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 her onto her stomach, before slapping her back and buttocks.

[5]      The appellant then told the victim to go to sleep.  She replied that she didn’t want to, because she was afraid of him.  The appellant asked the victim if she would “die for” him.  When she said no, the appellant said he wanted to “disable” her.  He picked up a blanket, threw it over her, and said he wanted her to feel the pain she caused him.   He then pushed the victim’s head into a glass door that led onto the balcony of the apartment.  He removed the blanket and began forcefully pulling the victim’s hair, then dragged the victim by her hair, about two metres across the room, before hitting her face with a pillow.

[6]      The victim attempted to escape the apartment, but was prevented by the appellant.  He grabbed the victim and pulled her robe off.  When she managed to open the apartment door, he put his hand over her mouth in an attempt to stop her from screaming for help.  When the victim stopped yelling, the appellant let her go, and she ran straight to the Auckland Central Police Station.   As a result of the assault, the victim suffered serious bruising to her upper left arm, back, and upper left thigh.

District Court sentencing

[7]      The  appellant  first  appeared  in  the  District  Court  on  the  morning  of

9 December 2011, having been charged in respect of the assault the previous night. He was subsequently charged in respect of the November assault, and appeared for the first time on that charge on 17 January 2012.  Both charges were adjourned on several occasions before the appellant’s eventual plea and sentencing on 6 August

2013.

[8]      In relation to the application for discharge without conviction, the Judge recorded in his sentencing notes that the application for discharge without conviction (under s 106 of the Sentencing Act 2004) was on the grounds that the appellant had accepted that he was wrong and made no excuses for his behaviour; the appellant

understood the impact of his offending on the victim; he had pleaded guilty at the earliest opportunity; he had taken steps since his offending to address his issues, without the intervention of the Court; the appellant’s previous good character and the “out of character” nature of his offending, and the consequences of a conviction.  In the District Court it was submitted that taking into account those matters, the consequences of a conviction with respect to his immigration status, the impact on

his  new  partner,  the  appellant’s  business  in  New  Zealand,2   and  his  emotional

wellbeing would be out of all proportion to the gravity of his offending.3

[9]      The Judge noted that both of the charges were serious, there having been sustained violence on both occasions.  The charge of assault with intent to injure was aggravated by the earlier offending.  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 also noted the consequences for the victims, as had been set out in a number of victim impact reports.  Mitigating factors were that the appellant had attended anger management and further counselling, had no previous convictions, had not offended

subsequently, and had expressed his remorse.4

[10]     The Judge accepted that there “would be a real and appreciable risk” in regard to the appellant’s immigration status, and potentially his business, in that if he were forced to return home, there would be an impact on his business, and it might mean that the appellant’s partner would have to return to China with him.  He did not accept there would be any other impact on the appellant’s partner, as she already knew about his offending.  The Judge noted that he had no information regarding the appellant’s wellbeing, but accepted that it “perhaps goes without saying” that consequences  in  relation  to  immigration  and  business  would  impact  on  the

appellant’s emotional wellbeing.5

[11]     In declining to discharge the appellant without conviction, the Judge noted

that there were “many decisions where the sentencing authority had indicated that

2      The appellant said in his affidavit in support of the application for discharge without conviction that he was in New Zealand on a student visa, but wanted to apply for a business immigrant visa, having invested money in a recycling business, processing polystyrene, plastics, and e-waste.

3      District Court sentencing at [3]–[4].

4      At [14]–[16].

5      At [18]–[20].

Immigration should have all the information before it in determining an immigration outcome”.  The Judge also noted that the consequences in relation to the appellant’s business assumed that it could be sold to another party.6

[12]     The  Judge  accepted  that  the  possible  consequences  of  convictions  were serious, but also considered that that the offending itself was extremely serious; it was not a one-off, it was sustained.   It required a sentence of denunciation and deterrence.    Taking  into  account  all  of  the  relevant  factors,  the  Judge  was  not satisfied that convictions would be out of all proportion to the gravity of the offending.7   Discharge without conviction was declined.

