Yicheng v Police
[2023] NZHC 816
•18 April 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2022-404-000476
[2023] NZHC 816
BETWEEN LI YICHENG
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 3 April 2023 Appearances:
T A Simmonds for Appellant B Archibald for Respondent
Judgment:
18 April 2023
JUDGMENT OF ANDREW J
This judgment was delivered by Justice Andrew on 18 April 2023 at 4.00 pm
pursuant to r 11.5 of the High Court Rules Registrar / Deputy Registrar
Date …………………….
LI v NEW ZEALAND POLICE [2023] NZHC 816 [18 April 2023]
Introduction
[1] Mr Li Yicheng pleaded guilty to two charges of robbery1 and one charge of attempted robbery.2 In the Auckland District Court, Judge de Ridder declined his application for discharge without conviction. Mr Li was convicted and sentenced to 200 hours’ community work and 12 months’ supervision.3
[2] Mr Li now appeals against the Judge’s refusal to discharge him without conviction. He contends that the Judge overstated the overall gravity of the offending and understated the likely consequences of a conviction, namely the immigration consequences. He says that the Judge was plainly wrong to conclude that the likely consequences of conviction were not out of all proportion to the gravity of the offending.
[3] In opposing the appeal, the Police say there was no error in the Judge’s approach.
The offending
[4] Mr Li’s offending relates to three instances of a similar nature where he robbed, or attempted to rob, young women of their shoes. On 4 September 2020, Mr Li followed the first complainant into her apartment building in Auckland Central. He was wearing a scarf to hide his face. He followed her into the elevator, and when asked what level he was going to, he replied “the same as you”. Mr Li proceeded to tell the complainant “I like your feet; I really like your feet”, before dropping to his knees and wrapping his arms around her knees. Mr Li grabbed the complainant’s left shoe and started to take it off. The complainant struggled to get free from Mr Li’s hold and he managed to remove her right shoe. When the elevator returned to ground level, Mr Li exited the elevator and left the building with both of the complainant’s shoes.
[5] The second incident occurred nine months later on 2 June 2021. Mr Li was following the second complainant from a distance as she was walking home in the early evening in central Auckland. When the complainant entered her apartment building, Mr Li “tailgated” her into the building with his hood up and a medical mask
1 Crimes Act 1961, s 234, maximum penalty 10 years imprisonment.
2 Crimes Act 1961, ss 234 and 72, maximum penalty five years imprisonment.
3 Police v Li Yicheng [2022] NZDC 22962.
on. He followed her up the elevator and got off on the same level as her. He then violently tackled the complainant to the ground and ripped off one of her shoes. Mr Li tried to flee but was confronted by other residents of the building who were alerted by the complainant’s screaming. Mr Li returned the second complainant’s shoes before leaving the building.
[6] The final incident occurred just 10 minutes after the second incident. Mr Li similarly tailgated the third complainant into her apartment building in central Auckland. Once inside, he removed his glasses and put on a medical mask. Mr Li followed the complainant into the stairwell, grabbed her arm and pulled her towards him. The complainant tried to protect herself by crouching down and holding on to a nearby door handle. However, Mr Li eventually managed to pull her to the ground. He grabbed and started to pull on her left ankle. Despite the complainant kicking her legs in an attempt to get free, Mr Li managed to remove her left shoe and ran from the area.
[7] What emerges from the additional material before the Court is that Mr Li’s offending stems from a shoe fetish which he says he developed when he was around 10 years old. Mr Li attacked these women with the intention of stealing their shoes.
Legal principles
Discharge without conviction
[8] If a person pleads guilty to an offence, the court may, instead of imposing a sentence, direct that the offender be discharged without conviction.4 The Court must not discharge an offender without conviction unless it is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.5
[9] In Z (CA447/12) v R, the Court of Appeal set out a three-stage test to be applied by the Court when considering applications for a discharge without conviction.6 Firstly, when considering the gravity of the offence, the Court should consider all
4 Sentencing Act 2002, s 106.
5 Sentencing Act 2002, s 107.
6 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [27].
aggravating and mitigating factors relating to the offence and the offender. The Court should then consider the direct and indirect consequences of conviction and consider whether those consequences are out of all proportion to the gravity of the offence. Finally, if the Court determines that they are out of all proportion, it must still consider whether it should exercise its residual discretion to grant a discharge, noting that it will be rare for the Court to refuse a discharge in such circumstances.
