JING v NEW ZEALAND POLICE [2019] NZHC 2999

JING v NEW ZEALAND POLICE [2019] NZHC 2999 [18 November 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI 2019-404-0379[2019] NZHC 2999BETWEEN JIANQIAO JINGAppellantAND NEW ZEALAND POLICERespondentDate of hearing: 18 November 2019Appearances: SNB Wimsett for Mr JingG J Fraser for the respondentJudgment: 18 November 2019ORAL JUDGMENT OF JAGOSE JSolicitors/Counsel:Samuel Wimsett Barrister, AucklandMeredith Connell, Auckland[1] Jianqiao Jing pleaded guilty to threatening to kill or do grievous bodily harmon 25 March 2019.1 He was sentenced to 40 hours of community work by Judge A JFitzgerald in the District Court at Auckland on 16 July 2019.2 Mr Jing appeals againstthe Judge's refusal to grant him a discharge without conviction, as he had sought.Background[2] Mr Jing lives in New Zealand on a permanent resident visa. The victim of hisoffending worked as a subcontractor on one of his building projects. Their relationshipbecame strained. At approximately 10.15 pm on 1 October 2018, Mr Jing went to thevictim's address. Mr Jing verbally abused the victim and his partner when they openedtheir front door to him, before saying "[t]his time I came with my fists, next time I willbring a knife and I will kill you. I know where you live, you can't get away". Thevictim's three-year-old daughter was present at the address. Mr Jing admitted to policehe "said some bad things" but could not remember exactly what he said.Judgment under appeal[3] Mr Jing was entitled to be discharged without conviction only if the direct andindirect consequences of his conviction would be out of all proportion to the gravityof the offence.3 Only then may the sentencing judge decide if to exercise residualdiscretion. The proportionality test is a question of fact requiring judicial assessment.There must be a "real and appreciable" risk any given consequence will arise; thisrecognises the court is assessing future likelihood.4[4] The Judge began by considering the gravity of the offending. He identified thecharge was serious. Several aggravating factors were present, including the residentialaddress of the offending, the specificity of the threat, and its continuing nature. Theoffending was "within the medium range", but mitigated by various personal factorsincluding Mr Jing's guilty plea and his participation in restorative justice. The Judgeacknowledged the "major consequence" of Mr Jing's conviction was the risk of1 Crimes Act 1961, s 306. Maximum penalty is 7 years' imprisonment.2 Police v Jing [2019] NZDC 13792.3 Sentencing Act 2002, s 107; and Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142.4 DC (CA47/2013) v R [2013] NZCA 255 at [43].deportation,5 if that was what immigration authorities thought appropriate,6 butimmigration consequences themselves were not out of all proportion to the gravity ofthe offending.7Issues on appeal[5] Mr Jing's counsel, Sam Wimsett, says the Judge erred in his assessment of thegravity of the offending and in holding the consequence of deportation was not out ofall proportion to the gravity of the offending. In particular, Mr Wimsett says supportingevidence as to the likelihood of deportation was not sufficiently considered.Approach on appeal[6] An appeal against a refusal to grant a discharge without conviction is an appealagainst conviction and sentence.8 If Mr Jing can establish Judge Cameron was wrong,I will consider the matter afresh.9Discussion—gravity of offending[7] I do not accept the gravity of Mr Jing's offending only was low. Threateningto kill and/or cause grievous bodily harm, in however brief an altercation, carries amaximum penalty of seven years. Mr Jing made threats of serious violence – in whollyinappropriate response to some commercial dispute, however frustrating to him – atthe victims' home late at night. The threats were real. An accomplished martial artist,he was comprehended by the victims as having the capacity to carry them out. Thevictims' fear remained evident even at the restorative justice meeting.[8] Assessing the gravity of the offending requires consideration of aggravatingand mitigating factors relating to both the offending and the offender.10 This is an5 Police v Jing, above n 2, at [11].6 At [13].7 At [14].8 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [9].9 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13].10 Rahim v R [2018] NZCA 182 at [15]; Z (CA447/2012) v R, above n 3, at [27]; DC (CA47/2013) vR, above n 4, at [35]; and Waine v R [2017] NZCA 287 at [21].evaluative, highly fact-dependent exercise.11 The Judge did not expressly reformulatehis assessment of gravity after consideration of mitigating features. But he spent sometime canvassing Mr Jing's mitigating features; he clearly factored those features intohis assessment of the offending's gravity. He expressly noted Mr Jing was "entitled tocredit" for the mitigating factors mentioned.12[9] On balance, I characterise the offending as being of no more than moderategravity, as the Judge also must have concluded in allowing 'credit' from his startingpoint "within the medium range".