Yuan v Police

[2020] NZHC 933

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2020-425-4

[2020] NZHC 933

BETWEEN

XINGKE YUAN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

4 May 2020

(by way of Virtual Meeting Room)

Appearances:

T Surrey for Appellant

R Donnelly for Respondent

Judgment:

7 May 2020

JUDGMENT OF MANDER J

This judgment was delivered by me on 7 May 2020 at 3 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:     .

YUAN v NEW ZEALAND POLICE [2020] NZHC 933 [7 May 2020]

[1]    Mr Yuan appeals his conviction and sentence on a charge of driving with excess blood alcohol.1 He pleaded guilty and applied to be discharged without conviction. Judge Walker declined Mr Yuan’s application, and he was fined $1,000 and disqualified from driving for eight months. Mr Yuan appeals Judge Walker’s decision.

[2]    Mr Yuan sought leave to file an updating affidavit for the purposes of his appeal. The Crown did not oppose the admission of that evidence and I am satisfied it meets the requisite test of being credible, fresh and relevant for it to be admitted.2

Background

[3]    At 2 am on 20 June 2019, Mr Yuan was apprehended by police driving in Queenstown with no headlights on. He had two passengers in his vehicle when he was stopped. The attending officers noticed that Mr Yuan was affected by alcohol, and a passive breath test gave a positive result of alcohol.

[4]    There were difficulties with completing a roadside breath screening test, and Mr Yuan was required to accompany police to the police station. An evidential breath test gave an incomplete result. As a result, a blood sample was taken. On analysis this showed a concentration of 181 mg of alcohol per 100 ml of blood, which is some four times the legal limit.

[5]    Mr Yuan is a 24 year old Chinese national (he was 23 years of age at the time of the offending). He was in New Zealand studying English pursuant to a student visa.

District Court ruling

[6]    In addressing Mr Yuan’s application for discharge, Judge Walker firstly considered the seriousness of the offending. He noted that required him to assess the mitigating and aggravating features, both of the offence itself and those personal to Mr Yuan. The aggravating features were identified as being the very high alcohol

1      Land Transport Act 1998, s 56(2). Maximum penalty three months’ imprisonment and a fine not exceeding $4,500.

2      Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].

level, the presence of passengers, the fact that Mr Yuan was driving without his headlights on, and that because of his blood alcohol level Mr Yuan must have known he was intoxicated and should not have been driving.

[7]    Mitigating factors were identified as the guilty plea, although it was noted this was only entered on the day of Mr Yuan’s trial, his age, and absence of previous convictions. It was noted that Mr Yuan had expressed considerable remorse and was otherwise of good character. He had sold his vehicle and instructed his lawyer that he had not driven since the incident.

[8]    On balance, Judge Walker considered that, because of the extremely high level of alcohol in Mr Yuan’s blood, his offending fell into the moderate to high category of seriousness.

[9]    Turning to the consequences of a conviction, the Judge noted possible employment and travel implications. The issue of most concern was the possible impact of a conviction on Mr Yuan’s immigration status. In a letter tendered to the Court, an immigration consultant opined that a conviction may jeopardise Mr Yuan’s chances of obtaining further visas and that a conviction would be taken extremely seriously.

[10]   The Judge observed that the courts had generally taken the view that it was more appropriate for the immigration authorities to determine issues arising from a conviction. Being satisfied that the direct and indirect consequences of a conviction would not be out of all proportion to the gravity of the offending, Judge Walker declined to discharge Mr Yuan without conviction.

The appeal

[11]   Mr Yuan brings his appeal on the basis that the District Court erred in its assessment of the gravity of the offending by giving insufficient weight to the mitigating factors of his youth, guilty plea, lack of previous convictions, and remorse. Further, that the Judge failed to appropriately take into account the immigration consequences arising from a conviction and its impact on him being able to obtain further visas and remain in New Zealand.

[12]   Ms Surrey, who appeared on Mr Yuan’s behalf, submitted that the additional evidence filed in support of the appeal when combined with the earlier material demonstrated that the consequences of a conviction would be out of all proportion to the gravity of the offending, and that Mr Yuan’s time in New Zealand would effectively be brought to an end because of this single incident.

The approach on appeal and the relevant law

[13]   An appeal against a refusal to grant a discharge without conviction is an appeal against conviction and sentence, and proceeds as a general appeal.3 The appellate court is required to consider the merits of the case afresh and need not defer to the view of the court below. However, the appellant bears the onus of identifying error in the lower court’s assessment and persuading the appellate court to depart from its decision.4

[14]   A sentencing court may discharge an offender without conviction following a plea or finding of guilt.5 However, the court must not do so unless satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.6 A three-step approach is required:7

(a)the gravity of the offending is to be identified by taking into account all aggravating and mitigating factors of the offending and the offender;

(b)the direct and indirect consequences for the offender must then be identified; and

(c)a determination made as to whether those consequences are “out of all proportion” to the gravity of the offence.

