SHI v NZ POLICE [2020] NZHC 59

SHI v NZ POLICE [2020] NZHC 59 [3 February 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-000332[2020] NZHC 59BETWEEN FENG LEI SHIAppellantAND NEW ZEALAND POLICERespondentHearing: 17 December 2019Appearances: S Gray for the AppellantJ Kang for the RespondentJudgment: 3 February 2020JUDGMENT OF WOOLFORD JThis judgment was delivered by me on Monday, 3 February 2020 at 4.00 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors: Meredith Connell (Office of the Crown Solicitor), AucklandCounsel: Ms S Gray, AucklandIntroduction[1] On 8 November 2018, Feng Lei Shi pleaded guilty in the Waitakere DistrictCourt to charges of male assaults female,1 wilful damage2 and threatening behaviour.3Mr Shi applied for a discharge without conviction under ss 106 – 107 of the SentencingAct 2002.[2] On 2 July 2019, Judge N J Sainsbury declined the application and sentencedMr Shi to six months' supervision, and ordered him to pay $1,539 in reparation for amobile phone he damaged and $500 as emotional harm payment to the victim of hisassault.4[3] Mr Shi now appeals against the refusal to grant him a discharge withoutconviction on the grounds that the Judge erred in his assessment of the consequencesof conviction.Factual background[4] At 7.45 pm on 18 September 2018, the appellant was at his home address withhis wife and their six-year-old daughter. The appellant and his wife had beenexperiencing difficulties in their marriage and had been living in separate bedrooms.Following a heated discussion, the appellant grabbed his wife's mobile phone and bentit, causing it to break.[5] The appellant then grabbed his wife by the throat with his left hand and pushedher with enough force to cause her to stumble backwards. The appellant pushed hiswife in the back as she was stumbling, causing her to fall onto a sofa. The appellantpushed her in the chest two further times as she attempted to stand up. The appellanttold his wife that he would burn the house down.1 Crimes Act 1961, s 194(b). Maximum penalty of two years' imprisonment.2 Summary Offences Act 1981, s 11(1)(a). Maximum penalty of three months' imprisonment or a$2,000 fine.3 Section 21(1)(a). Maximum penalty of three months' imprisonment or a $2,000 fine.4 Police v Shi [2019] NZDC 12570.District Court decision[6] After hearing the facts of the case, the Judge noted the serious features of theoffending as family violence, some degree of actual force used and the presence of thecouple's six-year-old daughter. The Judge then referred to the appellant's lack ofprevious convictions, his completion of the Stopping Violence Programme, hisacceptance of responsibility and his offer to pay reparation, as all helping to reducethe gravity of the offending but said that it still remained a low to moderate offending.[7] The appellant advanced two consequences of a conviction in support of hisapplication: restriction on his ability to engage with his daughter's school activities asa volunteer parent and barriers to travel in the context of overseas business trips.Specifically, the appellant submitted that a conviction for domestic violence wouldpreclude him from travelling to Australia for his business and submitted variousinternet articles about Australian immigration policy. The Judge determined there wasno evidential foundation that the two consequences were likely to occur or that theywere disproportionate consequences. He considered that schools and foreign countriesare entitled to make such checks, and that it would be wrong to subvert that process.[8] The Judge accepted however that if a situation arose where overseas businesstrips were curtailed for no other reason than the fact that he had these convictions, withthe result of a real and appreciable risk that his business collapse, there might be adisproportionate result. But he did not have an evidential basis for that. Theapplication was therefore declined.Fresh evidence on appeal[9] In the District Court, the appellant relied on information from the internet asevidence of Australian immigration policy. The District Court Judge did not considerthis reliable:5Maybe it as draconian as it appears or maybe not. I am not prepared to makea finding on that based on a printout from the Internet. I would have expectedthere to be an affidavit from an immigration specialist in order to form afoundation for that submission.5 At [19].