—consequences of conviction[10] Mr Wimsett says conviction's serious consequence of the threat of deportationwas not adequately considered. He primarily relies on the expert opinion of Sen MouCheng, a barrister and solicitor practicing immigration law in Auckland, expressed inhis affidavit sworn 29 April 2019 (but to which the Judge did not refer). Mr Wimsettpoints to the life Mr Jing has established for himself in New Zealand and argues theongoing threat of deportation is a real and serious consequence.[11] The Crown accepts Mr Jing is liable for deportation for up to 10 years,13 giventhe maximum penalty for his offending is over two years.14 Mr Jing has not yetreceived a deportation liability notice, but he remains liable for deportation regardlessof when he is served.15 Mr Cheng opines a conviction would have the followingramifications:(a) Mr Jing will become liable for deportation for up to ten years;(b) once Immigration New Zealand is notified of the conviction, adeportation liability notice will be served on Mr Jing. Mr Jing will begiven an opportunity to provide good reasons as to why deportation11 Rahim v R, above n 10, at [16].12 Police v Jing, above n 2, at [10].13 Immigration Act 2009, s 167(1).14 Section 161(1)(b).15 Section 167(1). He remains liable for deportation "for a period of 10 years following the arisingof the liability for deportation" (emphasis added).should not be carried out against him; there is no guarantee ofoutcome;16(c) should the Minister decide to deport Mr Jing, Mr Jing will have a rightto appeal to the Immigration and Protection Tribunal. There is a risk hispersonal circumstances may not cross the legal threshold, whichrequires exceptionality; and(d) if Mr Jing wishes to resist deportation, the process will be long and thecosts significant.[12] Mr Jing may yet be issued with a deportation liability notice.17 He wishes toapply for citizenship. Under s 169 of the Immigration Act, that application would besuspended while he remains liable for deportation. Deportation is not a foregoneconclusion. The Minister may at any time, by written notice, cancel or suspend aperson's liability for deportation.18 But the Crown accepts there is a real andappreciable risk that the appellant may be deported if the deportation protocol isengaged.[13] The reluctance of courts to intervene in the decision-making of specialistbodies such as Immigration New Zealand is most evident where the outcome cannotreasonably be predicted.19 Here, there is uncertainty when the deportation protocolwill be engaged, if Mr Jing's deportation liability would be cancelled or suspended bythe Minister, and if any appeal rights could successfully be exercised. I "must assumethat immigration authorities will behave fairly and rationally".20 Presumably,Mr Jing's lack of previous criminal convictions and established life here would beproffered for consideration on any decision concerning his continued residency.16 Section 171(c).17 Section 170.18 Sections 172(1) and (2).19 Rahim v R, above n 10, at [29].20 Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011 at[24].—proportionality analysis[14] I recognise "there may be rare cases where the exposure to scrutiny byimmigration services might itself give rise to consequences that are out of proportion"to the gravity of the offending,21 but that is not this case. The factors Mr Wimsettwould have me take into account to avoid the risk of deportation should also be urgedon immigration authorities in circumstances in which the risk (but not necessarilydeportation itself) crystallised. Such suggests those factors more appropriately areaddressed to the authorities deciding deportation than to me in seeking to avoid thatdecision. I should not pre-empt the authorities' statutory role and considerations.[15] Certainly the risk of deportation has tangible consequences in itself, includingin the resultant uncertainty and expense incurred, but not out of all proportion withserious offending of the gravity here. That offending reflects Mr Jing's deliberatedeparture from community standards, which makes the consequences of conviction allthe more apposite for immigration authorities' consideration.22Result[16] Mr Jing's appeal is dismissed.—Jagose J21 Zhang v Police [2018] NZHC 285 at [32]; see also George v Police [2014] NZHC 1725 at [46].22 A (CA747/10) v R [2011] NZCA 328 at [30], citing "for example similar comments made in R vRollo CA1/04, 8 October 2004"; cf, Jeon v Police [2014] NZHC 66 at [21]: the defendant's"momentary inadvertence result[ed] in a driving offence of moderate seriousness"; Kumar vPolice [2015] NZHC 3293 at [26]–[27]: the defendant "understandabl[y] ultimately snapped"after "a prolonged history of racial abuse directed by the victim towards [him]".