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  of  a  conviction,  the  Judge observed:

[14]     …As I have indicated there is a likelihood of deportation and an inability to obtain a partnership work visa in the event that a conviction is entered.   That, as I have said, leaves your wife, if that eventuates, with having to make a choice whether she moves back to China with your child or whether she remains in New Zealand.   I acknowledge also that you are already  exposed  in  any  event  based  by  the  fact  that  you  have  been overstaying in New Zealand for three and a half years.   The immigration authorities know about this offending, although at this point no conviction sits on your record. The direct and indirect consequences of the conviction are as I have just earlier indicated.

[6]      The Judge then assesses whether the identified consequences are out of all proportion to the gravity of the offending.  The Judge observes that it appears that the offending appears to be “more than a one off”.1  The Judge observes:

[16]      …You had struck the dog at an earlier point in the day as well.  We are dealing here with a small defenceless animal against the powerful force of your punches honed in the gym.   We are dealing here with a situation where an animal was punched to death and then callously burnt and disposed of at a beach.   The consequences are accepted as real and appreciable although not absolutely certain and they do not have to be, to be factored in. I have to weigh up all of the factors including the mitigating factors and whilst one of those may be your family having to return to China as an option and you having to leave New Zealand, I am of the view that the consequences of conviction are outweighed by the gravity of the offending. There  is  no  significant  disproportion  of  consequences  in  relation  to  the gravity  of  the  offending.    This  is  serious  animal  welfare  offending  and despite what you have done to mitigate the gravity of the offending, I am not satisfied that on the balance that the consequences are out of all proportion to the gravity of the offending and the s 106 discharge is not granted.

[7]      Since the sentence, Mr Tao has been served with a deportation order.

Grounds of appeal

[8]      The stated grounds of appeal are:

(a)       The decision refusing to discharge without conviction was contrary to principle;  and/or

1      New Zealand Police v Tao [2015] NZDC 15318 at [16].

(b)      The Judge failed to consider all relevant matters;  and/or

(c)      There is an error in the sentence and a different sentence should be imposed i.e. a discharge without conviction.

Application to adduce fresh evidence

[9]      Mr Tao sought leave to adduce fresh evidence of:

(a)      Alastair McClymont, outlining his independent expert opinion on the consequences of a conviction on the appellant’s immigration circumstances;

(b)The appellant’s affidavit outlining his attempts to volunteer for one or more animal organisations, proof of his attendance at an anger management course, proof of his voluntary donation to a charitable organisation, proof of his marital relationship and other relevant materials such as his certification of studies and supporting letters from family and friends.

[10]     I do not propose to dwell long on this application. As I will shortly explain, I will approach the exercise of discretion under s 107 afresh.  I prefer to approach that exercise based on the best available information, particularly as it relates to the consequences for the offender.  It can also be said that the more recent issuance of a deportation  notice  is  a  new  factor,  bringing  into  focus  the  consequences  of conviction.  Moreover, and in any event, for reasons that I will shortly explain, the fresh evidence has not had a material impact on the outcome.

Jurisdiction

[11]     An appeal against a decision not to discharge without conviction is an appeal against the evaluative assessment pursuant to s 107 of the Sentencing Act 2002

applies rather than exercise of discretion.2   The normal appellate principles in Austin

Nichols & Co Inc v Stichting Lodestar apply.3

Statutory frame

[12]     Section 107 states:

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.

[13]     The leading authority in terms of s 107 is Z(CA447/2012) v R.4   The Court of Appeal in that case identified a three step process for the purposes of assessment namely:

(a)       Step 1 – Assess the gravity of the offending, including aggravating and mitigating factors personal to the offender;

(b)Step 2 – Assess the direct and indirect consequences of conviction on the offender;  and

(c)       Step 3– Assess whether the consequences are out of all proportion to the offending.

[14]     I propose to address the grounds of appeal within the frame provided by Z v

R.

Step 1 – Aggravating and mitigating factors

[15]     Mr Deliu emphasised the following:

(a)      The offending was not pre-meditated, rather it was simply a reaction

to the dog’s defecating on his bed and a moment’s lack of judgment.

2      Edwards v R [2015] NZCA 583.

3      See Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141. See also Reng v NZ Police [2014] NZHC 2586 and JMT v R [2015] NZHC 1936.

4      Z(CA447/2012) v R [2013] NZCA 599.

(b)	The  Judge  erred  in  referring  to  alleged  facts  extraneous  to  the summary of facts upon which Mr Tao pleaded guilty – namely facts
suggesting that Mr Tao had previously injured or assaulted the dog.
(c)	Mr Tao has no history of violent offending and pleaded guilty early to
the offence, co-operating fully with the police.
(d)	Mr Tao voluntarily took measures including making a donation to a
charitable organisation, voluntary community work and completion of an anger management course.
(e)	All of these factors taken together demonstrate that, contrary to the Judge’s assessment, the offending is in the low to moderate category
in terms of seriousness.
[16]	Ms	McCool   for   the   respondent   supports   the   Judge’s   assessment   of

seriousness, emphasising that Mr Tao had attacked the dog earlier in the day and that once the dog had died Mr Tao had transported it to the beach and buried it in order to dispose of it, demonstrating a level of forethought.   Ms McCool accepts that Mr Tao’s offending must be tempered against mitigating factors and that these were taken into account by the Judge including Mr Tao’s lack of previous convictions.  To the  extent  that  Mr  Tao’s  completion  of  sentence  is  taken  into  account,  it  is  a somewhat artificial matter and does not mitigate in the gravity of the offending itself.

