LI v NEW ZEALAND POLICE [2023] NZHC 816

LI v NEW ZEALAND POLICE [2023] NZHC 816 [18 April 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-000476[2023] NZHC 816BETWEEN LI YICHENGAppellantAND NEW ZEALAND POLICERespondentHearing: 3 April 2023Appearances: T A Simmonds for AppellantB Archibald for RespondentJudgment: 18 April 2023JUDGMENT OF ANDREW JThis judgment was delivered by Justice Andrewon 18 April 2023 at 4.00 pmpursuant to r 11.5 of the High Court RulesRegistrar / Deputy RegistrarDate .Introduction[1] Mr Li Yicheng pleaded guilty to two charges of robbery1 and one charge ofattempted robbery.2 In the Auckland District Court, Judge de Ridder declined hisapplication for discharge without conviction. Mr Li was convicted and sentenced to200 hours' community work and 12 months' supervision.3[2] Mr Li now appeals against the Judge's refusal to discharge him withoutconviction. He contends that the Judge overstated the overall gravity of the offendingand understated the likely consequences of a conviction, namely the immigrationconsequences. He says that the Judge was plainly wrong to conclude that the likelyconsequences of conviction were not out of all proportion to the gravity of theoffending.[3] In opposing the appeal, the Police say there was no error in the Judge'sapproach.The offending[4] Mr Li's offending relates to three instances of a similar nature where he robbed,or attempted to rob, young women of their shoes. On 4 September 2020, Mr Lifollowed the first complainant into her apartment building in Auckland Central. Hewas wearing a scarf to hide his face. He followed her into the elevator, and whenasked what level he was going to, he replied "the same as you". Mr Li proceeded totell the complainant "I like your feet; I really like your feet", before dropping to hisknees and wrapping his arms around her knees. Mr Li grabbed the complainant's leftshoe and started to take it off. The complainant struggled to get free from Mr Li's holdand he managed to remove her right shoe. When the elevator returned to ground level,Mr Li exited the elevator and left the building with both of the complainant's shoes.[5] The second incident occurred nine months later on 2 June 2021. Mr Li wasfollowing the second complainant from a distance as she was walking home in theearly evening in central Auckland. When the complainant entered her apartmentbuilding, Mr Li "tailgated" her into the building with his hood up and a medical mask1 Crimes Act 1961, s 234, maximum penalty 10 years imprisonment.2 Crimes Act 1961, ss 234 and 72, maximum penalty five years imprisonment.3 Police v Li Yicheng [2022] NZDC 22962.on. He followed her up the elevator and got off on the same level as her. He thenviolently tackled the complainant to the ground and ripped off one of her shoes. Mr Litried to flee but was confronted by other residents of the building who were alerted bythe complainant's screaming. Mr Li returned the second complainant's shoes beforeleaving the building.[6] The final incident occurred just 10 minutes after the second incident. Mr Lisimilarly tailgated the third complainant into her apartment building in centralAuckland. Once inside, he removed his glasses and put on a medical mask. Mr Lifollowed the complainant into the stairwell, grabbed her arm and pulled her towardshim. The complainant tried to protect herself by crouching down and holding on to anearby door handle. However, Mr Li eventually managed to pull her to the ground.He grabbed and started to pull on her left ankle. Despite the complainant kicking herlegs in an attempt to get free, Mr Li managed to remove her left shoe and ran from thearea.[7] What emerges from the additional material before the Court is that Mr Li'soffending stems from a shoe fetish which he says he developed when he was around10 years old. Mr Li attacked these women with the intention of stealing their shoes.Legal principlesDischarge without conviction[8] If a person pleads guilty to an offence, the court may, instead of imposing asentence, direct that the offender be discharged without conviction.4 The Court mustnot discharge an offender without conviction unless it is satisfied that the direct andindirect consequences of a conviction would be out of all proportion to the gravity ofthe offence.5[9] In Z (CA447/12) v R, the Court of Appeal set out a three-stage test to be appliedby the Court when considering applications for a discharge without conviction.6Firstly, when considering the gravity of the offence, the Court should consider all4 Sentencing Act 2002, s 106.5 Sentencing Act 2002, s 107.6 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [27].aggravating and mitigating factors relating to the offence and the offender. The Courtshould then consider the direct and indirect consequences of conviction and