Xue v Police

[2015] NZHC 1285

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000069 [2015] NZHC 1285

BETWEEN

LIQIAN XUE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	4 May 2015
Appearances:	G D Packer for Appellant J Murdoch and T J McGuigan for Respondent
Judgment:	9 June 2015

JUDGMENT OF COURTNEY J

XUE v NZ POLICE [2015] NZHC 1285 [9 June 2015]

[1]      Liqian Xue pleaded guilty in the Auckland District Court to one charge of theft (over $1,000).1     Judge B A Gibson refused his application to be discharged without conviction.  He convicted Mr Xue and ordered him to come up for sentence if called upon within 12 months.   Mr Xue appeals the Judge’s refusal to grant a discharge without conviction.

[2]      The circumstances of the offending were as follows.  On the night of 20 June

2012  Mr  Xue  was  at  the  Sky  City  Casino  in  Auckland.    He  found  a  wallet containing, among other things, $1,150 in cash.  Rather than handing the wallet to Sky City management or making any attempt to locate the owner he took the wallet and left.  The charging document was originally laid on 5 July 2012 and Mr Xue entered a not guilty plea on 6 August 2012.  However, he then failed to appear until

2014, entering a guilty plea on 6 November 2014.

[3]      Under s 106 the Court may discharge an offender without conviction, subject to s 107 which precludes that course of action 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.   The inquiry the Judge must make under s 107 requires consideration of, first, the gravity of the offending, secondly, the direct and indirect consequences of a conviction on the offender and, thirdly, whether the consequences of a conviction will be out of all proportion to the offending.  Mr Xue’s grounds of appeal are that the Judge:

(a)       wrongly assessed the gravity of the offending as more serious than it was as result of not taking the relevant factors into account;

(b)failed to accurately assess the proportionality of the consequences of conviction against the gravity of the offending.

Sentencing in the District Court

[4]      In recording the facts of the offending the Judge misstated the amount of cash as being $1,500 instead of the correct amount of $1,150.  He noted that Mr Xue had

1      Crimes Act 1961, ss 219 and 223(b).

provided  a  cheque  for  the  full  amount  of the cash  taken.    He  also  referred  to Mr Xue’s failure to appear following the entry of a guilty plea in November 2014, necessitating a warrant to be issued for his arrest. Against this background he said:

[6]       Consequently any credit for a guilty plea has to be tempered by that history, that history is of course one of the relevant matters I can take into account on the authority of Z v R when I turn to consider the gravity of the offending.  In terms of the gravity of the offending, I accept the charge was relatively  serious.    But,  as  against  that,  it  was  clearly  an  opportunistic offence.      The   defendant   was,   I   am   told,   in   somewhat   straitened circumstances at the time.  If that was so, one would not expect to find him in a casino.  But overall, in terms of gravity it is my view, at the lower to middle end of offending.

[5]      On the issue of the consequences to Mr Xue of a conviction the Judge said:

[8]       The defendant’s primary concern is that if a conviction is entered it may jeopardise his prospect of obtaining a visa, or if he has to leave New Zealand, of being able to gain another visa to work here.  They are, in my view, legitimate fears but he was a visitor to New Zealand and those consequences simply follow from the offending.

[6]      After  referring  to  Asher  J’s  decision  of  Zhang  v  Ministry  of  Economic

Development2 the Judge concluded that:

[10]      In my view that is the proper approach.   The relative seriousness of the  offence  can  be  dealt  with  at  sentencing  and  that  may  be  of  some assistance to the immigration authorities in determining not only his present status but any future status in the event that he wishes to return to New Zealand.

[11]     In  assessing  his  sentence  I  have  to  take  into  account  and  to acknowledge his lack of previous convictions, the fact that he has now made full reparation and I accept the submission made on his behalf that he may well have learned a lesson from this offending.

[12]      It was opportunistic.  It is not appropriate to discharge the defendant without conviction because in my view the consequences of the offending are not out of all proportion to the gravity of the offence, which is the test.

The appeal

Gravity of the offending

[7]      Ms Packer, for Mr Xue, submitted that there were a number of factors that the

Judge failed either to take into account or to accord adequate weight to in assessing

2      Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453.

the gravity of the offending.  The first was that the offending was such that, at the initial stages, Mr Xue was referred for consideration under the police diversion scheme.  For reasons that do not appear from the material before me diversion was declined.  However, I accept Ms Packer’s submission that this is an indication of the seriousness of the offending.  I would add to that the fact that, at $1,150, the amount involved was at the very lowest end in terms of the offence.  It is possible that the Judge’s misapprehension as to the amount of cash involved may have caused him to regard the offending as slightly more serious than it was.

[8]      Ms Packer submitted, further, although the Judge placed weight on Mr Zue’s failure to appear at subsequent court dates, he did take into account the reason for that.  In his affidavit Mr Xue’s affidavit described being under a lot of personal and financial stress at the time of the offending because he was unemployed and his visa was about to expire.  He had difficulty speaking English and did not know what to do.   Interestingly, Mr Xue asserts in his affidavit filed for the appeal (which was unchallenged) that he had paid $1,150 to his lawyer in 2012; it seems that this could not be paid as reparation immediately because Mr Xue failed to appear and did not enter a guilty plea until 2014.

[9]      I  agree  that  the  Judge’s  description  of  Mr  Xue  as  being  “in  somewhat straitened circumstances at the time” rather understates the position and does not adequately address Mr Xue’s plight and obvious remorse evidenced by the fact that he provided the money to repay the victim at a very early stage.  The Judge was, of course, entitled to factor in Mr Xue’s failure to appear and that was a serious matter. Overall, however, the offending must be regarded as being at a very low level and I consider that the Judge did treat it as too serious.

Consequences

[10]     Although Ms Packer submitted that a conviction would have consequences for Mr Xue’s employment prospects and that the Judge failed to take that fact into account, there was no evidence from Mr Xue himself that the consequences would be out of the ordinary.  A dishonesty conviction usually does carry consequences for

employment but there is nothing to suggest that the usual consequences would be particularly significant for Mr Xue, who has trained in New Zealand as a chef.

[11]     Mr  Xue’s  primary  focus  in  the  District  Court  was  the  impact  on  his immigration status.   The evidence regarding Mr Xue’s status was limited.  At the time of sentencing his work visa had expired and he was intending to apply to the Immigration Department to regularise his status.  Ms Packer advised that Mr Xue is intending to apply for a visa under s 61 of the Immigration Act 2009 which relates to persons unlawfully in New Zealand but in respect of whom there is no deportation order in force.

[12]     The grant of a visa under s 61 is a matter of absolute discretion.   It is a reasonable inference that a criminal conviction will be relevant to the exercise of that discretion.   However, Mr Xue will also need to account for the two years he was unlawfully living in New Zealand following being charged with the current offence. This is likely to cause more difficulty than the conviction itself and it is difficult to see how Mr Xue will account for that time without reference to this offence.  Further, it seems likely from the information provided by Ms Packer that Immigration New Zealand will already be aware of Mr Xue’s contact with the police over this matter.

[13]     In  these  circumstances  I  am  not  satisfied  that  the  consequences  of  the conviction do outweigh the gravity of the offending.

[14]     The appeal is dismissed.

P Courtney J