JO v NEW ZEALAND POLICE [2019] NZHC 1369

JO v NEW ZEALAND POLICE [2019] NZHC 1369 [17 June 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI 2019-404-000106[2019] NZHC 1369BETWEEN MINYOUNG JOAppellantAND NEW ZEALAND POLICERespondentHearing: 17 June 2019Appearances: J Yi for AppellantR Ching for RespondentJudgment: 17 June 2019ORAL JUDGMENT OF VAN BOHEMEN JSolicitors:J Yi, Barrister, AucklandMeredith Connell, AucklandIntroduction[1] On 29 January 2019, the appellant, Minyoung Jo, was convicted in the DistrictCourt in Auckland after pleading guilty to one charge of injuring with intent to injure1and one charge of intimidation.2 Judge Thomas imposed a sentence of reparationstotalling $750.00 to the two victims with no further penalty. Judge Thomas declinedMs Jo's application for a discharge without conviction.3[2] Ms Jo appeals the refusal to discharge her without conviction.[3] The grounds of Ms Jo's appeal are that the District Court Judge made errors inassessing the gravity of the offending and in placing insufficient weight on theconsequences of the convictions for Ms Jo, particularly with regard to Ms Jo'semployment and her ability to remain in New Zealand. As a result, the Judge erred incarrying out the disproportionality test required under s 107 of the Sentencing Act2002.[4] In support of her appeal, Ms Jo seeks leave to admit new evidence in the formof an affidavit affirmed on 12 June 2019 by Jessie Kexin Tang, Ms Jo's employer.[5] The police opposed Ms Jo's application and oppose her appeal. They alsooppose the admission of the affirmation by Ms Tang.The facts[6] In the early hours of 17 March 2018, Ms Jo, accompanied by a friend, letherself into the Auckland apartment of her former partner, Hyeongkeun Park. Ms Johad separated some time earlier from Mr Park because he had begun a relationshipwith another woman, Gahee Song. Ms Jo had left some belongings at the address atWakefield Street and she had retained a key for the apartment. Ms Jo gave no noticeto Mr Park of her intention to visit.1 Crimes Act 1961, s189(2). Maximum penalty of 5 years' imprisonment.2 Summary Offences Act 1981, s 21(a). Maximum penalty of 3 months' imprisonment or a fine notexceeding $2,000.3 New Zealand Police v Jo [2019] NZDC 159.[7] Upon entering, Ms Jo went straight to the bedroom where she found Mr Parkin bed with Ms Song. Ms Jo "essentially exploded" in the words of Judge Thomas.She grabbed Ms Song's hair, dragging her from the bed to the floor. A scuffle ensued,during which Ms Jo bit Ms Song's arm three times, causing the skin to break. Ms Jo'sfriend dispossessed Ms Song of her phone, preventing her from calling the police. Thescuffle ended when Mr Park separated the parties.[8] Nine days later, at 11 am on 26 March 2018, Ms Jo sent Mr Park a text messagein Korean which said:If you do not want to see the blood again from that crazy bitch who you loveto death, then do not let her in the house. Do not know when I will be thereagain.[9] The following day, at 8.42 am on 27 March 2018, Ms Jo sent a further textmessage, also in Korean, to Mr Park saying:want to kill you and that woman many times throughout a day. Or makedisabled on arm or a leg [and] make [you] suffer forever. I have so much painin my heart. I cannot even breathe well, do not even know what to do.[10] As a result of the assault, Ms Song suffered bruising under her left eye, bitemarks on her left arm, minor bruising to her right arm and pain to her stomach andshoulders.[11] Ms Jo pleaded guilty to the charges of injuring with intent to injure andintimidation. She subsequently applied for a discharge without conviction pursuant tos 106 of the Sentencing Act 2002 but noted this application was refused by JudgeThomas.District Court decision[12] In considering Ms Jo's application, Judge Thomas applied the Court ofAppeal's decision in Z v R which sets out the steps to be followed when consideringwhether to grant an application for discharge without conviction.4 This entailed anassessment of the gravity of the offending, the identification of the consequences of4 Z v R [2012] NZCA 599, [2013] NZAR 142.the convictions, and an assessment of whether the consequences of the convictionwere out of all proportion to the gravity of the offending.5[13] Judge Thomas assessed the gravity of the offending as being at the low end ofmoderate. He reached that conclusion after considering the seriousness of the offenceand the particular circumstances of Ms Jo's offending as well as the factors thatreduced Ms Jo's blameworthiness.[14] Judge Thomas identified the consequences of the offending as including a riskthat the appellant would lose her employment, and that she would be unable to obtainresidency and remain in New Zealand. The Judge accepted that if Ms Jo wereconvicted it would be harder for Ms Jo to satisfy her employers that she would be agood employee and harder for Ms Jo to satisfy immigration officials that she shouldbe granted residency in New Zealand. However, the Judge did not consider that theseconsequences were out of all proportion to the gravity of the offending. AccordinglyJudge Thomas considered he must decline Ms Jo's application for a discharge withoutconviction.Submissions for Ms Jo[15] Mr Yi for Ms Jo says the Judge erred when conducting the balancing test unders 107 by failing to place sufficient weight on the relevant mitigating factors. Mr Yialso submits that the Judge erred in placing the offending at the low end of moderateand says the offending is more appropriately classified as being of low gravity,especially when considering the overall factual matrix, early guilty pleas, theexpression of remorse, the undertaking of a violence programme, the previous lack ofconvictions, and prior good character.