considerwhether those consequences are out of all proportion to the gravity of the offence.Finally, if the Court determines that they are out of all proportion, it must still considerwhether it should exercise its residual discretion to grant a discharge, noting that it willbe rare for the Court to refuse a discharge in such circumstances.Appeal[10] An appeal against a refusal to discharge without conviction is an appeal againstboth a conviction and a sentence.7[11] To the extent that the appeal relates to the court's weighing of consequences ofconviction against gravity of offending, it proceeds by way of rehearing. The appellatecourt makes its own assessment of whether the criteria for discharge withoutconviction are met.8 Unless satisfied that a miscarriage of justice has occurred, thisCourt must dismiss Mr Li's appeal.9 In the context of a discharge without conviction,a miscarriage of justice means a material error or that the Judge erred in applying theprinciples for discharging an offender without conviction.10District Court decision[12] Judge de Ridder began the assessment of the gravity of Mr Li's offending withthe features of the offending itself. His Honour described it as "repeated deliberateoffending".11 The Judge held that the submission from Mr Li that he "approached"the complainants of his offending significantly downplayed what he did; he effectivelystalked vulnerable young women or laid in wait for them. His Honour also referred tothe use of disguises to hide his identity and the significant force used to get the shoesoff the women. In Judge de Ridder's view, Mr Li used continued and sustainedviolence to achieve his purpose in respect of two of the women; he violently tackled7 Jackson v R [2016] NZCA 627; Ovtcharenko v Police [2017] NZCA 65 at [5].8 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141; R v Hughes[2008] NZCA 546, [2009] 3 NZLR 222 at [11].9 Criminal Procedure Act 2011, s 232.10 Jackson v R, above n 7, at [12].11 Police v Li Yicheng, above n 3, at [13].one and pulled the other to the ground. He therefore categorised the offending as "veryserious".12[13] In considering the personal factors of Mr Li, Judge de Ridder noted that he hadno prior convictions, had pleaded guilty at an early opportunity and had paid reparationof $3,000 to two of the complainants. He intended to do the same for the third. Mr Lihad also written apology letters, engaged in voluntary work and sought counselling.The psychiatric report had assessed him as being unlikely to commit further offending.As a result of these positive factors, Judge de Ridder reduced the overall gravity of theoffence to be "moderately very serious".13[14] The Judge then turned to the consequences of conviction, in particular potentialemployment, the stigma of a conviction and immigration difficulties. Judge de Ridderconsidered Mr Li's future employment concerns to be a generic expression ofconcern.14 Despite noting that the profession associated with the degree Mr Li ispresently studying for is controlled by a professional body, Judge de Ridder consideredthat it is for that body to determine the consequences of conviction and there was nofurther information about difficulties Mr Li may face. The Judge also considered thatthe asserted stigma was no more than the ordinary consequences of conviction.15[15] Judge de Ridder considered the key issue to be Mr Li's immigration status. Atthe time of sentencing Mr Li was on an interim extension of his student visa, theoriginal having expired in March 2022. The Judge noted that such an extensionrequired meeting a good character test and would not normally be granted to theapplicant if convicted of an offence with a maximum sentence of three months'imprisonment or more.16 Mr Li advised the Court that the immigration authoritiesalready had concerns about his character, which the Judge assumed was the result ofthis offending.17 Judge de Ridder therefore accepted that Mr Li might face difficultiesin getting an extension of his student visa.1812 Police v Li Yicheng, above n 3, at [14].13 Police v Li Yicheng, above n 3, at [15].14 Police v Li Yicheng, above n 3, at [16].15 Police v Li Yicheng, above n 3, at [18].16 Police v Li Yicheng, above n 3, at [20].17 Police v Li Yicheng, above n 3, at [19].18 Police v Li Yicheng, above n 3, at [21].[16] Judge de Ridder considered the view of Mr Lal (an immigration expert) thatMr Li would be unlikely to get a character waiver or his visa renewed. However, henoted that there was no other information provided to support those claims.19Ultimately, after referring to two recent Court of Appeal cases that deal withimmigration consequences in this context,20 Judge de Ridder considered that anyaction by the immigration authorities would result from the offending itself and notfrom a conviction.21 This was particularly so where the immigration service wasalready aware of Mr Li's offending and had already raised character concerns basedon that.