Zhu v R

Case [2021] NZCA 254 18 June 2021

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA721/2020
[2021] NZCA 254

BETWEEN	YEQING ZHU Appellant
AND	THE QUEEN Respondent

Hearing:	12 May 2021
Court:	Miller, Venning and Peters JJ
Counsel:	G J Newell for Appellant Z A Fuhr for Respondent
Judgment:	18 June 2021 at 12.00 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

Mr Zhu appeals a District Court decision declining him a discharge without conviction on two charges, one of operating a vehicle in a race, thereby causing death,[1] and another of failing to stop and ascertain whether anyone had been injured[2] after the motorcyclist he was racing crashed. He says that if not discharged he will face deportation to his home country, China, and resulting family separation.
[1]Land Transport Act 1988, ss 36A(1)(a) and 36A(3).
[2]Section 36(1)(c).
Judge Paul thought these consequences likely but did not find them wholly disproportionate to the gravity of the offending, which he considered serious.[3] He sentenced Mr Zhu to 12 months’ home detention and ordered him to pay $10,000 in emotional harm reparation.[4]

Narrative facts

[3]R v Zhu [2020] NZDC 24242 [Sentencing notes] at [14]–[15].

[4]At [19].

At about 11.20 pm on 23 February 2019, Mr Zhu was driving his Audi on the Ellerslie-Panmure Highway in the Auckland suburb of Mount Wellington. He stopped at an intersection where he was adjacent to a motorcycle ridden by Mr Jacob Chase. When the lights changed both machines accelerated heavily, travelling in excess of the posted speed limit of 50 km/h. As they crested a moderate rise side-by-side, they encountered a car which was making a right turn across their lanes. Mr Chase’s motorcycle struck that car, throwing him onto the roadway. He died several hours later from his injuries.
Mr Zhu did not stop. He drove home. When interviewed some time later he denied racing or travelling faster than the speed limit. He explained that he saw the motorcycle crash in front of him but did not stop as he wanted to get home.
Mr Zhu has lived in New Zealand since 2012 and he owned the Audi, but he has never held a New Zealand driver’s licence.
His first appearance was 4 October 2019. He elected trial by jury. He pleaded guilty on 31 August 2020, after a sentence indication, and was sentenced on 24 November 2020. The delay is attributed to a change in counsel and the COVID-19 lockdown.

The sentencing

The pre-sentence report

The pre-sentence report recorded that Mr Zhu was aged 29 and identified as Chinese. He lives with his wife, whom he married in 2018, and her parents. His own parents remain in China. He and his wife have a one-year-old son, and he has a daughter from a previous relationship. It appears that she lives in New Zealand with her mother but he has no contact with her. The author of the report found Mr Zhu remorseful and…

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 Zhu v R

Details

AGLC: Zhu v R [2021] NZCA 254
Case: [2021] NZCA 254
Decision Date: 18 June 2021 at 12.00 pm

CaseChat Overview and Summary

The appellant, Mr Zhu, was convicted of operating a vehicle in a race, causing death, and failing to stop and ascertain whether anyone had been injured after a motorcyclist he was racing crashed. The case was heard by the Court of Appeal of New Zealand, with Miller, Venning, and Peters JJ presiding. Mr Zhu sought a discharge without conviction, arguing that if not granted, he would face deportation to China and family separation. The District Court had declined the request, finding the offending serious and the consequences of conviction not wholly disproportionate. Mr Zhu appealed this decision.
The legal issues before the court were whether the District Court erred in assessing the gravity of the offending and whether the consequences of conviction were disproportionate to the gravity of the offending. The court found that the District Court had appropriately taken into account mitigating factors such as the guilty plea, previous good character, offer of reparation, and remorse. The court also determined that the consequences of conviction, specifically the liability to deportation, were not out of proportion to the gravity of the offending. The court reasoned that the consequences of the offending would be considered by immigration decision-makers along with Mr Zhu's personal and family circumstances.
The appeal was dismissed, upholding the District Court's decision. The Court of Appeal found the offending serious, with significant aggravating factors such as Mr Zhu's failure to stop and his history of driving infringements. The court concluded that the consequences of conviction, while serious, were not disproportionate to the gravity of the offending. Therefore, Mr Zhu could not point to consequences of conviction that were out of all proportion to the gravity of his offending. The final orders were that the appeal is dismissed.

Orders