Appeal
[10] An appeal against a refusal to discharge without conviction is an appeal against both a conviction and a sentence.7
[11] To the extent that the appeal relates to the court’s weighing of consequences of conviction against gravity of offending, it proceeds by way of rehearing. The appellate court makes its own assessment of whether the criteria for discharge without conviction are met.8 Unless satisfied that a miscarriage of justice has occurred, this Court must dismiss Mr Li’s appeal.9 In the context of a discharge without conviction, a miscarriage of justice means a material error or that the Judge erred in applying the principles for discharging an offender without conviction.10
District Court decision
[12] Judge de Ridder began the assessment of the gravity of Mr Li’s offending with the features of the offending itself. His Honour described it as “repeated deliberate offending”.11 The Judge held that the submission from Mr Li that he “approached” the complainants of his offending significantly downplayed what he did; he effectively stalked vulnerable young women or laid in wait for them. His Honour also referred to the use of disguises to hide his identity and the significant force used to get the shoes off the women. In Judge de Ridder’s view, Mr Li used continued and sustained violence to achieve his purpose in respect of two of the women; he violently tackled
7 Jackson v R [2016] NZCA 627; Ovtcharenko v Police [2017] NZCA 65 at [5].
8 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141; R v Hughes
[2008] NZCA 546, [2009] 3 NZLR 222 at [11].
9 Criminal Procedure Act 2011, s 232.
10 Jackson v R, above n 7, at [12].
11 Police v Li Yicheng, above n 3, at [13].
one and pulled the other to the ground. He therefore categorised the offending as “very serious”.12
[13] In considering the personal factors of Mr Li, Judge de Ridder noted that he had no prior convictions, had pleaded guilty at an early opportunity and had paid reparation of $3,000 to two of the complainants. He intended to do the same for the third. Mr Li had also written apology letters, engaged in voluntary work and sought counselling. The psychiatric report had assessed him as being unlikely to commit further offending. As a result of these positive factors, Judge de Ridder reduced the overall gravity of the offence to be “moderately very serious”.13
[14] The Judge then turned to the consequences of conviction, in particular potential employment, the stigma of a conviction and immigration difficulties. Judge de Ridder considered Mr Li’s future employment concerns to be a generic expression of concern.14 Despite noting that the profession associated with the degree Mr Li is presently studying for is controlled by a professional body, Judge de Ridder considered that it is for that body to determine the consequences of conviction and there was no further information about difficulties Mr Li may face. The Judge also considered that the asserted stigma was no more than the ordinary consequences of conviction.15
[15] Judge de Ridder considered the key issue to be Mr Li’s immigration status. At the time of sentencing Mr Li was on an interim extension of his student visa, the original having expired in March 2022. The Judge noted that such an extension required meeting a good character test and would not normally be granted to the applicant if convicted of an offence with a maximum sentence of three months’ imprisonment or more.16 Mr Li advised the Court that the immigration authorities already had concerns about his character, which the Judge assumed was the result of this offending.17 Judge de Ridder therefore accepted that Mr Li might face difficulties in getting an extension of his student visa.18
12 Police v Li Yicheng, above n 3, at [14].
13 Police v Li Yicheng, above n 3, at [15].
14 Police v Li Yicheng, above n 3, at [16].
15 Police v Li Yicheng, above n 3, at [18].
16 Police v Li Yicheng, above n 3, at [20].
17 Police v Li Yicheng, above n 3, at [19].
18 Police v Li Yicheng, above n 3, at [21].
[16] Judge de Ridder considered the view of Mr Lal (an immigration expert) that Mr Li would be unlikely to get a character waiver or his visa renewed. However, he noted that there was no other information provided to support those claims.19 Ultimately, after referring to two recent Court of Appeal cases that deal with immigration consequences in this context,20 Judge de Ridder considered that any action by the immigration authorities would result from the offending itself and not from a conviction.21 This was particularly so where the immigration service was already aware of Mr Li’s offending and had already raised character concerns based on that.