[17] Judge de Ridder concluded that given the serious nature of the offending hewas not satisfied that a conviction was out of all proportion to the gravity of theoffence. Therefore, the application for a discharge without conviction wasdismissed.22Analysis and decisionIssue (a) – The offending itself[18] Mr Simmonds, on behalf of Mr Li, submits that the Judge erred in assessingthe offending itself as "very serious". He also challenges the Judge's determinationthat the overall gravity of the offending was "moderately very serious" once allpersonal mitigating factors were taken into account. While it was acknowledged thatthe offending was not trivial and that harm was caused to the complainants,Mr Simmonds submits that the context of the offending is most important. Hecontends that the offending was not motivated by a desire to sexually or physicallyassault the victims, but rather by a most unfortunate fetish for women's shoes.Mr Simmonds submits that the appellant's interactions with the three victims focusedon his efforts to secure their shoes.[19] On this basis, Mr Simmonds submits that Judge de Ridder erred in assessingthe offending on its own as being very serious for the following reasons:19 Police v Li Yicheng, above n 3, at [28].20 Sok v R [2021] NZCA 252; Zhu v R [2021] NZCA 254.21 Police v Li Yicheng, above n 3, at [29].22 Police v Li Yicheng, above n 3, at [30].(a) There was no evidential basis for concluding that the appellant"effectively stalked" or laid in wait for the victims;(b) The Judge was wrong to reject the appellant's categorisation of theoffending as being opportunistic rather than carefully planned, and inconcluding that Mr Li had significantly downplayed his actions;(c) The Judge was wrong to describe the appellant as having "useddisguises" in circumstances where he wore a medical mask during twoof the incidents and a scarf for the other;(d) The Judge was wrong to categorise the offending as involvingsignificant and serious violence against the three victims.[20] The starting point in assessing the gravity of Mr Li's offending is the featuresof the particular offending.23 As the Court of Appeal held in J v R,24 an assessment ofgravity is informed by the culpable conduct, to be determined on an assessment of thefacts, rather than the nature of the charge.[21] As noted, Mr Li faced three charges. The maximum penalty upon convictionfor robbery is a term of ten years imprisonment.25 On the attempted robbery charge,the maximum sentence is five years imprisonment. The charge of robbery imports anelement of violence. Robbery is defined as "theft accompanied by violence or threatsof violence".26 Mr Li pleaded guilty to the three charges and accepted the summaryof facts. That summary records Mr Li wrapping his arms around the firstcomplainant's legs and "violently" tackling the second complainant to the ground. Inrespect of the third complainant, Mr Li kept pulling her, by grabbing her arm, until shefell to the ground. These facts establish serious offending.[22] It may be that Mr Li's offending was motivated by his shoe fetish rather thanany desire to physically or sexually assault the victims. I agree with the submissionof Mr Simmonds that this is a relevant factor. However, it should not be overstated.Regardless of his motivations, Mr Li assaulted each victim. Importantly, the victims23 See Taylor v R [2018] NZHC 688 at [46]; Babich v R [2018] NZHC 2324 at [7].24 J v R [2021] NZCA 690 at [36].25 Crimes Act 1961, s 234(2).26 Crimes Act 1961, s 234(1).were not to know that he was motivated solely by a desire to take their shoes. Theywould likely have apprehended far worse consequences. Their victim impactstatements refer to the emotional and psychological harm done to them and it is clearthat they feel strongly about the outcome of these proceedings. It is clear that Mr Litargeted vulnerable young women on their own in the evening and used force to stealtheir shoes. Those aggravating factors are not in dispute.[23] I reject the submission that Mr Li did not stalk the complainants or lay in waitfor them. On all three occasions Mr Li followed the complainants into their apartmentbuildings and then into either the elevator or stairwell. Mr Li was waiting outside thefirst complainant's apartment building prior to the first incident. In regard to thesecond incident, as made clear from the agreed summary of facts, Mr Li followed thecomplainant from a distance away down the street before tailgating her into herapartment building. The complainant had to use a key card to enter the building. MrLi similarly tailgated the third complainant into her apartment building. At Mr Li'srestorative justice conference, he admitted to following the three complaints.27 Thisis undoubtedly, as identified by Judge de Ridder, an aggravating feature of theoffending.