Zhao v Police
[2014] NZHC 3121
•8 December 2014
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 RespondentJudgment:
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 of the offending for Ms Zhao. While accepting that Ms Zhao was embarrassed by the offending, the Judge concluded that this consequence was not unusual, and was not useful to the analysis. On the other hand, his Honour accepted that Ms Zhao’s likely deportation was a serious consequence for her offending. However, his Honour did not consider that this would outweigh the gravity of the offending.
Appeal submissions
[7] For the appellant, Mr Wilkinson-Smith submitted that the Judge had overstated the gravity of Ms Zhao’s offending, and had failed to consider material mitigating factors, being her offer of reparation, her prompt guilty plea, and the fact that she has no previous convictions. He further submitted that the “automatic” deportation of Ms Zhao, and the fact that her husband will also have to leave New Zealand if their marriage is to continue, make conviction out of all proportion with her offending.
[8] Mr Wilkinson-Smith also submitted that the shame and remorse which Ms Zhao feels concerning her offending is a relevant mitigating factor. Combined with the degree to which the assault can be described as provoked, he submitted that the seriousness of the offending is somewhat reduced. Mr Wilkinson-Smith referred to a number of cases where offending that he submitted was more serious still received a discharge without conviction.
[9] For the Police, Mr Mills accepted that if convicted it is likely that Ms Zhao will be deported and will be unable to return to New Zealand for ten years. However, he submitted that the seriousness of Ms Zhao’s offending, being
premeditated, persistent, and deliberately violent, mean that this consequence is not out of all proportion to the offending.
Discharge without conviction
[10] Section 106 of the Sentencing Act 2002 grants the court a discretion to discharge an offender without conviction. Pursuant to s 107:
The court must not discharge an offender without conviction 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.
[11] The approach to be followed in applying the s 107 test is set out in the judgment of the Court of Appeal in Z(CA 447/2012) v R:3
… [w]hen considering the gravity of the offence, the court should consider all the aggravating and mitigating factors relating to the offending and the offender; the court should then identify the direct and indirect consequences of conviction for the offender and consider whether those consequences are out of all proportion to the gravity of the offence; 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 …
[12] What this approach requires is that the courts must first determine the seriousness of the offence, having regard to both the aggravating and mitigating factors of the offence, and also to those factors which apply to the offender. Secondly, the court should then determine the direct and indirect consequences of conviction and determine if they are out of all proportion to the offending. Finally, the Judge must consider whether to exercise its discretion to grant a discharge.
Analysis
Seriousness of the offending
[13] The seriousness of the offending should not be understated. This was a serious and persistent attack that involved both violence to the victim and damage to property. It was premeditated and only ended when members of the public
intervened. While Mr Wilkinson-Smith submitted that the attack should be viewed
3 Z(CA 447/2012) v R [2012] NZCA 599 at [27].
as provoked, it is clear that Ms Zhao’s reaction was both unacceptable and out of
proportion with any perceived slight.
[14] Ms Zhao’s guilty plea, the fact that she has no previous convictions, and the fact that she paid the ordered reparation the day after her sentencing, all mitigate the gravity of her offending to some extent. However, I am not persuaded that the Judge was wrong to assess the gravity of the offending as being moderately serious. This is particularly so in light of the premeditation involved, the actual damage to the victim’s car, and the persistence and violence of Ms Zhao’s attack on the victim.
[15] It is relevant to note at this point that in an affidavit sworn and filed after the appeal hearing, the appellant said that she and her husband had travelled to China on
1 September 2014 for a traditional wedding ceremony. They spent three weeks in China with friends and family. The appellant considers that her relationship with her husband has been strengthened by the visit to China, but they need help to focus on their new life together.
[16] The appellant also said that she has paid for a course of five sessions of anger management. She attended one session before leaving for China. She had made an appointment to re-start the sessions on Friday 28 November 2014.
