Tong v Police - [2013] NZHC 3194

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2013-404-000232 [2013] NZHC 3194

BETWEEN JIN SONG TONG Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 2 December 2013

Appearances: J Moroney for Appellant
B Hamlin for Respondent

Judgment: 2 December 2013

(ORAL) JUDGMENT OF ANDREWS J [Appeal against conviction and sentence]

This judgment is delivered by me on 2 December 2013 at pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Solicitors/Counsel:
Thode Utting & Co, Albany
Meredith Connell, Auckland

TONG v POLICE [2013] NZHC 3194 [2 December 2013]

Introduction

[1] On 6 August 2013 the appellant was sentenced by Judge G A Fraser in the District Court at Auckland to two months’ community detention and 100 hours of community work, having pleaded guilty to one charge of male assaults female, and one charge of assault with intent to injure.1 He has appealed to this Court. He contends that the Judge should have granted his application for a discharge without conviction. In his notice of appeal the appellant contended in the alternative that the
sentence imposed was manifestly excessive. However, Mr Moroney has advised today that that is no longer pursued.

Facts

[2] The victim of the appellant’s offending was his then girlfriend. The appellant came to New Zealand in September 2011, at the age of 32. One month after his arrival he met the victim, and they began a relationship.

[3] The first assault occurred on the night of 20-21 November 2011, at around

9.00 pm. The appellant and the victim had an argument about whether the victim wanted to end the relationship. They subsequently returned to the victim’s home, and the victim went to bed. At about 2 am she woke up and found that the appellant had not come to bed. She got up to see where he was. She found the appellant, and he began questioning her about their relationship. The victim did not respond. The appellant became angry and slapped the victim across the face with an open hand. After the initial strike he grabbed her, and repeatedly slapped her across the face on both cheeks, two or three times. The victim suffered a minor bruise and a red mark on the left side of her face. She also experienced ringing in both ears for about half an hour after the assault.

[4] The second assault occurred in the early hours of 8 December 2011. At about midnight, the appellant and the victim were at an apartment in central Auckland, and had another argument. The victim was sitting on the floor of the lounge, when the
appellant approached her and slapped her on the left side of her face. She fell

1 Police v Jon Song Tong DC Auckland CRI-2012-044-197, 6 August 2013 (“District Court sentencing”).

backwards. The appellant grabbed her by her top, pulled her forwards, and continued to slap her repeatedly, causing her to fall to the ground. The appellant then took hold of the victim and rolled…

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 Tong v Police

Details

AGLC: Tong v Police [2013] NZHC 3194
Case: [2013] NZHC 3194
Decision Date: 2 December 2013

CaseChat Overview and Summary

The appellant, Jin Song Tong, has appealed against his conviction and sentence in the High Court of New Zealand. He was sentenced by Judge G A Fraser in the District Court at Auckland to two months of community detention and 100 hours of community work after pleading guilty to charges of male assaults female and assault with intent to injure. The appellant contends that the District Court Judge should have granted his application for a discharge without conviction. He also argued in the alternative that the sentence imposed was manifestly excessive; however, this submission was later withdrawn. The victim of the appellant's offending was his then girlfriend. The first assault occurred in November 2011, when the appellant slapped the victim across the face multiple times, causing her to suffer a minor bruise and ringing in both ears. The second assault occurred in December 2011, when the appellant slapped the victim on the left side of her face, pulled her forward, and continued to slap her repeatedly, causing her to fall to the ground. The appellant then assaulted the victim further by rolling her onto her stomach and slapping her back and buttocks. The appellant told the victim that he wanted to "disable" her and pushed her head into a glass door. He then began forcefully pulling the victim's hair and dragged her across the room before hitting her face with a pillow.

The District Court Judge noted that both charges were serious, with sustained violence on both occasions. The Judge also noted that striking a victim to the head is an aggravating factor, as is placing a hand over the victim's mouth. The Judge considered the consequences for the victims, as had been set out in a number of victim impact reports. Mitigating factors included the appellant's attendance at anger management and further counselling, having no previous convictions, not having offended subsequently, and expressing his remorse. The Judge accepted that there would be a real and appreciable risk in regard to the appellant's immigration status, potentially his business, and his emotional wellbeing, but did not accept that convictions would be out of all proportion to the gravity of the offending. The Judge declined to discharge the appellant without conviction.

The High Court considered the issue of whether the District Court Judge erred in refusing to grant a discharge without conviction. The Court concluded that the Judge was correct in his assessment that both offences were sustained and that the seriousness of the appellant's offending well outweighed the consequences in relation to the appellant's personal circumstances. The Court found that the Judge did not err in refusing to grant a discharge without conviction. The Court did not need to deal with the matter of the sentence being manifestly excessive, as it was not pursued by the appellant.

Orders