[24] These facts also denote a degree of premeditation. I note that in the restorativejustice conference report Mr Li admitted that prior to the offending porn no longersatisfied his sexual desire and something more "exciting" was needed. He sought outyoung, female victims. The fact that there are three almost identical incidents confirmsthat the offending was not simply "opportunistic". At least some degree of planningwas involved. Premeditation is a further aggravating factor.[25] I also reject the submission that Judge de Ridder erred in concluding thatMr Li had significantly downplayed his actions. His Honour was simply commenting,as he was entitled to do, on the submission made on Mr Li's behalf that he simply"approached" the complainants. His actions were far more serious than that.[26] I also find that Judge de Ridder did not err in concluding that the appellant useddisguises. As set out in the Police summary of facts, the scarf was clearly used duringthe first incident to hide Mr Li's face. In the second incident, Mr Li pulled his hood27 This is clear from the Restorative Justice Conference Report dated 29 May 2022.up and was wearing a medical mask. In the third incident, he removed his glasses andput on a medical mask. I accept that the offending all took place during the COVID-19 lockdown and masks were, of course, commonplace. However, it is reasonable toinfer here that all these items were used with the intent of concealing Mr Li's identity.These can also be counted as further aggravating factors.[27] I find that Judge de Ridder did correctly identify the relevant factors in hisinitial assessment of the gravity of the offending. There is, however, real force inMr Simmonds' submission that viewed in context and having regard to the fact thatnone of the victims were physically injured, it is an overstatement to describe thefeatures of the offending itself as "very serious". I acknowledge and agree with thelearned Judge that this was repeated, deliberate offending, and that violence wasinvolved. However, the offending was not at the most severe end of the spectrum. Inmy view, this was serious offending of its kind, but not "very serious". In concludingthat it was very serious, the Judge was in error.Issue (b) – Overall gravity assessment[28] There are undoubtedly multiple mitigating factors arising from Mr Li'spersonal circumstances that reduce the overall gravity of the offending. These are notin dispute; I agree with Mr Simmonds that they are compelling. Mr Li has a record ofgood character and no previous convictions, has offered apologies and reparation tothe complaints and is seeking counselling to address the underlying issues associatedwith his offending. He is also young, and the offending was committed in the contextof the 2020 and 2021 Covid-19 lockdowns when Mr Li was isolated from family andsuffering from depression. The psychiatric report prepared has assessed him as beingunlikely to commit further offending.[29] In assessing all of these factors, I conclude the overall gravity of the offenceshould be assessed as moderately serious. The Judge therefore did err in overstatingthe gravity of the offending by reaching the conclusion that it was "moderately veryserious". The penalty imposed by the Judge is consistent with my determination.28However, whether there was ultimately a material error is an issue I now address.28 See [1] above where I note that Mr Li was convicted and sentenced to 200 hours' community workand 12 months' supervision.Consequences of conviction[30] The second stage of the test requires the Court to assess the direct and indirectconsequences of a conviction.29 Here, the particular consequences relied upon are theimmigration consequences that are likely to result. Mr Simmonds submits that Judgede Ridder did not have proper regard to these consequences, and in particular failed toconsider Mr Li's ability to obtain a work visa (as opposed to a student visa). He furthersubmits that Judge de Ridder was incorrect to conclude that any immigrationconsequences would result from Mr Li's offending as opposed to convictions beingentered.Additional evidence[31] In support of these submissions, Mr Simmonds seeks to adduce additionalevidence in the form of an affidavit from Mr Simon Laurent, an immigration lawspecialist. This is for the purpose of amplifying the evidence that was before theDistrict Court as to the likely immigration consequences that will result from Mr Lireceiving convictions.