Xu v Department of Corrections

[2019] NZHC 472

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-79

[2019] NZHC 472

BETWEEN

KANG XU

Applicant

AND

DEPARTMENT OF CORRECTIONS

Respondent

Hearing:	15 March 2019 (Telephone conference)
Counsel:	A Simperingham for applicant T A Simmonds for respondent
Judgment:	15 March 2019

ORAL JUDGMENT OF KATZ J

Solicitors:T A Simmonds, Lorne Street Chambers, Auckland A Simperingham, Woodward Chrisp, Gisborne

XU v DEPARTMENT OF CORRECTIONS [2019] NZHC 472 [15 March 2019]

[1]    Following a lengthy judge-alone trial I found Kang Xu guilty of various charges relating to her involvement in a large-scale mortgage fraud scheme that was perpetrated on the Bank of New Zealand (“BNZ”) and ANZ Bank New Zealand Limited (“ANZ”).

[2]    On 3 August 2018 I sentenced Ms Xu to 12 months home detention.1 I recorded in my sentencing notes that that was a fairly lenient sentence, and that I had exercised a considerable degree of compassion in respect of Ms Xu’s personal circumstances. Those circumstances included that she had a school aged child at home, and heavy responsibilities for the care of her elderly parents and also those of her husband, Kang Huang. Mr Huang had already been imprisoned in respect of his own involvement in the fraudulent mortgage fraud scheme.

[3]    Ms Xu now applies to suspend her sentence of home detention for a period of two weeks, between 16 March and 23 March 2019, to enable her to accompany her mother to travel to China for the purpose of attending her uncle’s funeral. Ms Xu’s uncle died on 13 March 2019. His funeral will be held on 18 March 2019 in China. Ms Xu and her 78-year-old mother would like to travel to China to attend the funeral. The application was filed this morning and is being heard today via telephone conference, given the urgency.

[4]    Ms Xu deposes that she and her mother have a significant family connection with the deceased. Ms Xu’s mother does not speak English and she has a variety of health issues. She would not be able to travel to China alone without anyone to accompany her. Ms Xu deposes that there is no alternative person who can assist. She says that it will cause her and her mother significant distress if they are not able to attend her uncle’s funeral.

1      R v Xu, Chen and Jiang [2018] NZHC 1971.

[5]    The application is made pursuant to s 80F(1)(d)(i) of the Sentencing Act 2002 (“the Act”). Section 80F relevantly provides as follows:

80F Application for variation or cancellation of sentence of home detention

(1)  An offender who is subject to a sentence of home detention, or a probation officer, may apply for an order under subsection (4) on the grounds that—

…

(d)having regard to any changes in circumstances since the sentence was imposed and to the manner in which the offender has responded to the sentence,—

(i)  the rehabilitation and reintegration of the offender would be advanced by the remission, suspension, or variation of any special conditions, or the imposition of additional special conditions; …

(4)   On an application under subsection (1)… the court may, if it is satisfied that the grounds on which the application is based have been established,—

(a)remit, suspend, or vary any special conditions imposed by the court, or impose additional special conditions

…

[6]    In my view the application is misconceived. Ms Xu is not seeking to remit, suspend or vary any of the special conditions of her home detention. Ms Xu only has two special conditions of home detention. They relate to the requirements that she attend and complete all counselling and programmes recommended by her probation officer.

[7]    The requirement not to leave a home detention residence is a standard condition of home detention, as set out in s 80C(2)(b) of the Act. That condition must be complied with unless one of the exceptions in s 80C(3) apply. The exceptions enable a probation officer to approve a person to leave their home detention address for various reasons, such as seeking urgent medical or dental treatment or attending approved activities or programmes. The present circumstances do not appear to fall within the specified exceptions, which is presumably why this application has been brought.

[8]    Ms Xu is asking this Court to suspend or vary a standard condition of home detention, not a special condition. Section 80F does not enable a Court to suspend or vary standard conditions of home detention. The standard conditions of home detention are administered by Corrections. I note that Corrections do not oppose this application. Obviously, however, Corrections’ lack of opposition does not confer any jurisdiction on the Court to grant the application. The Court’s jurisdiction derives from the Act. For the reasons outlined, it is my view that this Court does not have jurisdiction to grant the application. Section 80F of the Act is simply not directed to the current circumstances.

[9]    For completeness, I note that even if this Court did have jurisdiction under s 80F (contrary to my view) I would not have been willing to grant the application.

[10]   Mr Simperingham submitted, on behalf of Ms Xu, that her uncle’s death is a relevant “change in circumstances” and that allowing Ms Xu to attend her uncle’s funeral in China would advance her rehabilitation and reintegration. That is because, he submitted, attending the funeral would help Ms Xu to maintain and strengthen her family relationships and allow her and her mother to properly grieve for the loss of her uncle. He submits that this would help decrease the risk of any future offending by Ms Xu.

[11]   The death of Ms Xu’s uncle in China is not, in my view, a relevant “change of circumstances”. Homburg v R bears some similarities to this case.2 In that case the applicant sought a reduction of his home detention sentence by 14 days, to enable him to leave New Zealand to attend the wedding of his niece in Thailand. White J held that there  was  no  relevant  change  in  circumstances.  Rather,  “all  the  applicant is seeking is the Court’s indulgence to travel to Thailand for a family wedding which, if permitted, would effectively result in a variation of the sentence imposed by Stevens J.” Such comments are equally apt here.

2      Homburg v R HC Auckland CRI-2007-092-006572, 22 April 2009.

[12]   Further, the argument that allowing Ms Xu to attend her uncle’s funeral in China would advance her rehabilitation and reintegration, because attending the funeral would help her to maintain and strengthen her family relationships is extremely strained, to say the least. I do not accept that allowing Ms Xu to attend her uncle’s funeral would serve any material rehabilitative purpose.

[13]The application is dismissed.

Katz J