[17] Judge de Ridder concluded that given the serious nature of the offending he was not satisfied that a conviction was out of all proportion to the gravity of the offence. Therefore, the application for a discharge without conviction was dismissed.22
Analysis and decision
Issue (a) – The offending itself
[18] Mr Simmonds, on behalf of Mr Li, submits that the Judge erred in assessing the offending itself as “very serious”. He also challenges the Judge’s determination that the overall gravity of the offending was “moderately very serious” once all personal mitigating factors were taken into account. While it was acknowledged that the offending was not trivial and that harm was caused to the complainants, Mr Simmonds submits that the context of the offending is most important. He contends that the offending was not motivated by a desire to sexually or physically assault the victims, but rather by a most unfortunate fetish for women’s shoes. Mr Simmonds submits that the appellant’s interactions with the three victims focused on his efforts to secure their shoes.
[19] On this basis, Mr Simmonds submits that Judge de Ridder erred in assessing the offending on its own as being very serious for the following reasons:
19 Police v Li Yicheng, above n 3, at [28].
20 Sok v R [2021] NZCA 252; Zhu v R [2021] NZCA 254.
21 Police v Li Yicheng, above n 3, at [29].
22 Police v Li Yicheng, above n 3, at [30].
(a)There was no evidential basis for concluding that the appellant “effectively stalked” or laid in wait for the victims;
(b)The Judge was wrong to reject the appellant’s categorisation of the offending as being opportunistic rather than carefully planned, and in concluding that Mr Li had significantly downplayed his actions;
(c)The Judge was wrong to describe the appellant as having “used disguises” in circumstances where he wore a medical mask during two of the incidents and a scarf for the other;
(d)The Judge was wrong to categorise the offending as involving significant and serious violence against the three victims.
[20] The starting point in assessing the gravity of Mr Li’s offending is the features of the particular offending.23 As the Court of Appeal held in J v R,24 an assessment of gravity is informed by the culpable conduct, to be determined on an assessment of the facts, rather than the nature of the charge.
[21] As noted, Mr Li faced three charges. The maximum penalty upon conviction for robbery is a term of ten years imprisonment.25 On the attempted robbery charge, the maximum sentence is five years imprisonment. The charge of robbery imports an element of violence. Robbery is defined as “theft accompanied by violence or threats of violence”.26 Mr Li pleaded guilty to the three charges and accepted the summary of facts. That summary records Mr Li wrapping his arms around the first complainant’s legs and “violently” tackling the second complainant to the ground. In respect of the third complainant, Mr Li kept pulling her, by grabbing her arm, until she fell to the ground. These facts establish serious offending.
[22] It may be that Mr Li’s offending was motivated by his shoe fetish rather than any desire to physically or sexually assault the victims. I agree with the submission of Mr Simmonds that this is a relevant factor. However, it should not be overstated. Regardless of his motivations, Mr Li assaulted each victim. Importantly, the victims
23 See Taylor v R [2018] NZHC 688 at [46]; Babich v R [2018] NZHC 2324 at [7].
24 J v R [2021] NZCA 690 at [36].
25 Crimes Act 1961, s 234(2).
26 Crimes Act 1961, s 234(1).
were not to know that he was motivated solely by a desire to take their shoes. They would likely have apprehended far worse consequences. Their victim impact statements refer to the emotional and psychological harm done to them and it is clear that they feel strongly about the outcome of these proceedings. It is clear that Mr Li targeted vulnerable young women on their own in the evening and used force to steal their shoes. Those aggravating factors are not in dispute.