[32] The general test for when fresh evidence can be adduced on appeal is as set outin R v Bain. Evidence must be sufficiently fresh and credible, and it must be in theinterests of justice to admit the evidence.30 Ordinarily evidence which could, withreasonable diligence, have been called at the trial, or in this case at the sentencing, willnot qualify as sufficiently fresh.31 In Lundy v R, the Privy Council reinforced that theoverriding test in appeals is that "new evidence should be admitted if the interests ofjustice require it."32[33] In the present case, I consider that the affidavit should be admitted as evidence.Despite the fact that the evidence could conceivably have been prepared prior to thesentencing hearing, the evidence is clearly relevant to a live issue in this appeal. Itseeks to expand on the evidence that was before Judge de Ridder. This is particularlyrelevant given his Honour's comments that the expert immigration evidence before29 Z CA447/12) v R, above n 6, at [27].30 R v Bain [2004] 1 NZLR 638 (CA) at [22], approved in R v Bain [2007] UKPC 33, (2007) 23CRNZ 71.31 R v Bain, above n 30, at [22].32 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [119].him was not supported by any additional information.33 I consider that it is in theoverall interests of justice to admit the additional affidavit as evidence. I note that therespondent is not opposed to the introduction of this material.[34] I note also that Mr Li's immigration status has changed since he appeared inthe District Court. At that time the focus of his submissions was the immigrationconsequences on his ability to renew his student visa. However, since then, Mr Li'sstudent visa has been renewed to enable him to complete his university degree. Inthose circumstances, the argument now being made is the potential impact of aconviction on the ability of Mr Li to obtain a post-study work visa. Mr Laurent'sevidence expressly addresses that issue and I find it is of "substantial help" indetermining these proceedings.34Immigration consequences[35] The Court of Appeal in Sok v R provided guidance on how immigrationconsequences should be considered in the context of an application for dischargewithout conviction:35[45] The Sentencing Act does not treat immigration consequences differentlyfrom others, but it is necessary to recognise that those consequences are foundin, or authorised by, immigration legislation. As this Court said in Ho,Parliament has decided a foreign national enjoys no general right to stay inNew Zealand. The legislation authorises the Minister to impose characterrequirements on those seeking visas to live in New Zealand, and itcontemplates that the commission of a qualifying offence may lead todeportation. It establishes or authorises institutions and processes to assess thecircumstances and decide what is to be done in any given case. Thoseprocesses are intended to accommodate New Zealand's internationalobligations. In this setting, close attention must sometimes be given tocausation.[47] It is usually the case that immigration processes must be commenced,and adverse decisions made by immigration authorities, before a person whohas committed an offence is compelled to leave the country. A court mayaccept that during a given process the person will be heard on mitigating andpersonal circumstances and the outcome will be determined by thosecircumstances rather than the fact of conviction. The offending is a fact thathas been admitted or proved and the Court's view of its gravity will be a matter33 Police v Li Yicheng, above n 3, at [28].34 Evidence Act 2006, s 25(1).35 Sok v R, above n 20 (footnotes omitted).of record. In such cases courts usually find the outcome a consequence of theoffending behaviour rather than the conviction.[36] The Court of Appeal went on to say in Zhu v R:36The Court has recently considered the question of causation in Sok v R,concluding that a conviction may be an indirect cause of a consequence thatwill happen only in the event that a third party, such as an immigration officer,makes a decision in which the conviction is relevant. Such a causal connectionmay suffice under s 107 of the Sentencing Act. However, it is not alwaysenough to show that but for conviction a given consequence would nothappen. Causation is a question of substance and degree, requiring judicialjudgement. Where satisfied that immigration decision-makers will considerthe circumstances that are said to justify a discharge, including the gravity ofthe offending and the offender's personal circumstances, courts usually reasonthat the outcome is a consequence of the offending, rather than the conviction.[37] I will address only the issue of the impact of a conviction on the ability of MrLi to obtain a post-study work visa. The impact on any ability to renew his studentvisa is no longer a live issue.