Shi v Police - [2020] NZHC 59

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-000332

[2020] NZHC 59

BETWEEN
FENG LEI SHI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 17 December 2019

Appearances:

S Gray for the Appellant

J Kang for the Respondent

Judgment:

3 February 2020

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Monday, 3 February 2020 at 4.00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors: Meredith Connell (Office of the Crown Solicitor), Auckland Counsel: Ms S Gray, Auckland

SHI v NZ POLICE [2020] NZHC 59 [3 February 2020]

Introduction

[1] On 8 November 2018, Feng Lei Shi pleaded guilty in the Waitakere District Court to charges of male assaults female,1 wilful damage2 and threatening behaviour.3 Mr Shi applied for a discharge without conviction under ss 106 – 107 of the Sentencing Act 2002.

[2] On 2 July 2019, Judge N J Sainsbury declined the application and sentenced Mr Shi to six months’ supervision, and ordered him to pay $1,539 in reparation for a mobile phone he damaged and $500 as emotional harm payment to the victim of his assault.4

[3] Mr Shi now appeals against the refusal to grant him a discharge without conviction on the grounds that the Judge erred in his assessment of the consequences of conviction.

Factual background

[4] At 7.45 pm on 18 September 2018, the appellant was at his home address with his wife and their six-year-old daughter. The appellant and his wife had been experiencing difficulties in their marriage and had been living in separate bedrooms. Following a heated discussion, the appellant grabbed his wife’s mobile phone and bent it, causing it to break.

[5] The appellant then grabbed his wife by the throat with his left hand and pushed her with enough force to cause her to stumble backwards. The appellant pushed his wife in the back as she was stumbling, causing her to fall onto a sofa. The appellant pushed her in the chest two further times as she attempted to stand up. The appellant told his wife that he would burn the house down.

1      Crimes Act 1961, s 194(b). Maximum penalty of two years’ imprisonment.
2      Summary Offences Act 1981, s 11(1)(a). Maximum penalty of three months’ imprisonment or a
$2,000 fine.
3      Section 21(1)(a). Maximum penalty of three months’ imprisonment or a $2,000 fine.
4      Police v Shi [2019] NZDC 12570.

District Court decision

[6] After hearing the facts of the case, the Judge noted the serious features of the offending as family violence, some degree of actual force used and the presence of the couple’s six-year-old daughter. The Judge then referred to the appellant’s lack of previous convictions, his completion of the Stopping Violence Programme, his acceptance of responsibility and his offer to pay reparation, as all helping to reduce the gravity of the offending but said that it still remained a low to moderate offending.

[7] The appellant advanced two consequences…

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 Shi v Police

Details

AGLC: Shi v Police [2020] NZHC 59
Case: [2020] NZHC 59
Decision Date: 3 February 2020

CaseChat Overview and Summary

The High Court of New Zealand considered an appeal against the refusal to grant Feng Lei Shi a discharge without conviction. The appellant was convicted of male assaults female, wilful damage, and threatening behaviour. The District Court Judge declined the application for a discharge without conviction and sentenced Shi to six months' supervision, and ordered him to pay reparation. The appellant appealed on the grounds that the Judge erred in his assessment of the consequences of a conviction.

The court had to determine whether the consequences of a conviction would be out of all proportion to the gravity of the offence. The District Court Judge had considered the appellant's lack of previous convictions, his completion of the Stopping Violence Programme, his acceptance of responsibility and his offer to pay reparation, as all helping to reduce the gravity of the offending but said that it still remained a low to moderate offending. The appellant advanced two consequences of a conviction in support of his application: restriction on his ability to engage with his daughter’s school activities as a volunteer parent and barriers to travel in the context of overseas business trips. The District Court Judge determined there was no evidential foundation that the two consequences were likely to occur or that they were disproportionate consequences.

On appeal, the High Court considered fresh evidence from an Australian solicitor and registered migrant agent, which provided reliable evidence of the potential immigration consequences of a conviction. The court found that there was a real and appreciable risk that the appellant would be refused a visa to travel to Australia on business, which could lead to a real and appreciable risk that his business would collapse. The court found that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. The appellant’s convictions were quashed, and he was discharged without conviction. However, the order for the payment of reparation remained.

The final orders of the court were that the appeal is allowed on the basis of new evidence not available to the sentencing Judge. The appellant’s convictions for male assaults female, wilful damage and threatening behaviour are quashed, and he is discharged without conviction. However, the order for the payment of $1,539 in reparation for the damaged mobile phone and $500 emotional harm reparation remains.

Orders