Shi v Police
[2020] NZHC 59
•3 February 2020
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 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. Specifically, the appellant submitted that a conviction for domestic violence would preclude him from travelling to Australia for his business and submitted various internet articles about Australian immigration policy. The Judge determined there was no evidential foundation that the two consequences were likely to occur or that they were disproportionate consequences. He considered that schools and foreign countries are entitled to make such checks, and that it would be wrong to subvert that process.
[8] The Judge accepted however that if a situation arose where overseas business trips were curtailed for no other reason than the fact that he had these convictions, with the result of a real and appreciable risk that his business collapse, there might be a disproportionate result. But he did not have an evidential basis for that. The application was therefore declined.
Fresh evidence on appeal
[9] In the District Court, the appellant relied on information from the internet as evidence of Australian immigration policy. The District Court Judge did not consider this reliable:5
Maybe it as draconian as it appears or maybe not. I am not prepared to make a finding on that based on a printout from the Internet. I would have expected there to be an affidavit from an immigration specialist in order to form a foundation for that submission.
5 At [19].
[10] Accordingly, the appellant seeks to admit an affidavit from Ms Xinjing Liang, an Australian solicitor and registered migrant agent as fresh evidence. Section 335 of the Criminal Procedure Act 2011 allows the Court to receive new evidence on appeal if it thinks it is necessary or expedient in the interests of justice. An appellant must demonstrate that the new evidence is sufficiently fresh and sufficiently credible.6 Evidence which could, with reasonable diligence, have been called at trial will not qualify as sufficiently fresh.7 However, this is not an immutable rule — the overriding criterion is what course will best serve the interests of justice.8 To that end, the stronger the new evidence is from the appellant’s point of view, the greater the risk of a miscarriage of justice if it is not admitted, and the more likely it is to be admitted, whether or not it could be described as fresh.9
[11] The Crown opposes leave to admit Ms Liang’s affidavit on the basis that it is not fresh evidence. The Crown submits there is no practical reason as to why evidence from Ms Liang, or any other Australian migration agent or a solicitor practising immigration law, was not available at sentencing.
[12] I accept this new evidence meets the test of being sufficiently credible to be admitted, although it may not, strictly speaking, be able to be described as fresh. It does however constitute reliable evidence of the potential immigration consequences of a conviction. I am of the view that it is in the interests of justice to allow the appellant to rely on evidence from an immigration lawyer, rather than a “printout from the Internet”. I therefore admit the affidavit as new evidence.
Legal framework
Legal test for discharge without conviction
[13] Section 106 of the Sentencing Act 2002 permits a court to discharge an offender without conviction. Section 107 provides that a court must not do so unless satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
6 Bain v R [2007] UKPC 33 at [34]; and Lundy v R [2013] UKPC 28 at [116]–[118].
7 R v Bain [2001] 1 NZLR 638 (CA) at [10].
8 At [22]; and Bain v R [2007] UKPC 33 at [34].
9 R v Bain [2001] 1 NZLR 638 (CA) at [22].
[14] Disproportionality is not a matter of discretion, it is a matter of fact requiring judicial assessment.10 The Court should follow three steps:11
(a)The Court must consider the gravity of the offending;
(b)The Court must consider the direct and indirect consequences of a conviction on the offender; and
(c)Finally, the Court must determine whether the consequences are out of all proportion to the gravity of the offending.
Principles on appeal
[15] Appeals against the proportionality test under s 107 are by way of rehearing, with the appellate court making its own assessment of whether the criteria are established.12 If a discharge without conviction should have been granted, then there will have been a material error by the sentencing Judge, or a miscarriage of justice will have occurred for any other reason, and so the appeal against conviction must be allowed.13
Submissions
Appellant submissions
[16] On appeal, counsel for the appellant focuses on the consequence of being unable to travel to support his business. The appellant runs two businesses. He states that he regularly has to visit suppliers in Australia and the United States to maintain strong business relationships and assess stock. He has a new potential supplier in Australia, but submits that he needs to visit them in person to assess the product and formalise details of the business relationship.
10 H (CA680/11) v R [2012] NZCA 198 at [20].
11 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16]; and Prasad v R [2018] NZCA 537 at [11].
12 H v R [2012] NZCA 198 at [35]–[36].
13 Criminal Procedure Act 2011, s 232(2)(b) or (c); and Jackson v R [2016] NZCA 627 at [12].
[17] The affidavit of Ms Liang advises that the Australian immigration authorities determine whether an applicant for an entry visa passes a threshold character test and, if they do not, whether there is “another reason” for a cancellation decision to be varied. A conviction for intimate partner violence would mean that the appellant fails the Australian character test. However, he could apply for a character waiver. This means he would have to provide evidence that he will protect and comply with the expectations of the Australian community. However, Ms Liang expresses the view that the appellant “is more likely than not to fail on a character waiver”.
