Tao v Police - [2015] NZHC 3324

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-258 [2015] NZHC 3324

BETWEEN
BOQING TAO

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 9 November 2015

Appearances:

F C Deliu for Appellant
C McCool for Respondent

Judgment:

18 December 2015

JUDGMENT OF WHATA J

This judgment was delivered by Justice Whata on
18 December 2015 at 3.30 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:
Justitia Chambers, Auckland
Meredith Connell, Crown Solicitors, Auckland

TAO v NEW ZEALAND POLICE [2015] NZHC 3324 [18 December 2015]

[1] Mr Tao, is a Chinese national. He killed a puppy by punching it to the head five or six times. He was convicted and sentenced to 40 hours’ community service. Since his sentencing Mr Tao has been served with a Deportation Notice.

[2] Mr Tao appeals against his conviction on the basis that:

(a) The refusal to discharge him was contrary to principle.

(b)The Judge did not have regard to relevant mitigating factors of the offending (a momentary lapse in judgment) and the offender (a person of good character who is generally remorseful).

(c) The issue of the deportation notice as a material change in circumstances and it is highly likely that Mr Tao will be deported and separated from his family or alternatively his family will be forced to live in another country, where his New Zealand born son will have limited, if any rights.

Background

[3] Judge G A Fraser described the facts of the offending in this way:

[12] … The summary says that you were at the address of your flatmate and the six month old Pomeranian dog belonged to an associate of your flatmate. The summary says you became angry when the dog bit your finger and defecated on your bed. You picked up the dog and placed it outside of the bedroom but the dog ran back into your bedroom. This enraged you. You grabbed hold of it with your left hand and you punched the dog three to four times in the head using your right fist. The actions were witnessed by your flatmate who pleaded with you to stop the assault on the dog. The dog began experiencing breathing difficulties and subsequently died some moments later. The dog was then transported to a beach in West Auckland and disposed of by you. You said that you punched the dog because you were angry that it had bitten you and defecated on your bed.

[4] In dealing with the gravity of the offending the Judge observed:

[13] In terms of factors that might decrease the gravity, I acknowledge that you have no previous convictions. You have entered a guilty plea at an early time. I have mentioned the payment that you are prepared to make. I acknowledge you are someone of previous good character, and that you have

done community work and you were prepared to do restorative justice but that was not available.

[5] As to the direct and indirect 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 Tao v Police

Details

AGLC: Tao v Police [2015] NZHC 3324
Case: [2015] NZHC 3324
Decision Date: 18 December 2015

CaseChat Overview and Summary

In the High Court of New Zealand, Mr. Tao, a Chinese national, appeals against his conviction for animal welfare offences. He had killed a puppy by punching it multiple times, resulting in its death. Mr. Tao was sentenced to 40 hours of community service and subsequently received a Deportation Notice. The appeal centred on the grounds that the refusal to discharge him without conviction was contrary to principle, the judge did not consider relevant mitigating factors, and the deportation notice as a material change in circumstances.

The court examined whether the refusal to discharge Mr. Tao without conviction was contrary to principle and if the judge failed to consider all relevant mitigating factors. The appeal also questioned whether the consequences of a conviction, particularly the risk of deportation, were out of all proportion to the gravity of the offending. Mr. Tao's voluntary actions post-offending, such as donations to a charitable organisation, community work, and anger management courses, were highlighted as mitigating factors.

The court assessed the gravity of the offending, the direct and indirect consequences of a conviction, and whether these consequences were out of all proportion to the offending. The court found that while the offending was serious, the mitigating factors did not significantly reduce its gravity. The risk of deportation, while substantial, was not considered disproportionate to the seriousness of the offence, particularly given Mr. Tao's unlawful residency in New Zealand.

Ultimately, the court dismissed the appeal, upholding the original decision and sentence. The consequences of the conviction, including the risk of deportation, were deemed proportionate to the gravity of the offending. The court concluded that the Minister of Immigration was best placed to assess the suitability of cancelling the deportation order, taking into account all relevant factors.

Orders