Song v Police - [2023] NZHC 3324

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-480

[2023] NZHC 3324

BETWEEN
YUANHUI SONG

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 14 November 2023

Appearances:

Z Chen and C Holland for Appellant R Van Boheemen for Respondent

Judgment:

22 November 2023

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Wednesday, 22 November 2023 at 12:30 pm.

Registrar/Deputy Registrar

Solicitors:Meredith Connell (Office of the Crown Solicitor), Auckland Righteous Law Limited, Auckland

SONG v NEW ZEALAND POLICE [2023] NZHC 3324 [22 November 2023]

[1] At about 11:46 pm on Saturday, 20 May2023, Yuanhui Song drove with excess breath alcohol on Greville Road, Albany, Auckland. His manner of driving did not attract Police attention. Instead, he was stopped at a road safety check point. When spoken to by Police he exhibited signs of recent alcohol intake. His breath alcohol reading was found to be 472 micrograms of alcohol per litre of breath. In explanation, he said he had a few beers prior to driving.

[2] On 22 June 2023, Mr Song pleaded guilty to one charge of driving with excess breath alcohol.1 He sought a discharge without conviction.

[3] On 18 August 2023, Judge B R Pidwell declined the application for a discharge without conviction.2 Instead, she convicted and fined Mr Song $400 and disqualified him from driving for six months. Mr Song now appeals Judge Pidwell’s refusal to grant him a discharge without conviction.

Discharge without conviction

[4] Section 106 of the Sentencing Act 2002 (the Act) provides that the Court may discharge an offender without conviction following a plea or finding of guilt. In order to grant a discharge without conviction, the Judge must be satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.3

[5] This proportionality assessment is to be made in accordance with the three- step approach set out by the Court of Appeal in Z (CA447/2012) v R:4

(a)the gravity of the offending, taking into account all aggravating and mitigating factors of the offending and the offender;

1      Land Transport Act 1998, s 56(1), (3)(a) and (b). Maximum penalty: Three months’ imprisonment or $4,500 fine; and mandatory minimum six months’ disqualification from holding or obtaining a driver licence.
2      New Zealand Police v Song [2023] NZDC 17793.
3      Sentencing Act 2002, s 107.
4      Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27].

(b)the direct and indirect consequences of a conviction for the offender; and

(c)whether those consequences are “out of all proportion” to the gravity of the offending.

[6] Even 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 would be rare for the Court to refuse a discharge in such circumstances).5

Approach on appeal

[7] An appeal against a refusal to discharge without conviction…

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.

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Details

Case: [2023] NZHC 3324
Decision Date: 22 November 2023

CaseChat Overview and Summary

Yuanhui Song was convicted of driving with excess breath alcohol in the District Court and appealed against the refusal of a discharge without conviction. The appeal was heard in the High Court of New Zealand. The legal issues in this case centered around the proportionality of the consequences of Mr. Song's conviction against the gravity of his offence, and whether these consequences were out of all proportion, thereby justifying a discharge without conviction under Section 106 of the Sentencing Act 2002. Mr. Song argued that the consequences of his conviction, particularly regarding international travel and the potential impact on his son's education and his business, were out of all proportion to the gravity of his offence. The Court considered Mr. Song's arguments regarding the potential impact of his conviction on his ability to maintain a Top Talent Pass Scheme visa for Hong Kong and to obtain visas for Australia, the USA, and the UK. However, the Court found that there was insufficient evidence to conclude that these consequences were likely to occur. The Court also considered the indirect consequences on Mr. Song's family and business, but concluded that these consequences were not out of all proportion to the gravity of the offence. The appeal was dismissed, and the decision of the District Court was upheld.

Orders