Crown submissions
[18] The Crown submits the overall gravity of the offending was closer to moderate than low.
[19] With regard to the fact that the appellant might not be able to travel to Australia for business, the Crown submits that the appellant’s livelihood does not appear dependent on his ability to travel to Australia. Further, the Crown submits it is not clear why he has to meet Australian suppliers in person and suggests there would be ways for the appellant to conduct his business without visiting Australia (such as requesting samples of products to be sent to him).
[20] The Crown also notes that the appellant is theoretically able to obtain a character waiver, so he is not absolutely barred from travel. Lastly, the Crown submits that the appellant’s ability to travel overseas should be a matter for the relevant immigration authorities to determine.
Analysis
[21] I will not resile from Judge Sainsbury’s view of the gravity of the offending — it was low to moderate family violence. It is relevant that it occurred in front of the appellant’s six-year-old daughter.
[22] As to the consequences of the conviction, it must be emphasised that the courts generally leave issues relating to a person’s immigration status to be determined by
the relevant authorities.14 Indeed, Judge Sainsbury noted that “if a foreign country chooses to exclude certain people from visiting it, that is their sovereign right”.15 However, there have been cases where a discharge has been granted because of the consequences that particular kinds of conviction would have on a person’s ability to travel overseas. For example, in Thompson v Police, this Court granted a discharge, noting that a conviction under the Arms Act 1983 is “likely to be viewed far more seriously by foreign immigration and customs officials”.16 Similarly, in Shakib v Police, this Court granted a discharge, again reasoning that “a conviction for particular offence [that is, providing false information to the Police] would create a real risk that [the appellant] is not able to gain entry to some of the countries he is required to visit on a frequent basis”.17
[23] In her affidavit dated 28 November 2019, the solicitor and registered migration agent, Ms Liang, states that if the applicant’s conviction remained on his record, he would fail the character test set out in s 501 of the Migration Act 1958 (Cth). The appellant would then require a character waiver. Ms Liang then states that the appellant would likely be refused a character waiver on the basis that he has no domestic connections to Australia.
[24] Although I agree with the Crown that the need for a character waiver is not an absolute bar to the appellant’s ability to travel to Australia on business, I adopt the comments of Randerson J in Iosefa v Police that it is sufficient if the Court is satisfied that there is a real and appreciable risk that such consequence would occur.18 Ms Liang’s affidavit now confirms that there is a real and appreciable risk that the appellant would be refused a visa to travel to Australia on business.
[25] What then would that mean for the appellant’s business? The sentencing Judge accepted that if the situation arose where business trips to either Australia or the United States were curtailed for no other reason than the fact that the appellant had these convictions, with the result of a real and appreciable risk that his business collapse,
14 Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011.
15 Police v Shi [2019] NZDC 12570 at [19].
16 Thompson v Police [2013] NZHC 1369 at [15].
17 Shakib v Police [2014] NZHC 2596 at [13].
18 Iosefa v Police HC Christchurch CIV 2004-404-64, 21 April 2005 at [34].
there might be a disproportionate result. However, the Judge said he did not have a sufficient evidential foundation to find that to be the case.
[26] Although there were two affidavits sworn by the appellant, dated 13 and 29 May 2019, before the Judge, they did not contain much detail above the effect on the business if the appellant was not able to travel to Australia (and the United States). I now have the advantage of an updating affidavit from the appellant dated 3 December 2019. Since the sentencing, the appellant estimates that he has lost approximately
$40,000 in sales as he does not have the stock to maintain his previous level of sales. He fears it will only get worse the longer he is unable to travel to Australia (and the United States) and does not think his business will survive long if he cannot secure new stockists.
[27] Although the Crown submits that the appellant could arrange to have samples of stock sent to him in New Zealand which would enable him to make purchasing decisions without overseas travel, I am of the view that the success of many small business enterprises relies on personal relationships. In this case the appellant is quite reliant on the availability of his stockists. Although overseas travel may not be crucial for his framing business, it would seem that it is for his memorabilia business. A stockist of memorabilia would be unlikely to send unique pieces to the appellant in New Zealand for inspection. I also accept that it is very difficult to assess the quality of memorabilia online or through photographs.
[28] I have no reason to doubt the appellant’s estimate of sales lost since sentencing or his assessment of the long term sustainability of his business without overseas travel. This material was not before the sentencing Judge.
Result
[29] In those circumstances, the appeal is allowed on the basis of new evidence not available to the sentencing Judge. The direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. 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.
Woolford J
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