Zhong v The Queen

[2019] NZHC 2458

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-000328

[2019] NZHC 2458

BETWEEN

JIN ZHONG

Appellant

AND

THE QUEEN

Respondent

Hearing:	3 September 2019
Appearances:	D Niven and T Cheung for the Appellant J A Lee for the Respondent
Judgment:	3 September 2019
Reasons:	27 September 2019

REASONS JUDGMENT OF HINTON J

This judgment was delivered by me on 27 September 2019 at 4.00 pm

…………………………………………………………………… Registrar/Deputy Registrar

Counsel/Solicitors:

David Niven, Barrister, Auckland McLeod & Associates, Auckland Meredith Connell, Auckland

ZHONG v R [2019] NZHC 2458 [27 September 2019]

[1]    On 3 September 2019, I made an order allowing Mr Zhong’s appeal and replacing the sentence of imprisonment with a sentence of one month’s home detention, to be served at Ahikaa Trust, 15 Karaka Street, Eden Terrace on the conditions set out at paragraph 9 of the probation officer’s letter dated 22 July 2019.

[2]These are my reasons.

Background

[3]    On 31 July 2019, Mr Zhong was sentenced  by  Judge  Sinclair  in  the District Court at Auckland1 to a term of imprisonment of 11-and-a-half months for two charges, threatens to kill2 and injuring with intent to injure.3

[4]    Mr Zhong had earlier pleaded guilty after Judge Sinclair gave a sentence indication in which she said that the indicated sentence could be converted to home detention provided a suitable address was available. There was of course no confirmed address at that time.

[5]    Mr Zhong sought home detention at the sentencing hearing to the address of Ahikaa Trust. This was not opposed by the Crown, although they noted a concern raised in the pre-sentence report regarding the proposed address.

[6]    The Judge, however, declined to order home detention because she shared the report-writer’s concern.

[7]The Judge’s reason for declining to allow home detention was as follows:

[18] … I have a responsibility to ensure your welfare is safe guarded and your placement enables you to address your specific needs and rehabilitative issues. Given your personal circumstances I am not satisfied this placement is appropriate. Even though there is an indication that you would reside on a separate floor with your own facilities I am not persuaded that it is suitable particularly in light of the reference to your social isolation.

[8]The background to that conclusion appeared at [17] of the judgment as follows:

1      R v Zhong [2019] NZDC 15587.

2      Crimes Act 1961, s 306.

3      Crimes Act 1961, s 189(2).

[17] … The probation officer states, “The confluence of individuals and their circumstances give rise for concern. Concerns remain regarding the presence of offenders with entrenched gang connections, history of violence and associated drug use.” Mr Keen, the report writer, adds, “The address would appear to almost exclusively attract individuals with these backgrounds.” He notes that while you do not present with gang affiliations or other substance mis-use issues, your personal circumstances and social isolation leave no doubt as to your level of vulnerability. He adds, “Whilst the Trust connections to other community-based programmes and interventions may superficially be beneficial,” based on his interview with you, such an environment, clearly, is not an ideal environment for you to address the issues of violence and social isolation outlined in the report.

[9]    A reading of the decision as a whole makes it clear the Judge is not so much concerned about Mr Zhong’s safety from the other occupants, but rather about social isolation in his particular circumstances.

[10]   By the date of hearing of this appeal on 3 September 2019, the length of time already served in prison by Mr Zhong was such that, if the remaining time were commuted to home detention, he would have one month left to serve.

[11]My reasons for allowing the appeal are:

(a)The quality of service and credibility of the Ahikaa Trust as a rehabilitative organisation has already been addressed positively in two recent decisions and no question was raised about that before me.4

(b)The proposal was that Mr Zhong be housed separately from the other residents referred to by Judge Sinclair. As noted, the Judge’s concern was not regarding safety issues presented by the other residents, but rather that, as a result, Mr Zhong would be vulnerable through social isolation.

(c)Mr Zhong was not going to be socially isolated, as one of the Ahikaa staff program managers was to live on the same level that he was on. He would receive more than passing support from them. Furthermore, there was evidence that the Ahikaa Trust actively assists residents in

4      McLean v Police [2019] NZHC 719 at [17]; and R v Sharpe [2019] NZDC 13011 at [14].

engaging programmes to assist their individual needs and a personalised programme had been drafted for Mr Zhong. I am confident that the Trust would provide him with a sufficient level of support. After all, that is the business they are in.

(d)Vulnerability through social isolation for the period of time at issue here would have been a better alternative, in any event, than mixing in with the prison population.

(e)Home detention was the least restrictive outcome that was appropriate in the circumstances.

[12]   Finally, I note as a practical consideration (not a ground) that, by the time the matter reached this Court on appeal, the relevant timeframe was de minimis.

Hinton J