XU v DEPARTMENT OF CORRECTIONS [2019] NZHC 472

XU v DEPARTMENT OF CORRECTIONS [2019] NZHC 472 [15 March 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-79[2019] NZHC 472BETWEEN KANG XUApplicantAND DEPARTMENT OF CORRECTIONSRespondentHearing: 15 March 2019 (Telephone conference)Counsel: A Simperingham for applicantT A Simmonds for respondentJudgment: 15 March 2019ORAL JUDGMENT OF KATZ JSolicitors: T A Simmonds, Lorne Street Chambers, AucklandA Simperingham, Woodward Chrisp, Gisborne[1] Following a lengthy judge-alone trial I found Kang Xu guilty of variouscharges relating to her involvement in a large-scale mortgage fraud scheme that wasperpetrated on the Bank of New Zealand ("BNZ") and ANZ Bank New ZealandLimited ("ANZ").[2] On 3 August 2018 I sentenced Ms Xu to 12 months home detention.1 Irecorded in my sentencing notes that that was a fairly lenient sentence, and that I hadexercised a considerable degree of compassion in respect of Ms Xu's personalcircumstances. Those circumstances included that she had a school aged child athome, and heavy responsibilities for the care of her elderly parents and also those ofher husband, Kang Huang. Mr Huang had already been imprisoned in respect of hisown involvement in the fraudulent mortgage fraud scheme.[3] Ms Xu now applies to suspend her sentence of home detention for a period oftwo weeks, between 16 March and 23 March 2019, to enable her to accompany hermother to travel to China for the purpose of attending her uncle's funeral. Ms Xu'suncle died on 13 March 2019. His funeral will be held on 18 March 2019 in China.Ms Xu and her 78-year-old mother would like to travel to China to attend the funeral.The application was filed this morning and is being heard today via telephoneconference, given the urgency.[4] Ms Xu deposes that she and her mother have a significant family connectionwith the deceased. Ms Xu's mother does not speak English and she has a variety ofhealth issues. She would not be able to travel to China alone without anyone toaccompany her. Ms Xu deposes that there is no alternative person who can assist.She says that it will cause her and her mother significant distress if they are not ableto attend her uncle's funeral.1 R v Xu, Chen and Jiang [2018] NZHC 1971.[5] The application is made pursuant to s 80F(1)(d)(i) of the Sentencing Act 2002("the Act"). Section 80F relevantly provides as follows:80F Application for variation or cancellation of sentence of homedetention(1) An offender who is subject to a sentence of home detention, or a probationofficer, may apply for an order under subsection (4) on the grounds that—(d) having regard to any changes in circumstances since thesentence was imposed and to the manner in which theoffender has responded to the sentence,—(i) the rehabilitation and reintegration of the offender wouldbe advanced by the remission, suspension, or variation of anyspecial conditions, or the imposition of additional specialconditions; (4) On an application under subsection (1) the court may, if it is satisfiedthat the grounds on which the application is based have been established,—(a) remit, suspend, or vary any special conditions imposed by thecourt, or impose additional special conditions[6] In my view the application is misconceived. Ms Xu is not seeking to remit,suspend or vary any of the special conditions of her home detention. Ms Xu only hastwo special conditions of home detention. They relate to the requirements that sheattend and complete all counselling and programmes recommended by her probationofficer.[7] The requirement not to leave a home detention residence is a standardcondition of home detention, as set out in s 80C(2)(b) of the Act. That condition mustbe complied with unless one of the exceptions in s 80C(3) apply. The exceptionsenable a probation officer to approve a person to leave their home detention addressfor various reasons, such as seeking urgent medical or dental treatment or attendingapproved activities or programmes. The present circumstances do not appear to fallwithin the specified exceptions, which is presumably why this application has beenbrought.[8] Ms Xu is asking this Court to suspend or vary a standard condition of homedetention, not a special condition. Section 80F does not enable a Court to suspend orvary standard conditions of home detention. The standard conditions of homedetention are administered by Corrections. I note that Corrections do not oppose thisapplication. Obviously, however, Corrections' lack of opposition does not confer anyjurisdiction on the Court to grant the application. The Court's jurisdiction derives fromthe Act. For the reasons outlined, it is my view that this Court does not havejurisdiction to grant the application. Section 80F of the Act is simply not directed tothe current circumstances.[9] For completeness, I note that even if this Court did have jurisdiction under s80F (contrary to my view) I would not have been willing to grant the application.[10] Mr Simperingham submitted, on behalf of Ms Xu, that her uncle's death is arelevant "change in circumstances" and that allowing Ms Xu to attend her uncle'sfuneral in China would advance her rehabilitation and reintegration. That is because,he submitted, attending the funeral would help Ms Xu to maintain and strengthen herfamily relationships and allow her and her mother to properly grieve for the loss of heruncle. He submits that this would help decrease the risk of any future offending byMs Xu.[11] The death of Ms Xu's uncle in China is not, in my view, a relevant "change ofcircumstances". Homburg v R bears some similarities to this case.2 In that case theapplicant sought a reduction of his home detention sentence by 14 days, to enable himto leave New Zealand to attend the wedding of his niece in Thailand. White J heldthat there was no relevant change in circumstances. Rather, "all the applicantis seeking is the Court's indulgence to travel to Thailand for a family wedding which,if permitted, would effectively result in a variation of the sentence imposed byStevens J." Such comments are equally apt here.2 Homburg v R HC Auckland CRI-2007-092-006572, 22 April 2009.[12] Further, the argument that allowing Ms Xu to attend her uncle's funeral inChina would advance her rehabilitation and reintegration, because attending thefuneral would help her to maintain and strengthen her family relationships is extremelystrained, to say the least. I do not accept that allowing Ms Xu to attend her uncle'sfuneral would serve any material rehabilitative purpose.[13] The application is dismissed._____________________________Katz J