FANG v NEW ZEALAND POLICE [2020] NZHC 2761

FANG v NEW ZEALAND POLICE [2020] NZHC 2761 [21 October 2020]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECRI-2020-425-000018[2020] NZHC 2761BETWEEN LIANG FANGAppellantAND NEW ZEALAND POLICERespondentHearing: 19 October 2020Appearances: G P Tyrrell for AppellantR W Donnelly for RespondentJudgment: 21 October 2020JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 21 October 2020 at 3.00 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate21 October 2020Introduction[1] On 21 January 2020 at about 1.40 pm, Mr Fang was driving a tour bus on theGlenorchy-Queenstown Road. The bus had 22 passengers on board and was towing alarge trailer containing the passengers' luggage. Traffic was light, the road was dry,visibility was good and there was negligible wind. Mr Fang entered a corner at17 km/h over the recommended speed limit. The trailer started to fishtail, eventuallycausing Mr Fang to lose control of the bus. It rolled onto its side and slid down a hill,seriously injuring four of the passengers.[2] Mr Fang was charged with four counts of careless operation causing injury.1In a decision of 2 June 2020, Judge Strettell refused to grant him a discharge withoutconviction.2 The Judge instead convicted Mr Fang and sentenced him to 200 hours'community work, nine months' disqualification and reparation of $9,000.[3] Mr Fang now appeals the refusal to grant a discharge without conviction.Relevant background[4] Mr Fang is a Chinese national who has resided in New Zealand since June 2016under a work visa. He was employed as a tour bus driver by Awing Travel NZ Ltdand had been working for that company for one year at the time of the accident. TheGlenorchy-Queenstown Road is an undulating twisting road that follows the northernshore of Lake Wakatipu. It has a number of tight corners. The accident occurred whenMr Fang was descending into Wilsons Bay from Closeburn and approachedtwo corners of the downhill run. The first corner is a gentle curve and has a speedadvisory sign of 55 km/h. However, the second corner is a tight corner with a bend ofapproximately 90 degrees. It has a recommended speed limit of 45 km/h and issignposted accordingly.[5] As already noted, Mr Fang approached the second corner too fast and got intodifficulty, causing the bus to roll onto its side and slide 40 m down the hill. Duringthe rollover and slide, the occupants of the bus were thrown around the bus and someoccupants received serious and life threatening injuries. In particular:(a) a 10 year old girl had one of her hands amputated and the other armremoved above the elbow; and(b) a 39 year old female had her right arm amputated below the shoulder.Two other passengers suffered injuries from which they recovered. All otherpassengers of the bus were extremely upset and some received minor injuries.1 Land Transport Act 1998, s 38.2 Police v Fang [2020] NZDC 9906.[6] Mr Fang said that he had driven the road many times before. He told police heentered the corner at 50 km/h.District Court decision[7] Judge Strettell outlined the facts of the offending as well as Mr Fang'sexplanation, which was that the advisory speed limit was posted only 100 m from thecorner rather than 120 m as recommended by NZTA, meaning he failed to see the signuntil too late, and that while manoeuvring around the corner he suffered fromsunstrike. Despite that explanation, the Judge refused to accept the offending resultedfrom "momentary inattentiveness".3 He classified it instead as a "continuing episodewhere there are several issues which independently of one another were careless",including driving at a speed well above that recommended and failing to take thelikelihood of sunstrike into account.4[8] In assessing the gravity of the offending, Judge Strettell noted this was not anunknown route for Mr Fang. His level of responsibility as a professional driver witha bus load of people was high. The Judge intentionally did not take into account thenature of injuries sustained, recognising that the seriousness of injuries does notnecessarily correlate with the seriousness of the offending. He did take into accountthe post-accident actions of Mr Fang, including assisting injured persons, and hisotherwise "blameless record".5 The Judge nevertheless classified the gravity of theoffending as serious.[9] Turning to the consequences of conviction, Judge Strettell accepted thatMr Fang may be disqualified from holding his current visa and therefore deported, ormay not be able to gain residency status in the longer term. The Judge found these tobe potentially serious consequences, but ultimately considered the immigrationauthority was the appropriate body to make that decision having regard to theseriousness of the offending. He did not consider this was an appropriate case for adischarge without conviction and accordingly convicted Mr Fang on each of thefour charges.3 At [14].4 At [15].5 At [19].Principles on appeal[10] The Court may grant a discharge without conviction under s 106 of theSentencing Act 2002 only if it is satisfied, under s 107, that the direct and indirectconsequences of a conviction would be out of all proportion to the gravity of theoffending.6[11] 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.7 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.8Leave to adduce fresh evidence[12] Mr Tyrell, for Mr Fang, seeks to admit a further affidavit of Mr Fang dated1 October 2020 as fresh evidence on appeal. The affidavit attaches an email fromImmigration New Zealand advising that if Mr Fang's conviction is upheld he will berequired to leave the country upon completion of his sentence. This is clearly freshevidence. The affidavit also clarifies some points in Mr Fang's earlier affidavit of19 May 2020, and provides further information about NZTA signage guidance as wellas crash data for the relevant corner. Mr Tyrell accepts that this part of the furtheraffidavit is not fresh evidence, but submits it is independent and credible, and that it isin the interests of justice that it be admitted.