Discharge without conviction

[13]     I turn now to the issue as to whether the Judge erred in refusing to grant a discharge without conviction.  A decision whether to discharge an offender without conviction is a matter of fact which requires a judicial assessment.   It is not the exercise of a discretion.  This Court considers an appeal against refusal to discharge without conviction by considering the matter afresh.   However, before the Judge reaches the point of deciding whether to grant a discharge the Court must be satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.  In Z v R, the Court of Appeal set out the

approach to be followed:8

(a)       First, the court identifies the gravity of the offending, considering the aggravating and mitigating factors;

(b)Secondly, the court identifies the direct and indirect consequences of conviction;

(c)       Finally, the court determines whether the consequences would be out of all proportion to the gravity of the offending.

6      At [21]

7      At [22]–[23].

8      Z v R [2012] NZCA 599 at [27].

Moroney submitted for the appellant that the Judge had wrongly assessed the gravity of the appellant’s offending.   It was accepted that the appellant’s offending was serious and that the second offence was sustained.  However, at least in his written submissions, it was submitted that the first offence could not be described as sustained.

[15]     To deal with that point first, I do not accept that the Judge wrongly described both offences as being sustained.   The appellant’s repeated and ongoing assault comprising multiple slaps to the face during the 20 November offending, can only be described as sustained.   Such an offence is clearly different from a single strike, which of course is equally an assault.  I conclude that the Judge was correct in his assessment that both offences were sustained.

[16]     It was also submitted that the Judge had put too little weight on the serious consequences of a conviction and in doing so  that the Judge failed to take the appellant’s particular personal circumstances into account.  I have set out earlier that the  Judge  noted  in  his  sentencing  notes  that  the  appellant  had  no  previous convictions, had not re-offended, had attended anger management and counselling, and had expressed his remorse.  The weight the Judge gave to these matters was for the Judge to assess.  It is clear from the sentencing notes that the Judge’s view was that the seriousness of the appellant’s offending well outweighed the consequences in relation to the appellant’s personal circumstances.

[17]     As noted earlier, it was accepted that the Judge recognised that a conviction would  have  a  significant  impact,  in  particular  in  respect  of  the  appellant’s immigration status.  In his submissions Mr Hamlin referred me to the judgment of Asher J in Zhang v Ministry of Economic Development in which his Honour noted that it is not for this Court to speculate as to the effect that a conviction may have on an offender’s immigration status.9    Mr Hamlin also submitted that in any event the appellant’s immigration status would be at least questioned given that it appeared

that  he  had  somehow  commenced  and  carried  on  his  business  while holding  a

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

Immigration Authorities  were  aware  of  the  appellant’s  offending.    However,  he maintained his submission that had a discharge without conviction been granted the appellant would have then been on a better footing in order to make his case to the Immigration Authorities for being allowed to remain in New Zealand.

[18]     I accept Mr Hamlin’s submission that the appellant immigration status is a matter to be determined by the Immigration Authorities and it is simply not for this Court to speculate as to the outcome.  Accordingly, I am not satisfied that the Judge erred in his consideration of the application for discharge without conviction.

[19]     I  have  also  stood  back  and  considered  the  matter  afresh.    Mr  Moroney referred me, in his written submissions, to the judgment in McDonnell v Police, which was a successful appeal against refusal to discharge without conviction.10    It was acknowledged that McDonnell was not a case about domestic violence, as this is.  Having reviewed the judgment I do not consider that case is of assistance here as the circumstances of the offending, and the process of that matter through the Court,

were quite different from the present case.   However, the case is noted for his Honour’s comment that the fact that an offence is serious is not determinative as to whether an application for discharge should be granted.

[20]   Having considered the gravity of the appellant’s offending, and the consequences of convictions as noted in the appellant’s submissions, I have reached the same conclusion as did the Judge.  That is, that the consequences of conviction are not out of all proportion to the gravity of the appellant’s offending.  I therefore conclude that the Judge did not err in refusing to grant a discharge.

[21]     As the appellant did not pursue the submission that the sentence imposed was manifestly excessive, I am not required to deal with that matter.

10     McDonnell v Police [2012] NZHC 2480.

Andrews  J