Zhao v Police - [2014] NZHC 3121

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2014-404-000301 [2014] NZHC 3121

BETWEEN
WENXIN ZHAO

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 24 November 2014

Appearances:

C Wilkinson-Smith for Appellant
L M Mills for Respondent

Judgment:

8 December 2014

(RESERVED) JUDGMENT OF ANDREWS J

[Appeal against refusal to order discharge without conviction]

This judgment is delivered by me on 8 December 2014 at 5 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

ZHAO v NEW ZEALAND POLICE [2014] NZHC 3121 [8 December 2014]

Introduction

[1] Following a plea of guilty on one charge of assault and one of wilful damage the appellant, Ms Zhao, applied to be discharged without conviction. This application was declined in a ruling given by Judge Winter in the District Court at Manukau on 29 July 2014.1 Ms Zhao was subsequently sentenced to six months’ supervision and ordered to pay reparation of $400.2

[2] Ms Zhao now appeals against the Judge’s refusal to discharge her without conviction, on the basis that the conviction will result in her deportation, making the direct and indirect consequences of conviction out of all proportion to the gravity of her offending.

Relevant facts

[3] Ms Zhao and her husband have been together for seven years. They were married in New Zealand in 2010. In about 2011, Ms Zhao began a relationship with another man, the victim. That relationship lasted for some three years. Upon learning that the victim had been sleeping with another woman, Ms Zhao arranged to meet with the victim at her home address, to discuss their relationship. Ms Zhao had with her a can of paint and a 30 centimetre long metal pole. When the victim arrived, Ms Zhao threw paint on and into his car, and hit the windscreen three times with the metal pole, causing it to crack. This is the basis of the charge of wilful damage.

[4] Ms Zhao then leaned into the car and slapped the victim about his upper body. When he attempted to push her back, she bit his arm, leaving a mark. The victim then exited the car and fled with Ms Zhao in pursuit. Upon catching the victim, Ms Zhao grabbed his shirt and repeatedly kicked him in the groin. She only stopped when members of the public intervened. This was the basis of the charge of
assault.

1 NZ Police v Wenxin Zhao DC Manukau CRI-2014-092-2886, 29 July 2014.
2 NZ Police v Wenxin Zhao DC Manukay CRI-2014-092-2886, 28 August 2014.

District Court decision

[5] In the District Court, Judge Winter explicitly rejected the submission by counsel for Ms Zhao that the offending was minor, saying that the actual violence, the extent of the damage, and her persistence had increased the seriousness of the offending. The fact that Ms Zhao was prepared with a metal pole to damage the car was also a factor indicating the seriousness of the attack.

[6] Against this conclusion, the Judge considered the consequences…

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 Zhao v Police

Details

AGLC: Zhao v Police [2014] NZHC 3121
Case: [2014] NZHC 3121
Decision Date: 8 December 2014

CaseChat Overview and Summary

The appeal in the case of Wenxin Zhao versus New Zealand Police revolves around the refusal by the District Court to discharge Ms Zhao without conviction, following her guilty plea on charges of assault and wilful damage. Ms Zhao argued that a conviction would result in her deportation, making the consequences of conviction disproportionate to the gravity of her offending. The District Court had rejected the argument, and Ms Zhao sought to overturn that decision in the High Court.

The primary legal issue was whether the direct and indirect consequences of Ms Zhao's conviction were out of all proportion to the gravity of her offending, thus warranting a discharge without conviction. The court had to determine the seriousness of the offending, considering both aggravating and mitigating factors, and assess if the consequences of conviction, particularly deportation, were disproportionate to the offence's gravity.

In his judgment, Andrews J upheld the District Court's decision. The court concluded that Ms Zhao's offending was moderately serious, involving a premeditated, persistent, and violent attack. Although the appellant's remorse and her offer of reparation were mitigating factors, they did not sufficiently reduce the seriousness of the attack. Regarding the consequences of conviction, the court found that while deportation was a severe outcome, it was not for the court to pre-empt the decisions of the immigration authorities. Ms Zhao had the right to appeal against deportation on humanitarian grounds, and the Minister of Immigration also had the discretion to cancel or suspend her deportation. Therefore, the court dismissed the appeal, affirming the original decision.

Orders