submits that there is no evidence to suggest that a conviction would mean the end of Mr Weng’s career in the cleaning industry, but in any event, it would be appropriate for any prospective employer of Mr Weng to consider his conviction and the nature of the offending involved when deciding whether they will employ him. It is in the public interest that convictions should not be concealed. Companies making employment decisions are best placed to decide whether a particular type of offending is a matter that is relevant to a particular field of occupation.
[36] As to the effect on Mr Weng’s ability to obtain a visa to enter the US, the respondent submits that this is merely a vague aspiration and that the Judge correctly dealt with this consequence by stating that it was a vague submission and, as a result, not much weight can be placed upon it when considering the application for a discharge without conviction.
[37] Regarding how a conviction might be perceived within the Chinese culture, the respondent says that a common and intended consequence of a conviction is some form of social stigma.
[38] The respondent submits that the less serious the consequences and a low likelihood of their occurring, the less likely the disproportionality test will be met. In Iosefa v Police, Randerson J stated, at [35]:5
The nature and seriousness of the consequences and the degree of likelihood of their occurring will be material to the Court’s assessment of whether those consequences would be out of all proportion to the gravity of the offence. In other words, the higher the likelihood and the more serious the consequences, the more likely it is that the statutory [disproportionality] test can be satisfied.
[39] The respondent submits, therefore, that the consequences of a conviction are not out of all proportion to the gravity of the offending. As such, the appeal should be dismissed.
Discharge without conviction
Substantive law
[40] The relevant sections of the Sentencing Act provides:
106 Discharge without conviction
(1) If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
(2) A discharge under this section is deemed to be an acquittal.
(3) A court discharging an offender under this section may—
(a) make an order for payment of costs or the restitution of any property; or
(b) make any order for the payment of any sum that the court thinks fair and reasonable to compensate any person who, through, or by means of, the offence, has suffered—
(i) loss of, or damage to, property; or
(ii) emotional harm; or
(iii) loss or damage consequential on any emotional or physical harm or loss of, or damage to, property:
(c) make any order that the court is required to make on conviction.
…
107 Guidance for discharge without conviction
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[41] It was established in R v Hughes that:6
[10] … the court must first consider whether the disproportionality test in s 107 has been met. If (and only if) the court is satisfied the s 107 threshold has been met, may the court proceed to consider exercise of the discretion to discharge without conviction under s 106.
[11] The decision as to whether the test under s 107 has been met is not a matter of discretion. It is a matter of fact requiring judicial assessment, which can be subject to appeal on normal appellate principles: Rajamani, at para 5. The discretionary power of the Court to discharge without conviction under s 106 arises and exists only if the Court is satisfied that the s 107 threshold has been met.
[42] Therefore, the normal appellate principles in Austin, Nichols & Co Inc v
Stichting Lodestar applies to the s 107 analysis.7
[43] The Court of Appeal in A (CA747/10) v R concisely set out the three-step approach to s 107 assessments:8
6 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222.
7 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
8 A (CA747/10) v R [2011] NZCA 328.
[22] Section 107 codifies the common law criteria for a discharge without conviction and requires a three-step process:
(a) Identify the gravity of the offending by reference to the particular facts of the case;
(b) Identify the direct and indirect consequences of a conviction; and
(c) Determine whether the direct and indirect consequences of conviction would be out of all proportion to the gravity of offending.
Gravity of the offence
[44] The first step is to determine the gravity of the offence. Mr Weng appears to submit that the offending is at the lower end of seriousness. The Crown, however, argues that the offending can more appropriately be described as moderate to serious.
[45] Given the prolonged nature of the attack, the actual violence used, the fact that sufficient force was used to make Ms Yang feel as though she was losing consciousness, and the fact that fairly serious threats were made, I am inclined to agree with the Crown’s assessment as to seriousness. What occurred was more serious than low-level domestic violence.
[46] Of course, the remorse of Mr Weng, his guilty plea, his clean record, and his attempts to address the cause of his anger issues should be taken into account as well. These factors help to reduce the seriousness of the offending but, in my view, it remains at a moderate, rather than a low level.
Consequences of conviction
[47] Clearly, Mr Weng has lost his employment as a cleaner for Ms Yang’s
franchise. But the other consequences are less clear.
[48] Regarding the impact of a conviction on his career plans, in the majority of the cases on this subject, the offender has generally already been on track with regards to the threatened career. For example in Tupu v Police, the appellant had assaulted someone but was discharged without conviction as she had been accepted into the Air Force and a conviction would affect her acceptance for the Air Force,
and the likelihood of an overseas posting.9 Courts are reluctant to grant a discharge on the ground of barrier to career where the consequences are unclear.10 The assertions of counsel are insufficient to qualify as “supporting information” for the purposes of a discharge without conviction.11 Generally, there needs to be some kind of material that makes the potential consequence more than just theoretical. In this case, I consider that Judge Tremewan’s reluctance to place any great emphasis on the
vague barrier to career consequences was justified. Although Mr Weng has lost his current full-time employment, there is no evidence to suggest he will not be able to secure any other employment. Further, there is no material to suggest that Mr Weng is seriously considering a career in the army or the police.
[49] Much the same can be said regarding the impact of a conviction on Mr Weng’s travel plans. These amount to no more than an expression of interest in one day visiting Canada and the US. More than that is required for present purposes.
[50] In relation to the cultural humiliation, I consider that there is nothing to suggest that the circumstances of Mr Weng’s family and culture are so unique as to warrant special consideration.12 I agree with the respondent’s submission that a common and intended consequence of a conviction is some form of social stigma.
Consequences compared to gravity
[51] Here, the offending was moderately serious. The consequences of a conviction are somewhat vague (bar the loss of employment from Green Acres). Mr Weng’s offending was not a low-level domestic assault. It was prolonged and involved actual violence, as well as serious threats. Although Mr Weng should be commended for his participation in an anger management programme, I consider that the vague potential consequences of a conviction are not out of all proportion to
the gravity of his offending.
9 Tupu v Police [2014] NZHC 743.
10 Police v M [2013] NZHC 1101,(2013) 26 CRNZ 308.
11 At [60]-[62].
12 Geo v Police HC Whangarei CRI-2010-488-66, 5 July 2011 at [12].
Section 106
[52] The decision I have reached under s 107 means that there is no basis for me to proceed to the considerations under s 106.
Result
[53] The appeal is dismissed.
Duffy J
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