[13] Pursuant to s 335 Criminal Procedure Act 2011, new evidence may be admittedon appeal if it is fresh, credible and cogent.9 Evidence that is not fresh maynevertheless be admitted if it would be in the interests of justice to do so.106 Sentencing Act 2002, s 137.7 H v R [2012] NZCA 198 at [35]–[36].8 Criminal Procedure Act 2011, s 232(2)(b) or (c); and Jackson v R [2016] NZCA 627, (2016)28 CRNZ 144 at [12].9 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [117]–[120]; and R v Bain [2004] 1 NZLR638 (CA) at [22] and [26].10 Lundy, above n 9, at [120].[14] The evidence in the affidavit regarding Mr Fang's immigration status shouldhis conviction be upheld is fresh, credible and cogent. Mr Tyrell accepts that the otherevidence in the affidavit is not fresh. However, the respondent does not take issuewith the admission of the affidavit in full and I accept that it is sufficiently credibleand cogent to be admitted in the interests of justice.SubmissionsAppellant's submissions[15] Mr Fang's appeal is brought on two grounds. The first is that the Judge erredin his assessment of the seriousness of the offending, describing it as "serious" whenit was properly classified as momentary inattention.11 The second is that theconsequences for Mr Fang, which have now crystallised as a requirement to leave thecountry, are sufficiently severe that the threshold for granting a discharge withoutconviction is met.[16] Mr Tyrell contends the Judge erred in assessing the offending as "a continuingepisode where there are several issues which independently of one another werecareless".12 While Mr Fang accepts he hit the corner at 17 km/h over the recommendedspeed, Mr Tyrell submits the Judge did not take into account his explanation that heonly saw the 45 km/h sign when he was very close to the corner. His carelessness infailing to see the sign is mitigated, in Mr Tyrell's submission, by the sign being tooclose to the corner and by its visibility being reduced by the similarly-coloured grassand flowers around it. The sunstrike as he came around the corner then underminedany opportunity Mr Fang had to recover. Mr Tyrell therefore categorises thecarelessness as "momentary inattention" rather than a continuing episode.[17] In regard to the submission that the sign was too close to the corner, Mr Tyrellrefers to the NZTA guidelines exhibited to Mr Fang's May affidavit. The guidelinesprovide that where two curves are in close proximity and the first has a greateradvisory speed than the second:11 Police v Fang, above n 2, at [16].12 At [15]. both curves warrant signing, and [where] there is insufficient distancebetween the curves for separate signing, then erect a PW – 22 REVERSECURVE sign displaying the curve advisory speed of Curve 2 in advance ofCurve 1.Mr Tyrell argues that if there was insufficient space to place the second sign at least120 m from the curve (as recommended by NZTA guidelines) then the advisory signfor the second curve should have been at the first corner.[18] Mr Tyrell submits that the gravity of Mr Fang's error was at the lowest end ofthe scale.[19] Since Judge Strettell's decision, Immigration New Zealand has notifiedMr Fang that he is to leave the country on completion of his community work if hisconviction is upheld. Mr Tyrell submits that consequence is disproportionate to the"degree of moral turpitude" involved in the offending.[20] Mr Tyrell recognises there is case law stating that judges should be slow tointervene in the statutory process of Immigration New Zealand, but submits this is acase where the Court should so intervene. He refers to Jeon v Police as an analogousexample.13 The appellant in Jeon drove through a stop sign at about 30–40 km/h andhit a truck, causing moderate injuries to the truck driver and serious injuries to theappellant's wife. Woodhouse J acknowledged that "as often is the case with drivingoffences, it was something which arose out of a moment's inadvertence".14 HisHonour determined that was a case where the s 106 discretion should be exercised andthe matter not be left for determination by immigration authorities.15[21] Mr Tyrell refers to several other cases where the Court has similarly granted adischarge without conviction due to the risk of deportation.16 He also notes Mr Fang'sexperience in the tour industry, and suggests there is a likelihood that a conviction willimpact on his chosen career in either New Zealand or China.13 Jeon v Police [2014] NZHC 66.14 At [12].15 At [20]–[23].16 Page v R [2020] NZHC 904; Sunda v Police [2019] NZHC 756; and Kumar v Police [2015] NZHC3293.Respondent's