[23] I reject the submission that Mr Li did not stalk the complainants or lay in wait for them. On all three occasions Mr Li followed the complainants into their apartment buildings and then into either the elevator or stairwell. Mr Li was waiting outside the first complainant’s apartment building prior to the first incident. In regard to the second incident, as made clear from the agreed summary of facts, Mr Li followed the complainant from a distance away down the street before tailgating her into her apartment building. The complainant had to use a key card to enter the building. Mr Li similarly tailgated the third complainant into her apartment building. At Mr Li’s restorative justice conference, he admitted to following the three complaints.27 This is undoubtedly, as identified by Judge de Ridder, an aggravating feature of the offending.
[24] These facts also denote a degree of premeditation. I note that in the restorative justice conference report Mr Li admitted that prior to the offending porn no longer satisfied his sexual desire and something more “exciting” was needed. He sought out young, female victims. The fact that there are three almost identical incidents confirms that the offending was not simply “opportunistic”. At least some degree of planning was involved. Premeditation is a further aggravating factor.
[25] I also reject the submission that Judge de Ridder erred in concluding that Mr Li had significantly downplayed his actions. His Honour was simply commenting, as he was entitled to do, on the submission made on Mr Li’s behalf that he simply “approached” the complainants. His actions were far more serious than that.
[26] I also find that Judge de Ridder did not err in concluding that the appellant used disguises. As set out in the Police summary of facts, the scarf was clearly used during the first incident to hide Mr Li’s face. In the second incident, Mr Li pulled his hood
27 This is clear from the Restorative Justice Conference Report dated 29 May 2022.
up and was wearing a medical mask. In the third incident, he removed his glasses and put on a medical mask. I accept that the offending all took place during the COVID- 19 lockdown and masks were, of course, commonplace. However, it is reasonable to infer here that all these items were used with the intent of concealing Mr Li’s identity. These can also be counted as further aggravating factors.
[27] I find that Judge de Ridder did correctly identify the relevant factors in his initial assessment of the gravity of the offending. There is, however, real force in Mr Simmonds’ submission that viewed in context and having regard to the fact that none of the victims were physically injured, it is an overstatement to describe the features of the offending itself as “very serious”. I acknowledge and agree with the learned Judge that this was repeated, deliberate offending, and that violence was involved. However, the offending was not at the most severe end of the spectrum. In my view, this was serious offending of its kind, but not “very serious”. In concluding that it was very serious, the Judge was in error.
Issue (b) – Overall gravity assessment
[28] There are undoubtedly multiple mitigating factors arising from Mr Li’s personal circumstances that reduce the overall gravity of the offending. These are not in dispute; I agree with Mr Simmonds that they are compelling. Mr Li has a record of good character and no previous convictions, has offered apologies and reparation to the complaints and is seeking counselling to address the underlying issues associated with his offending. He is also young, and the offending was committed in the context of the 2020 and 2021 Covid-19 lockdowns when Mr Li was isolated from family and suffering from depression. The psychiatric report prepared has assessed him as being unlikely to commit further offending.
[29] In assessing all of these factors, I conclude the overall gravity of the offence should be assessed as moderately serious. The Judge therefore did err in overstating the gravity of the offending by reaching the conclusion that it was “moderately very serious”. The penalty imposed by the Judge is consistent with my determination.28 However, whether there was ultimately a material error is an issue I now address.
28 See [1] above where I note that Mr Li was convicted and sentenced to 200 hours’ community work and 12 months’ supervision.
Consequences of conviction
[30] The second stage of the test requires the Court to assess the direct and indirect consequences of a conviction.29 Here, the particular consequences relied upon are the immigration consequences that are likely to result. Mr Simmonds submits that Judge de Ridder did not have proper regard to these consequences, and in particular failed to consider Mr Li’s ability to obtain a work visa (as opposed to a student visa). He further submits that Judge de Ridder was incorrect to conclude that any immigration consequences would result from Mr Li’s offending as opposed to convictions being entered.
Additional evidence
[31] In support of these submissions, Mr Simmonds seeks to adduce additional evidence in the form of an affidavit from Mr Simon Laurent, an immigration law specialist. This is for the purpose of amplifying the evidence that was before the District Court as to the likely immigration consequences that will result from Mr Li receiving convictions.