3      Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [8]–[9] and [16].

4      Jo v Police [2019] NZHC 1369 at [20].

5      Sentencing Act 2002, s 106.

6      Sentencing Act, s 107.

7      Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [27]; and Prasad v R [2018] NZCA

537 at [11].

[15]   When assessing the claimed consequences it is not necessary for the court to be satisfied that such consequences are inevitable, however, there must be a real and appreciable risk that any given consequence will happen.8

Did the District Court Judge err in his assessment of the gravity of the offending?

[16]   Reliance was placed on  further details of  how  the offending came about.  Mr Yuan had been out drinking when attending a social function in central Queenstown to farewell a friend. It was submitted that the influence of alcohol and the pressure of friends had clouded his judgement and he made a foolish decision on the spur of the moment to drive. He was described as being in a state of panic at the time he was stopped. His difficulty with the breath testing procedures were said to have been the result of language difficulties and not understanding the police’s processes.

[17]   However, none of those circumstances have any material bearing on the gravity of the offending, and most are commonplace in offending of this type. They do not alter the seriousness of Mr Yuan’s high blood alcohol reading. The fact that Mr Yuan only drove a short distance before being stopped and that there were no injuries or damage to property simply represent the absence of further aggravating features. Driving offences engage public safety, and when a driver’s alcohol limit is more than minimally above the permissible limit the offender’s conduct must be viewed as dangerous and socially unacceptable.9

[18]   Ms Surrey also referred to personal mitigating factors relating to such things as Mr Yuan’s age, his guilty plea, and otherwise good character, but these were all matters taken into account by the District Court when assessing the circumstances of the offending and the offender and the seriousness of Mr Yuan’s conduct. I do not consider Judge Walker’s categorisation of the offending as being of moderate to high seriousness can be challenged.

8      Singh v Police [2020] NZHC 368 at [29] citing Iosefa v Police HC Christchurch CIV-2005-409- 64, 21 April 2005 at [34]; and Alshamsi v Police HC Auckland CRI-2007-404-62, 15 June 2007 at [20].

9      Dennis v Police [2016] NZHC 1768 at [19]; Franks v Police [2013] NZHC 3556 at [13]; Simmonds v Police [2014] NZHC 2488 at [27]; Linterman v Police [2013] NZHC 891 at [9]; and Aylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1 at [17].

Did the District Court Judge underestimate the consequences of a conviction?

[19]   As noted, in addition to the potential impact on his immigration status and future visa applications, Mr Yuan also sought to rely upon possible employment and travel ramifications.  I do not, however,  consider such  general concerns advance  Mr Yuan’s argument. He is described as ultimately having an ambition to work in a business management role in New Zealand, although, as acknowledged, this would not be for several years. Mr Yuan was only in New Zealand for the purpose of studying English. While a conviction for drink driving may present as an impediment to a person’s general employment prospects, in the absence of an offender being able to identify a particular opportunity or occupation that is being put at risk from a conviction, such a concern will generally not be sufficient.10

[20]   Similarly, a general concern regarding the potential impact of a criminal conviction on travel will have little influence. Mr Yuan does not have any definitive travel plans beyond remaining in New Zealand or travelling to Australia, and no information was provided as to how the entry of a conviction for drink driving may bar him from entering other countries. These possible employment and travel consequences were accurately described by Judge Walker as non-specific and speculative. They are of little weight.

[21]   The most acute potential consequence for Mr Yuan arises from the potential effect of a conviction on his immigration status. In his affidavit before the District Court, Mr Yuan advised that he was currently engaged in a 44-week course, and intended undertaking further study to learn English, before hoping to study business management.

[22]   Mr Yuan made reference to the Immigration New Zealand website that advises that if a person is convicted of an offence carrying a penalty of three months or more imprisonment, he would need a character waiver in order to obtain any further visas to allow him to remain in New Zealand.

10 An example of the former case is Amstad v Police HC Auckland CRI-2011-404-161, 6 September 2011, where the 19 year old appellant had completed a year long course to assist his entry into the Army, and had the support of an Army careers recruiter, would have been barred from joining the military if convicted of unlawfully taking a motor vehicle.

[23]   The immigration consultant confirmed that he would have to meet character requirements for any temporary or residential visa application. It was noted that a conviction would mean that he would highly likely be considered a high risk applicant and that a robust investigation would be carried out in order to evaluate whether he could be considered to be of good character. Mr Yuan would need to provide extensive submissions and evidence to show why a character waiver would be warranted.