submissions[22] Mr Donnelly, for the respondent, accepts that a court's primary focus inassessing the gravity of offending must be on the culpability of the offender's actions.However, he submits that does not mean the consequences of those actions areirrelevant. In support, he cites Rickerby v Police, where Anderson J made thefollowing comment on the exercise of the discretion under the Land Transport Act1998 to not disqualify an offender based on special circumstances:17The legislature in referring to the circumstances of the offence plainly has inmind that the overriding consideration in these cases is the degree ofcarelessness, not the chance of the seriousness or otherwise of injury. This isnot to say that injury will always be irrelevant. There may be circumstanceswhere the degree of carelessness has been relatively minor but theconsequences so disastrous that for policy reasons and in order to mark socialconcern at careless driving because of the potential seriousness of accidentsthat discretion should be exercised against an appellant.[23] In any event, Mr Donnelly notes that Judge Strettell was clearly alive to theneed not to place too much weight on the injuries sustained, but he nevertheless foundthe offending to be serious.[24] Mr Donnelly submits that Mr Fang's claim that the sign could have been betterplaced is diminished by the fact that he knew the road well, having driven it manytimes before. He adds that Mr Fang should have been more cautious, particularlygiven he was a professional driver who had responsibility for 22 other people aboardhis vehicle. That responsibility heightened the seriousness of the carelessness, asfound by the Judge.18[25] Mr Donnelly accepts that given the updated evidence about Mr Fang'simmigration status, there is a real and appreciable risk that he will need to leaveNew Zealand if his conviction remains. However, he refers to Ho v R, where the Courtof Appeal found the requirement to leave New Zealand does not in itself amount to adisproportionate consequence of conviction.1917 Rickerby v Police HC Auckland AP263/95, 8 December 1995.18 Police v Fang, above n 2, at [17].19 Ho v R [2016] NZCA 229 at [15].[26] In regard to employment consequences, Mr Donnelly submits there is noevidence or detail in regard to this, and contends that a generalised difficulty in careerprospects is insufficient to provide a firm basis for a discharge without conviction.[27] Overall, he submits the consequences of conviction are not out of all proportionto the gravity of the offending.AnalysisGravity of the offending[28] The first step in considering whether to impose a discharge without convictionis to determine the gravity of the offending. Mr Tyrell's primary submission on thispoint is that while Mr Fang accepts he entered the corner at 17 km/h over therecommended speed, this was incorrectly described by the District Court Judge as "acontinuing episode where there are several issues which independently of one anotherwere careless".20 In reality there was fleeting carelessness, which was mitigated in thecircumstances by the position of the sign in the surrounds.[29] However, when considering the evidence, I do not see this as in the samecategory as cases involving momentary inattention on the road. As Mr Fang'sevidence confirms, the first bend was signposted as 55 km/h. From the map whichMr Fang has provided in evidence, the second bend is only some 200 m from the firstbend. Even if the second advisory sign was only 100 m from the second bend, ratherthan the recommended 120 m, it seems Mr Fang either travelled through the firstcorner too fast, or failed to slow down adequately at the point he saw the second sign.It is not clear how the difference of 20 m in the sign's placement from the corner couldhave materially contributed to the accident, when he should have already beentravelling at a significantly reduced speed after negotiating the first bend.[30] It is also unclear how sunstrike could have played a part in the accident, givenit was the height of summer and early afternoon when the accident occurred. Sunstrikeis typically experienced in the morning and evening, particularly in winter months20 Police v Fang, above n 2, at [15].when the sun is at a low angle. In any event, Mr Tyrrell conceded that sunstrike wasno longer pursued as a contributing factor to the accident itself. Rather, if Mr Fangdid experience sunstrike, it was at a point where he had already lost control of thevehicle.[31] Similarly, Mr Fang's explanation that the sign was the same colour as the grassor flowers around it makes little difference. He acknowledged that he saw the sign,and it is clear he either failed to slow down to the appropriate speed or was going atan excessive speed prior to seeing it so that he was unable to slow down.[32] In my view, nothing in the further evidence admitted really alters the view thatMr Fang was travelling too fast on a road which he knew to be winding, and where,travelling with a large vehicle and trailer, he needed to be particularly careful with hisdriving.