[10] Accordingly, the appellant seeks to admit an affidavit from Ms Xinjing Liang,an Australian solicitor and registered migrant agent as fresh evidence. Section 335 ofthe Criminal Procedure Act 2011 allows the Court to receive new evidence on appealif it thinks it is necessary or expedient in the interests of justice. An appellant mustdemonstrate that the new evidence is sufficiently fresh and sufficiently credible.6Evidence which could, with reasonable diligence, have been called at trial will notqualify as sufficiently fresh.7 However, this is not an immutable rule — the overridingcriterion is what course will best serve the interests of justice.8 To that end, thestronger the new evidence is from the appellant's point of view, the greater the risk ofa miscarriage of justice if it is not admitted, and the more likely it is to be admitted,whether or not it could be described as fresh.9[11] The Crown opposes leave to admit Ms Liang's affidavit on the basis that it isnot fresh evidence. The Crown submits there is no practical reason as to why evidencefrom Ms Liang, or any other Australian migration agent or a solicitor practisingimmigration law, was not available at sentencing.[12] I accept this new evidence meets the test of being sufficiently credible to beadmitted, although it may not, strictly speaking, be able to be described as fresh. Itdoes however constitute reliable evidence of the potential immigration consequencesof a conviction. I am of the view that it is in the interests of justice to allow theappellant to rely on evidence from an immigration lawyer, rather than a "printout fromthe Internet". I therefore admit the affidavit as new evidence.Legal frameworkLegal test for discharge without conviction[13] Section 106 of the Sentencing Act 2002 permits a court to discharge anoffender without conviction. Section 107 provides that a court must not do so unlesssatisfied that the direct and indirect consequences of a conviction would be out of allproportion to the gravity of the offence.6 Bain v R [2007] UKPC 33 at [34]; and Lundy v R [2013] UKPC 28 at [116]–[118].7 R v Bain [2001] 1 NZLR 638 (CA) at [10].8 At [22]; and Bain v R [2007] UKPC 33 at [34].9 R v Bain [2001] 1 NZLR 638 (CA) at [22].[14] Disproportionality is not a matter of discretion, it is a matter of fact requiringjudicial assessment.10 The Court should follow three steps:11(a) The Court must consider the gravity of the offending;(b) The Court must consider the direct and indirect consequences of aconviction on the offender; and(c) Finally, the Court must determine whether the consequences are out ofall proportion to the gravity of the offending.Principles on appeal[15] Appeals against the proportionality test under s 107 are by way of rehearing,with the appellate court making its own assessment of whether the criteria areestablished.12 If a discharge without conviction should have been granted, then therewill have been a material error by the sentencing Judge, or a miscarriage of justice willhave occurred for any other reason, and so the appeal against conviction must beallowed.13SubmissionsAppellant submissions[16] On appeal, counsel for the appellant focuses on the consequence of beingunable to travel to support his business. The appellant runs two businesses. He statesthat he regularly has to visit suppliers in Australia and the United States to maintainstrong business relationships and assess stock. He has a new potential supplier inAustralia, but submits that he needs to visit them in person to assess the product andformalise details of the business relationship.10 H (CA680/11) v R [2012] NZCA 198 at [20].11 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16]; and Prasad v R [2018] NZCA 537 at[11].12 H v R [2012] NZCA 198 at [35]–[36].13 Criminal Procedure Act 2011, s 232(2)(b) or (c); and Jackson v R [2016] NZCA 627 at [12].[17] The affidavit of Ms Liang advises that the Australian immigration authoritiesdetermine whether an applicant for an entry visa passes a threshold character test and,if they do not, whether there is "another reason" for a cancellation decision to bevaried. A conviction for intimate partner violence would mean that the appellant failsthe Australian character test. However, he could apply for a character waiver. Thismeans he would have to provide evidence that he will protect and comply with theexpectations of the Australian community. However, Ms Liang expresses the viewthat the appellant "is more likely than not to fail on a character waiver".Crown submissions[18] The Crown submits the overall gravity of the offending was closer to moderatethan low.[19] With regard to the fact that the appellant might not be able to travel to Australiafor business, the Crown submits that the appellant's livelihood does not appeardependent on his ability to travel to Australia. Further, the Crown submits it is notclear why he has to meet Australian suppliers in person and suggests there would beways for the appellant to conduct his business without visiting Australia (such asrequesting samples of products to be sent to him).[20] The Crown also notes that the appellant is theoretically able to obtain acharacter waiver, so he is not absolutely barred from travel. Lastly, the Crown submitsthat the appellant's ability to travel overseas should be a matter for the relevantimmigration authorities to determine.Analysis[21] I will not resile from Judge Sainsbury's view of the gravity of the offending —it was low to moderate family violence. It is relevant that it occurred in front of theappellant's six-year-old daughter.