Direct and indirect consequences of conviction
[17] The prospect of Ms Zhao being deported to China is central to the determination whether the consequences of conviction are out of all proportion to the gravity of her offending. At sentencing in the District Court, the Judge was advised that Ms Zhao is present in New Zealand under a residence class visa which was approved in May 2012. As a result, her offending in March 2014 occurred 22 months after the visa was granted. As a result, s 161(1)(a)(iii) of the Immigration Act 2009 applies. As relevant, s 161 provides:
161Deportation liability of residence class visa holder convicted of criminal offence
(1) A residence class visa holder is liable for deportation if he or she is
convicted, in New Zealand or elsewhere—
(a) of an offence for which the court has the power to impose imprisonment for a term of three months or more if the offence was committed any time—
…
(iii) not later than 2 years after the person first held a residence class visa; or
…
(2) A person liable for deportation under this section may, not later than
28 days after being served with a deportation liability notice, appeal to the [Deportation Review Tribunal]—
(a) on humanitarian grounds against his or her liability for
deportation;
…
[18] Because her liability for deportation arises under s 161, Ms Zhao is also subject to s 201 of the Act which provides, as relevant:
201 Persons who may appeal to Tribunal on facts
…
(2) The following persons may not appeal to the Tribunal on the facts against their liability for deportation:
(a) residents or permanent residents whose liability for
deportation arises under section … 161:
…
[19] However, under s 206, Ms Zhao is entitled to appeal on humanitarian grounds:
206 Who may appeal to Tribunal on humanitarian grounds
(1) The following persons may appeal to the Tribunal on humanitarian grounds against their liability for deportation:
…
(c) a resident or permanent resident liability for deportation
under section … 161:
…
[20] The grounds for such an appeal are set out in s 207, which provides:
207 Grounds for determining humanitarian appeal
(1) The Tribunal must allow an appeal against liability for deportation on humanitarian grounds only where it is satisfied that—
(a) there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and
(b) it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New
Zealand.
(2) In determining whether it would be unjust or unduly harsh to deport from New Zealand an appellant who became liable for deportation under section 161, and whether it would be contrary to the public interest to allow the appellant to remain in New Zealand, the Tribunal must have regard to any submissions of a victim made in accordance with s 208.
[21] I accept that an appeal against deportation will only succeed in limited circumstances. It is necessary to establish “exceptional circumstances” before an appeal can succeed.
[22] Ms Zhao could also apply to the Minister of Immigration to exercise the discretion against deportation under s 172 of the Immigration Act which provides, as relevant:
172 Minister may cancel or suspend liability to deportation
(1) The Minister may at any time, by written notice, cancel a person’s
liability for deportation.
(2) The Minister may at any time, by written notice, suspend a residents
class visa holder’s liability for deportation—
(a) for a period not exceeding five years; and
(b) subject to the visa holder complying with any conditions stated in the notice (which take effect from the date specified in the notice, being a date not earlier than the date of notification).
…
[23] Deportation would undoubtedly be a serious consequence of the appellant’s conviction. However, the Immigration Act provides an opportunity for the appellant to appeal against deportation, and to apply to the Minister of Immigration to cancel or suspend a deportation notice. With respect, I agree with the observations made by Asher J in Zhang v Ministry of Economic Development, and by Chisholm J in Rogers
v Police. In Zhang, Asher J said:4
In relation to a conviction affecting an offender’s immigration status, or indeed ability to travel overseas, the courts often conclude that it is appropriate for the consequences of conviction to be resolved by the appropriate authorities, rather than the Court attempting to pre-empt that decision-making process by a decision to discharge without conviction. … There is nothing that requires the courts to intervene to try and impose their perception of what the right immigration consequences should be. That is
4 Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011 at [14].
best left to the immigration authorities. But a court’s assessment of culpability in the sentencing exercise may assist those authorities. And there will always be occasions where in a finely balanced case a discharge may be warranted on these types of grounds. … The case for discharge may not be so strong where the details of the offending will be known and closely examined by the relevant authority in any event, than where the query will only be as to prior convictions, for instance in an application for professional certification.
[24] In Rogers, Chisholm J held, when declining to discharge an offender without conviction when there was a real and appreciable risk that she might be deported, and thus separated from her son:5
When assessing this matter I keep in mind that there are appeal rights to a statutory body which will be capable of providing an independent assessment if steps are taken to deport the appellant. In this type of situation it is generally appropriate to allow such a body to make a final decision as to whether or not there should be deportation.
[25] In the present case, I have concluded that it is not for this Court to attempt to prejudge the decision which the Deportation Review Tribunal and/or The Minister might make on an appeal. These are immigration issues and, as Asher J observed, they are best left to the immigration authorities. The Tribunal and, if necessary, the Minister, will be able to assess the seriousness of Ms Zhao’s offending and her own personal circumstances so as to be able to determine whether there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for her to be deported, or on which the Minister could decide whether her liability for deportation could be cancelled or suspended.
Result
[26] I am not persuaded that the Judge erred in refusing to discharge Ms Zhao without conviction. The appeal is dismissed.
Andrews J
5 Rogers v Police HC Christchurch CRI-2010-409-228, 17 February 2011 at [24].
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