[33] The gravity of the offending must also be weighed in light of the responsibilityon Mr Fang as a professional driver with a bus carrying 22 passengers. WhileMr Tyrrell resisted the suggestion that this was a relevant factor in assessing thegravity of the offending, I disagree. The standard is what a reasonably prudent driverwould do in all the known circumstances. Here, the fact that he had a large vehiclewith an attached trailer, and a large number of passengers inside, are factors which areasonably prudent driver would take into account when negotiating this section ofroad. While the negligent course of conduct could probably be measured in a numberof seconds rather than minutes, it was, in my assessment, more than a momentary lapseof attention causing an accident. It was a relatively serious departure from the standardof care expected.Consequences of conviction[34] Judge Strettell considered the risk of deportation was a potential outcome thatwas "certainly, on the papers" faced by Mr Fang.21 Since his judgment, ImmigrationNew Zealand has informed Mr Fang that if his conviction is upheld by this Court, hewill be required to leave the country upon completion of his community work. I accept21 At [22].that outcome is now highly likely to occur, subject to a formal decision by ImmigrationNew Zealand and Mr Fang's rights of appeal.[35] Mr Fang also says the Court should take into account the more general impactson his chosen career as a tour operator should he return to China. He says he was ateam leader taking tours internationally for 10 years in China and he says a convictionwould "definitely affect me to lead a team to enter many other countries". He isconcerned that a conviction would prevent him from having a similar job again,because it could stop him travelling to overseas countries, or at the very least, wouldrequire him to go through the process of having to apply for a visa or otherwise explainthe circumstances of his conviction on each occasion.[36] However, I accept that this is generalised evidence which indicates thatwhether he is in New Zealand or China, there will be attendant difficulties in obtainingthe right to travel to other countries with a conviction. I cannot conclude from thisthat it would be likely to prevent Mr Fang from working in the tourism industry.Proportionality[37] The final stage of the test for a discharge without conviction is to determinewhether the consequences of conviction would be out of all proportion to the gravityof offending.[38] Mr Tyrell accepts that the courts have generally found it appropriate for theimpact of conviction upon immigration status to be determined by ImmigrationNew Zealand rather than by the court.22 As Asher J said in Zhang v Ministry ofEconomic Development:23There is nothing that requires the courts to intervene to try and impose theirperception of what the right immigration consequences should be. That is bestleft to the immigration authorities. But a Court's assessment of culpability inthe sentencing exercise may assist those authorities. And there will always beoccasions where in a finely balanced case a discharge may be warranted onthese types of grounds: R v Hemard.24 The case for discharge may not be so22 See for example R v Foox [2000] 1 NZLR 641 (CA) at [39]; A (CA747/10) v R [2011] NZCA 328at [30]; and Ho, above n 19, at [15].23 Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011 at[14].24 R v Hemard HC Christchurch T30/03, 11 April 2003 at [16].strong where the details of the offending will be known and closely examinedby the relevant authority in any event, than where the query will be only as toprior convictions, for instance in an application for professional certification.[39] Courts tend to be more reluctant to intervene when the outcome from theimmigration authority cannot reasonably be predicted.25 However, that is not to saythat a court must or should intervene when it is reasonably certain that deportation willoccur.[40] In Mr Fang's case, deportation is a serious consequence that appears almostcertain to occur. I do not overlook the distressing impact of that outcome on Mr Fang.However, he is a single man, with family back in China, and I do not see the impactof returning to his homeland being as great as in some other cases which come beforethis Court. Furthermore, he could have no certainty that he would obtain a furtherwork visa in New Zealand, so a return to China must always have been a possibilityshould his visa not be renewed.[41] Overall, I have reached a view that this is not a case where the gravity of theoffending is so low that this Court should usurp the function of ImmigrationNew Zealand and make a determination as to whether deportation is appropriate.Mr Fang's carelessness, in the face of the significant responsibility of driving a tourbus, was relatively serious.[42] I accept that the consequences of conviction for him are likely to go beyondthat of other offenders. I also accept that this was an offence of carelessness ratherthan deliberate wrongdoing, and Mr Fang has otherwise led a positive and offence-freelife in New Zealand. However, the balancing of those matters is for ImmigrationNew Zealand including, potentially, through an appeal process. While theconsequences for Mr Fang will be harsh compared with other offenders, I do notconsider that they are out of all proportion to the gravity of the offending.25 Rahim v R [2018] NZCA 182 at [29]; Jeon, above n 13; and Kumar, above n 16.Conclusion[43] The appeal is dismissed.Solicitors:G P Tyrrell, Barrister, ChristchurchPreston Russell Law, Invercargill