[24]   Based on the material before him, I do not consider Judge Walker erred in his identification and assessment of the consequences of a conviction for Mr Yuan. He accurately reviewed the information provided by the immigration consultant, that a conviction would put at risk Mr Yuan’s chances of being able to obtain any further visas, before observing that the prevailing view of the Courts is that it is more appropriate for the relevant authorities to assess and determine the immigration issues arising as a consequence of a conviction.

[25]   While there is no general rule, the courts have been reluctant to pre-empt the decision-making processes of the various immigration bodies and tribunals, lest they usurp the role of those charged with resolving immigration questions arising from the consequences of offending.11 While each case must be assessed on its individual merits, it will be relatively rare for the risk of deportation by itself to be considered as a disproportionate consequence of being convicted for drink driving.

[26]   Ms Surrey sought to rely upon the approach taken by the Court of Appeal, in Rahim v R, that involved a decision to decline an application to discharge a recent immigrant from Pakistan without conviction. However, the key consideration in that case was the real and appreciable risk of the appellant being separated from his wife and child that were residing in New Zealand if required to leave the country as a result of his conviction.12

[27]   Other decisions have also recognised that where deportation of an offender will cause serious harm to a defendant’s family that may justify a discharge without

11     Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011 at [14]; and Ho v R [2016] NZCA 229.

12     Rahim v R [2018] NZCA 182.

conviction.13 However, that is not the situation with Mr Yuan. He has no family nor dependents in this country. He is a single man whose only tie with the country is his presence here to study English in Queenstown.

Are the consequences of a conviction out of all proportion to the gravity of the offending?

[28]   In addressing whether the consequences of a conviction were out of all proportion to the gravity of the offending, the additional evidence that Mr Yuan was permitted to adduce on his appeal must be taken into account.

[29]   After the entry of his conviction, Mr Yuan was contacted by Immigration New Zealand. Mr Yuan was advised that his offending put him in breach of the terms and conditions of his temporary visa and that, under s 157 of the Immigration Act 2009, he could be made liable for deportation because he now has a criminal conviction. Mr Yuan discussed his situation with an immigration officer. It was agreed that if he was willing to make arrangements for a voluntary departure that, because of the development of COVID-19 in China, he could remain in New Zealand to complete his English language course that was scheduled to finish in late May. His visa was due to expire at that time.

[30]   Mr Yuan was informed that after he leaves the country he would be free to apply for another visa should he wish to return, but that he would have to declare his conviction. Subsequently, with the development of COVID-19 in this country, and the restrictions imposed on movement  and association in  response to  the pandemic,  Mr Yuan, as with other temporary visa holders, was granted an extension to remain until 25 September 2020.14 His studies have, however, presently been suspended due to the lockdown.

[31]   Despite having contravened the terms of his existing visa by committing the drink driving offence, as events have turned out, Mr Yuan has retained the opportunity to complete his present course of study and he will be able to remain in the country to

13     See Singh v Police [2019] NZHC 417; Kovalic v Police [2019] NZHC 1214; R v Tang [2019] NZHC 2056; Sunda v Police [2019] NZHC 756; and Chand v Police [2017] NZHC 2188.

14     Immigration Act 2009, s 78.

the end of his student visa which has now been extended. He also has the opportunity to apply for another visa to re-enter the country, albeit only after fulfilling his obligation to voluntarily depart at the end of his present student visa. He will have to declare his conviction at that time.

[32]   While it is now clear that Mr Yuan will have to leave the country, unlike at his sentencing, it is also clear that he will be permitted to remain in the country until the end of his visa and not until 25 September. He was always going to have to leave the country if his application for another visa was unsuccessful, and now at least he has the opportunity to complete his course (should it reopen), which was unknown at the time he made his application for a discharge in the District Court. On balance, his position, while different, is not materially worse than it was when his application was declined. I, like Judge Walker, am not satisfied the statutory threshold has been met to enable the Court to exercise its discretion..

[33]   I do not consider that the Judge erred in either assessing the mitigating factors as they related to the gravity of Mr Yuan’s offending, nor do I consider the Judge wrongly assessed the consequences of a conviction, as they were known at the time, by underestimating their severity. Having factored in the recent developments, detailed in Mr Yuan’s supplementary affidavit, and examined the issue afresh, I do not consider that the circumstances of Mr Yuan’s case give rise to consequences that are out of all proportion to the gravity of his offending.

Result

[34]It follows that the appeal must be dismissed.

Solicitors:

Macalister Todd Phillips, Queenstown for Appellant Crown Solicitor, Invercargill for Respondent