Tsyan v Police - [2021] NZHC 1264

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-000014

[2021] NZHC 1264

BETWEEN
SHEN TSYAN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 3 May 2021

Appearances:

DPH Jones QC for Appellant TS Jenkin for Respondent

Judgment:

1 June 2021

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 1 June 2021 at 3.00pm

Registrar/Deputy Registrar

Date…………………..

Solicitors: Meredith Connell, Auckland
Mark Lee Lawyers, Auckland

To: D Jones QC, Auckland

TSYAN v NZ POLICE [2021] NZHC 1264 [1 June 2021]

Introduction

[1] Shen Tsyan pleaded guilty to one charge of assault.1 He applied for a discharge without conviction. On 11 November 2020, Judge P J Sinclair declined his application.2 Mr Tsyan appeals that decision.

Facts

[2] On 19 November 2017, Mr Tsyan parked his vehicle in a reserved parking space outside of a business. The owner of the business arranged for it to be towed away. The tow truck arrived and started to remove the car. Mr Tsyan then returned. He approached the victim (the business owner) and yelled at him in an aggressive manner. He demanded that the victim pay the towing fee. The victim refused. Mr Tsyan then advanced and punched the victim on the left side of his neck. Mr Tsyan was then pulled away by other people nearby. The victim felt dizzy afterwards but did not otherwise suffer any injuries.

[3] Mr Tsyan pleaded guilty, although not at the earliest opportunity. He attended a restorative justice session, where he apologised to the victim. He reported at that conference that he recognised he had an anger management issue, and he had stopped consuming alcohol since the incident. It is not suggested Mr Tsyan attended any anger management programmes or similar rehabilitative programmes. In 2015, Mr Tsyan had received a discharge without conviction for similar offending, and in 2016 he had received diversion for another assault charge. This was therefore the third incident of similar violence. There is, however, no suggestion of any more recent offending by Mr Tsyan of this nature.

[4] Mr Tsyan holds a Russian passport.3 He does not hold a Chinese passport, but both of his elderly parents live in China. They are unable to travel for medical reasons. Mr Tsyan would be required to apply for a visa to visit China to see his parents, but is concerned that his conviction will likely make it impossible for him to get one.

1      Crimes Act 1961, s 196. Maximum penalty one year’s imprisonment.
2      Police v Tsyan [2020] NZDC 23329.
3      Having previously been a Chinese citizen, but renouncing his citizenship to take up Russian citizenship when he lived in that country with his (then) wife.

The law

[5] Sections 106 and 107 of the Sentencing Act 2002 enable a court to discharge an offender without conviction, provided the court is satisfied the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. The…

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 Tsyan v Police

Details

AGLC: Tsyan v Police [2021] NZHC 1264
Case: [2021] NZHC 1264
Decision Date: 1 June 2021

CaseChat Overview and Summary

Shen Tsyan appealed against the District Court's decision to decline his application for a discharge without conviction. Tsyan had pleaded guilty to assaulting another person by punching them in the neck. He had attended a restorative justice session and apologised to the victim. Tsyan sought a discharge without conviction because a conviction would likely prevent him from obtaining a visa to visit his elderly parents in China. The High Court assessed the gravity of the offence and the consequences of a conviction to determine if the latter was out of proportion to the former. The Court found the gravity of the offending to be low to moderate, taking into account the mitigating factors such as the guilty plea, expressions of remorse, and participation in restorative justice. However, the Court concluded that the consequences of a conviction, namely the likelihood of being unable to obtain a visa to visit his parents, were out of proportion to the gravity of the offence. The Court granted the appeal, quashed the conviction, and ordered a discharge without conviction.

Orders