Assessment

[17]     It appears that the Judge may have erred by having regard to Mr Tao’s prior alleged conduct, namely an earlier attack on the dog.  I will therefore examine the seriousness of the offending afresh.

[18]     The salient facts are that:

(a)       Mr Tao punched a puppy several times causing its death;

(b)      Mr Tao pleaded guilty and assisted and co-operated with the police;

(c)       Mr Tao has taken voluntary measures (as set out by Mr Deliu) in response to the offending.

[19]     In my view, punching a puppy to death is serious offending. A maximum sentence of three years may be imposed for offending of this kind, together with a fine of $50,000, illustrating a clear statutory policy of deterrence and denunciation. While the present offending is not the worst of its kind, the violence meted out to the puppy for biting and defecating was utterly disproportionate and brutal.  I accept that the gravity of the offending overall is mitigated to a degree by the factors identified by Mr Deliu, including self imposed rehabilitation and his otherwise good character. But even so, I do not consider that the Judge erred overall in his assessment.

Step 2 – Direct and indirect consequences

[20]     Mr Deliu submitted that it is highly likely that if Mr Tao’s conviction stands, the Minister will not cancel his deportation order.  If he is then deported, Mr Tao will be facing a ban of five years.  Related consequences include:

(a)       Separation from his wife and child, or relocating the child to a foreign country;

(b)      Mr Tao will have his studies in English and construction cut short. [21]        Ms McCool responded:

(a)       INZ are aware of the offending, so it is still likely to be a relevant consideration;5

(b)      There is a real and appreciable risk of deportation in any event;

(c)       The separation of Mr Tao from his family is a natural consequence of deportation; and

5      Referring to Xue v New Zealand Police [2015] NZHC 125; Zhao v Police [2014] NZHC 3121.

(d)      INZ and the Minister are properly reposed with the power to consider

Mr Tao’s circumstances for the purposes of deportation.

Assessment

[22]     The threshold test for Step 2 is simply whether there is a real and appreciable risk that identified adverse consequences will ensue.6  I accept that the convictions will be a material factor in the Minister of Immigration’s decision whether to cancel the deportation order. The offending reflects on Mr Tao’s character and suitability for residency and might  conceivably influence the Minister’s decision to  decline to cancel the deportation order. I therefore proceed on the basis that the convictions will

increase the risk of deportation.

Out of all proportion

[23]     The third step to consider is whether the consequences foreshadowed above are out of all proportion to the gravity of the offending.

[24]     Mr Deliu submits that Mr Tao has accepted responsibility pleading guilty at an early opportunity and has taken steps to address the underlying cause of the offending.  He says Mr Tao has no history of violent offending and is otherwise of good  character.    He  submits,  therefore,  that  deportation  would  be  out  of  all proportion to the gravity of his offending.

[25]     Ms McCool submits that there is already a significant risk of Mr Tao being deported because he has been living in New Zealand unlawfully for four years and already has a criminal conviction.  She submits that the risk is compounded by the

fact that INZ is aware of this offending.

6      Refer Edwards v R [2015] NZCA 583 at [24], citing DC (CA47/13) v R [2013] NZCA 255 at

[43].

Assessment

[26]     For the purposes of this part of the assessment I adopt the approach taken by Asher J  in  Zhang  v  Ministry  of  Economic  Development  and  in  particular  the following:7

There is nothing that requires the Courts to intervene to try and impose their perception of what the right immigration consequences should be.  That is best left to the immigration authorities.   But a Court’s assessment of culpability in sentencing exercise may assist those authorities.   And there will always be occasions where in a finely balanced case a discharge may be warranted on these types of grounds.

[27]     I see nothing in Mr Tao’s case that suggests to me that his level of culpability is so low that it ought not to factor in the Minister’s assessment, or put another way, that the Minister ought to be deprived of the capacity to fully assess the suitability of a cancellation order by unfettered reference to Mr Tao’s offending.  The seriousness of the offending speaks  for itself  and the attendant cruelty are matters that are properly before the Minister.

[28]     Plainly there must be some sympathy for the family and the consequences that might flow from deportation.   But Parliament has reposed in the Minister the power to consider these matters in light of statutory policy and all relevant international obligations (including the right to a family life),8 and I am not prepared to assume that undue weight will be given to Mr Tao’s conviction history in the weighing exercise.

[29]     Furthermore, the convictions are one risk factor only and not the primary contributing reason for deportation. Mr Tao’s unlawful residency is the genesis of the problem he now finds himself in.  The additional risk caused by the convictions for offending in this case must not be conflated with this underlying, primary cause of any deportation. Rather I am concerned with the specific impact of the convictions on the decision making exercise. In my view it cannot be said that this specific

impact is out of all proportion to the serious gravity of the offending.

7      Zhang v Ministry of Economic Development HC Auckland, CRI-2010-404-453, 17 March 2011, at [14].

8      As discussed in Ye v Minister of Immigration [2009] NZSC 76, [201] 1 NZLR 104 at [28] – [29].

[30]     In the result, I consider that the additional risk of deportation is not inherently disproportionate to the gravity of his offending, including his personal culpability, unlawful residency and otherwise good character.

Outcome

[31]     The appeal is dismissed.