[32] The general test for when fresh evidence can be adduced on appeal is as set out in R v Bain. Evidence must be sufficiently fresh and credible, and it must be in the interests of justice to admit the evidence.30 Ordinarily evidence which could, with reasonable diligence, have been called at the trial, or in this case at the sentencing, will not qualify as sufficiently fresh.31 In Lundy v R, the Privy Council reinforced that the overriding test in appeals is that “new evidence should be admitted if the interests of justice require it.”32
[33] In the present case, I consider that the affidavit should be admitted as evidence. Despite the fact that the evidence could conceivably have been prepared prior to the sentencing hearing, the evidence is clearly relevant to a live issue in this appeal. It seeks to expand on the evidence that was before Judge de Ridder. This is particularly relevant given his Honour’s comments that the expert immigration evidence before
29 Z CA447/12) v R, above n 6, at [27].
30 R v Bain [2004] 1 NZLR 638 (CA) at [22], approved in R v Bain [2007] UKPC 33, (2007) 23 CRNZ 71.
31 R v Bain, above n 30, at [22].
32 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [119].
him was not supported by any additional information.33 I consider that it is in the overall interests of justice to admit the additional affidavit as evidence. I note that the respondent is not opposed to the introduction of this material.
[34] I note also that Mr Li’s immigration status has changed since he appeared in the District Court. At that time the focus of his submissions was the immigration consequences on his ability to renew his student visa. However, since then, Mr Li’s student visa has been renewed to enable him to complete his university degree. In those circumstances, the argument now being made is the potential impact of a conviction on the ability of Mr Li to obtain a post-study work visa. Mr Laurent’s evidence expressly addresses that issue and I find it is of “substantial help” in determining these proceedings.34
Immigration consequences
[35] The Court of Appeal in Sok v R provided guidance on how immigration consequences should be considered in the context of an application for discharge without conviction:35
[45] The Sentencing Act does not treat immigration consequences differently from others, but it is necessary to recognise that those consequences are found in, or authorised by, immigration legislation. As this Court said in Ho, Parliament has decided a foreign national enjoys no general right to stay in New Zealand. The legislation authorises the Minister to impose character requirements on those seeking visas to live in New Zealand, and it contemplates that the commission of a qualifying offence may lead to deportation. It establishes or authorises institutions and processes to assess the circumstances and decide what is to be done in any given case. Those processes are intended to accommodate New Zealand’s international obligations. In this setting, close attention must sometimes be given to causation.
…
[47] It is usually the case that immigration processes must be commenced, and adverse decisions made by immigration authorities, before a person who has committed an offence is compelled to leave the country. A court may accept that during a given process the person will be heard on mitigating and personal circumstances and the outcome will be determined by those circumstances rather than the fact of conviction. The offending is a fact that has been admitted or proved and the Court’s view of its gravity will be a matter
33 Police v Li Yicheng, above n 3, at [28].
34 Evidence Act 2006, s 25(1).
35 Sok v R, above n 20 (footnotes omitted).
of record. In such cases courts usually find the outcome a consequence of the offending behaviour rather than the conviction.
[36]The Court of Appeal went on to say in Zhu v R:36
The Court has recently considered the question of causation in Sok v R, concluding that a conviction may be an indirect cause of a consequence that will happen only in the event that a third party, such as an immigration officer, makes a decision in which the conviction is relevant. Such a causal connection may suffice under s 107 of the Sentencing Act. However, it is not always enough to show that but for conviction a given consequence would not happen. Causation is a question of substance and degree, requiring judicial judgement. Where satisfied that immigration decision-makers will consider the circumstances that are said to justify a discharge, including the gravity of the offending and the offender’s personal circumstances, courts usually reason that the outcome is a consequence of the offending, rather than the conviction.
[37] I will address only the issue of the impact of a conviction on the ability of Mr Li to obtain a post-study work visa. The impact on any ability to renew his student visa is no longer a live issue.