[22] As to the consequences of the conviction, it must be emphasised that the courtsgenerally leave issues relating to a person's immigration status to be determined bythe relevant authorities.14 Indeed, Judge Sainsbury noted that "if a foreign countrychooses to exclude certain people from visiting it, that is their sovereign right".15However, there have been cases where a discharge has been granted because of theconsequences that particular kinds of conviction would have on a person's ability totravel overseas. For example, in Thompson v Police, this Court granted a discharge,noting that a conviction under the Arms Act 1983 is "likely to be viewed far moreseriously by foreign immigration and customs officials".16 Similarly, in Shakib vPolice, this Court granted a discharge, again reasoning that "a conviction for particularoffence [that is, providing false information to the Police] would create a real risk that[the appellant] is not able to gain entry to some of the countries he is required to visiton a frequent basis".17[23] In her affidavit dated 28 November 2019, the solicitor and registered migrationagent, Ms Liang, states that if the applicant's conviction remained on his record, hewould fail the character test set out in s 501 of the Migration Act 1958 (Cth). Theappellant would then require a character waiver. Ms Liang then states that theappellant would likely be refused a character waiver on the basis that he has nodomestic connections to Australia.[24] Although I agree with the Crown that the need for a character waiver is not anabsolute bar to the appellant's ability to travel to Australia on business, I adopt thecomments of Randerson J in Iosefa v Police that it is sufficient if the Court is satisfiedthat there is a real and appreciable risk that such consequence would occur.18Ms Liang's affidavit now confirms that there is a real and appreciable risk that theappellant would be refused a visa to travel to Australia on business.[25] What then would that mean for the appellant's business? The sentencing Judgeaccepted that if the situation arose where business trips to either Australia or the UnitedStates were curtailed for no other reason than the fact that the appellant had theseconvictions, with the result of a real and appreciable risk that his business collapse,14 Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011.15 Police v Shi [2019] NZDC 12570 at [19].16 Thompson v Police [2013] NZHC 1369 at [15].17 Shakib v Police [2014] NZHC 2596 at [13].18 Iosefa v Police HC Christchurch CIV 2004-404-64, 21 April 2005 at [34].there might be a disproportionate result. However, the Judge said he did not have asufficient evidential foundation to find that to be the case.[26] Although there were two affidavits sworn by the appellant, dated 13 and29 May 2019, before the Judge, they did not contain much detail above the effect onthe business if the appellant was not able to travel to Australia (and the United States).I now have the advantage of an updating affidavit from the appellant dated 3 December2019. Since the sentencing, the appellant estimates that he has lost approximately$40,000 in sales as he does not have the stock to maintain his previous level of sales.He fears it will only get worse the longer he is unable to travel to Australia (and theUnited States) and does not think his business will survive long if he cannot securenew stockists.[27] Although the Crown submits that the appellant could arrange to have samplesof stock sent to him in New Zealand which would enable him to make purchasingdecisions without overseas travel, I am of the view that the success of many smallbusiness enterprises relies on personal relationships. In this case the appellant is quitereliant on the availability of his stockists. Although overseas travel may not be crucialfor his framing business, it would seem that it is for his memorabilia business. Astockist of memorabilia would be unlikely to send unique pieces to the appellant inNew Zealand for inspection. I also accept that it is very difficult to assess the qualityof memorabilia online or through photographs.[28] I have no reason to doubt the appellant's estimate of sales lost since sentencingor his assessment of the long term sustainability of his business without overseastravel. This material was not before the sentencing Judge.Result[29] In those circumstances, the appeal is allowed on the basis of new evidence notavailable to the sentencing Judge. The direct and indirect consequences of aconviction would be out of all proportion to the gravity of the offence. The appellant'sconvictions for male assaults female, wilful damage and threatening behaviour arequashed and he is discharged without conviction. However, the order for the paymentof $1,539 in reparation for the damaged mobile phone and $500 emotional harmreparation remains.________________________________Woolford J