[38] I accept that the entry of convictions may well have a detrimental effect onMr Li's ability to obtain a post-study work visa. I also accept that if he is declinedsuch a visa, then any deportation consequences will likely be significant. It is clearfrom the evidence of Mr Laurent that the existence of a conviction will determine whatprocess Immigration New Zealand 37will follow in relation to an application for a post-study work visa. If someone is discharged without conviction, no character waiverprocess can be applied at all. However, the test to apply is whether those consequenceswill be "out of all proportion" to the gravity of the offending, which I have identifiedas moderately serious.[39] I find that the consequences of a conviction in this case, albeit significant,would not be out of all proportion to the gravity of the offending. That is so for thefollowing reasons:(a) As a student visa holder, Mr Li is presently liable for deportation unders 157 of the Immigration Act 2009 regardless of whether he isconvicted. Having said that, and as testified by Mr Laurent, it seems36 Zhu v R, above n 20, at [25] (footnotes omitted).37 INZ.unlikely that Mr Li would be served with a deportation liability noticebefore the expiry of his student visa in March 2024.38(b) While I accept Mr Laurent's evidence that if Mr Li is convicted hischances of securing a character waiver for the grant of a post-studywork visa may be low, these matters are ultimately for INz to determineand in this case there are some compelling circumstances which mightjustify a different approach.39 Ultimately, of course, INZ must stillexercise its discretion and cannot automatically decline an applicationfor a character waiver.(c) In any event, Mr Li is a foreign national and enjoys no general right tostay in New Zealand.40 In contrast to other cases where immigrationconsequences have been held to be out of all proportion to the gravityof the offending, Mr Li does not have a close connection with NewZealand, has no family here and has only been in New Zealand for fouryears.41(d) As acknowledged above, any deportation consequences will besignificant. I also accept that Mr Li now has tenuous links with Chinaand Malaysia and that his four years in New Zealand is not aninsignificant period of time, given his age. However, all these factorsand the potential impact of the Malaysia My Second Home38 Furthermore, as recently recognised in Truong v R [2023] NZCA 97, the issue of a deportationliability notice is not automatic, where an individual has the opportunity to make submissions tothe Minister on whether deportation should proceed before a deportation liability notice is served.The Court of Appeal considered this fact to be "significant" at [52], and the appeal was dismissedon the basis that the Minister and Tribunal are better placed than the Court to assess an individual'sgrounds for not being deported.39 I note that Mr Li is a full-time undergraduate student majoring in accountancy at AucklandUniversity. He has an impressive academic record. He has clearly taken significant steps to tryand address his offending and the reasons for it.40 Sok v R, above n 20, at [45].41 See, for example, Yu v Police [2021] NZHC 3000, a case where the appellant was convicted of acharge of driving with excess breath alcohol. The appellant had lived her entire adult life in NewZealand, had a stable relationship with a permanent resident and her daughter was born in NewZealand. Deportation was an inevitable consequence of conviction and was therefore out of allproportion to the gravity of the offence. See also Bong v R [2020] NZCA 94, where the appellantwas found guilty of a charge of male assaults female. He was a Korean national who had lived inNew Zealand for eight years and had a wife and three children in New Zealand. His offendingwas assessed as "very low level".programme42 (if at all relevant) can be addressed by the relevantimmigration authorities as part of their overall assessment of Mr Li'sfuture immigration status. The institutions and processes under theImmigration Act 2009 do, of course, contain mechanisms foraddressing New Zealand's international legal obligations, includinghuman rights commitments.43Conclusion and result[40] I find that the District Court Judge erred in his assessment of the overall gravityof the offending. I find that it should be characterised as "moderately serious" ratherthan "moderately very serious". However, there was no error in the ultimateconclusion reached by the Judge that the consequences of the convictions, namely theimmigration consequences, are not out of all proportion to the gravity of the offending.In my reassessment, having regard to the further evidence before the Court, I reach thesame ultimate conclusion.[41] Accordingly, the appeal is dismissed.__________________________Andrew J42 Addressed by Mr Laurent in his affidavit of 20 March 2023.43 Sok v R, above n 20, at [45].