[38] I accept that the entry of convictions may well have a detrimental effect on Mr Li’s ability to obtain a post-study work visa. I also accept that if he is declined such a visa, then any deportation consequences will likely be significant. It is clear from the evidence of Mr Laurent that the existence of a conviction will determine what process Immigration New Zealand 37will follow in relation to an application for a post- study work visa. If someone is discharged without conviction, no character waiver process can be applied at all. However, the test to apply is whether those consequences will be “out of all proportion” to the gravity of the offending, which I have identified as moderately serious.
[39] I find that the consequences of a conviction in this case, albeit significant, would not be out of all proportion to the gravity of the offending. That is so for the following reasons:
(a)As a student visa holder, Mr Li is presently liable for deportation under s 157 of the Immigration Act 2009 regardless of whether he is convicted. Having said that, and as testified by Mr Laurent, it seems
36 Zhu v R, above n 20, at [25] (footnotes omitted).
37 INZ.
unlikely that Mr Li would be served with a deportation liability notice before the expiry of his student visa in March 2024.38
(b)While I accept Mr Laurent’s evidence that if Mr Li is convicted his chances of securing a character waiver for the grant of a post-study work visa may be low, these matters are ultimately for INz to determine and in this case there are some compelling circumstances which might justify a different approach.39 Ultimately, of course, INZ must still exercise its discretion and cannot automatically decline an application for a character waiver.
(c)In any event, Mr Li is a foreign national and enjoys no general right to stay in New Zealand.40 In contrast to other cases where immigration consequences have been held to be out of all proportion to the gravity of the offending, Mr Li does not have a close connection with New Zealand, has no family here and has only been in New Zealand for four years.41
(d)As acknowledged above, any deportation consequences will be significant. I also accept that Mr Li now has tenuous links with China and Malaysia and that his four years in New Zealand is not an insignificant period of time, given his age. However, all these factors and the potential impact of the Malaysia My Second Home
38 Furthermore, as recently recognised in Truong v R [2023] NZCA 97, the issue of a deportation liability notice is not automatic, where an individual has the opportunity to make submissions to the Minister on whether deportation should proceed before a deportation liability notice is served. The Court of Appeal considered this fact to be “significant” at [52], and the appeal was dismissed on the basis that the Minister and Tribunal are better placed than the Court to assess an individual's grounds for not being deported.
39 I note that Mr Li is a full-time undergraduate student majoring in accountancy at Auckland University. He has an impressive academic record. He has clearly taken significant steps to try and address his offending and the reasons for it.
40 Sok v R, above n 20, at [45].
41 See, for example, Yu v Police [2021] NZHC 3000, a case where the appellant was convicted of a charge of driving with excess breath alcohol. The appellant had lived her entire adult life in New Zealand, had a stable relationship with a permanent resident and her daughter was born in New Zealand. Deportation was an inevitable consequence of conviction and was therefore out of all proportion to the gravity of the offence. See also Bong v R [2020] NZCA 94, where the appellant was found guilty of a charge of male assaults female. He was a Korean national who had lived in New Zealand for eight years and had a wife and three children in New Zealand. His offending was assessed as “very low level”.
programme42 (if at all relevant) can be addressed by the relevant immigration authorities as part of their overall assessment of Mr Li’s future immigration status. The institutions and processes under the Immigration Act 2009 do, of course, contain mechanisms for addressing New Zealand’s international legal obligations, including human rights commitments.43
Conclusion and result
[40] I find that the District Court Judge erred in his assessment of the overall gravity of the offending. I find that it should be characterised as “moderately serious” rather than “moderately very serious”. However, there was no error in the ultimate conclusion reached by the Judge that the consequences of the convictions, namely the immigration consequences, are not out of all proportion to the gravity of the offending. In my reassessment, having regard to the further evidence before the Court, I reach the same ultimate conclusion.
[41]Accordingly, the appeal is dismissed.
Andrew J
42 Addressed by Mr Laurent in his affidavit of 20 March 2023.
43 Sok v R, above n 20, at [45].
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