[16] Mr Yi also seeks leave to admit new evidence from Ms Jo's employer,Ms Tang, which, he submits, should lead the Court to find that there is a real andappreciable risk that the convictions would have the consequence of Ms Jo losing heremployment and that the loss of her employment would lead to the loss of heropportunity to apply for her residence visa and, as a result, Ms Jo would have to return5 At [21].to the Republic of Korea. As such, Mr Yi submits that the consequences of theconviction would be out of all proportion to the gravity of the offending.Submissions for NZ Police[17] The police oppose the admission of Ms Tang's affidavit which, Ms Ching forthe police, says lacks veracity, has little probative value and should not be admitted asfresh evidence. Ms Ching notes that Ms Jo has been able to retain her currentemployment following the disclosure of her conviction and says that while Ms Tangsays Ms Jo's employment contract would not be renewed if her conviction remains,that does not explain why the fact of a conviction would mean Ms Jo's employmentcontract could not be renewed. Ms Ching also says that even if Ms Jo's contract werenot renewed, there is no evidence to suggest Ms Jo could not obtain employment at acomparable restaurant in Auckland and notes that Ms Jo had only transferred to MsTang's restaurant from another restaurant in September 2018.[18] Ms Ching submits that Judge Thomas did not err in assessing the gravity of theoffending and says that the Judge took into account each of the relevant factors andwas correct in his conclusion that the offending was on the low end of moderate. MsChing submits that the offending cannot be classified as being of low gravity as itinvolved actual violence, unlawful entry into a dwelling place, the aid of an associateand the presence of multiple vulnerable victims.Approach to appeal[19] Under s 106(1) of the Sentencing Act, the court has a discretion to dischargewithout conviction a person who has either been found guilty of, or has pleaded guiltyto, an offence, unless the applicable statute requires the imposition of a minimumsentence. Under s 107, the court must not grant a discharge without conviction unlesssatisfied that the direct and indirect consequences of a conviction would be out of allproportion to the gravity of the offence.[20] It is well-established that an appeal against a decision to refuse an applicationfor discharge without conviction is a matter requiring judicial assessment, which canbe subject to appeal on normal appellate principles".6 In such an appeal, the Courtmust consider the merits of the case afresh and need not defer to the views of the Courtbelow. However, the appellant bears the onus of persuading the Court to depart fromthe decision appealed against.7[21] The approach required by s 107 is well understood and has been summarisedas requiring consideration of three factors:8(a) the gravity of the offence;(b) the direct and indirect consequences of a conviction; and(c) whether those consequences are out of all proportion to the gravity ofthe offence.[22] These are exactly the matters considered by Judge Thomas.[23] As noted by the Court of Appeal in Z v R,9 the last requirement is key: the courtmust be satisfied that the consequences of the conviction would be out of all proportionto the gravity of the offending before it is entitled to consider whether the discretionconferred by s 106 should be exercised.10Analysis[24] The first issue for determination is whether the court should allow theadmission of the new evidence in Ms Tang's affidavit.[25] Section 335 of the Criminal Procedure Act 2011 allows the court to receivenew evidence on appeal if it is necessary or expedient in the interest of justice. Theappellant must demonstrate that the evidence is sufficiently fresh and credible.116 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11];7 See Austin, Nichols & Co v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].8 Z v R [2012] NZCA 599, [2013] NZAR 142 at [8].9 At [9].10 At [27]11 R v Bain [2001] 1 NZLR 638 (CA).[26] There was no evidence before the District Court about the effects of aconviction on Ms Jo's continued employment. I accept that the evidence of Ms Tangcould have been obtained by Ms Jo before Judge Thomas considered her application.I also accept, however, that Ms Jo would have been reluctant to approach Ms Tang onthis matter for fear of losing her employment. Nonetheless, the evidence of Ms Tangis undoubtedly relevant and, I consider, should be admitted in the interests of justice.I discuss below the weight to be given to this evidence.Gravity of the offending[27] As noted above, the Judge Thomas assessed the offending as falling at thelower end of moderate. He reached that conclusion after considering the seriousnessof the offending and Ms Jo's personal blameworthiness. The Judge considered theoffending to be serious because injuring with intent is a crime of violence which carriesa maximum penalty of five years' imprisonment, because Ms Jo had entered someoneelse's apartment without notice, and because of the extent of the assault and theadditional threats that followed by way of the text messages. These matters were offsetby the factors identified by the Judge as reducing Ms Jo's blameworthiness. Thosefactors were: Ms Jo's lack of previous convictions, her otherwise good character andsupporting references to that effect, her early guilty pleas, her remorse, and herwillingness to undergo restorative justice, and her completion of a stopping violenceprogramme.[28] I consider the Judge's assessment to be thorough and appropriate. I doubt theassertion in Ms Jo's affidavit affirmed on 16 April 2018 that she had no idea that shewould find Mr Park in bed with Ms Song. I consider there an element of premeditationin Ms Jo's entering Mr Park's apartment in the early hours of a Monday morning. Theattack was immediate upon entry and entailed considerable force in dragging Ms Songfrom the bed by her hair and then biting her. The threatening text messages Ms Jo sentsome days after the event militate against any contention that this was a "heat of themoment" event.Direct and indirect consequences of conviction[29] As noted above, Judge Thomas considered the consequences of a convictionon Ms Jo's employment and on her ability to remain in New Zealand. He consideredthe latter to be Ms Jo's main ground in support of her application.[30] On Ms Jo's employment, the only evidence before the District Court was astatement by a fellow chef at a restaurant at which Ms Jo had worked and which saidnothing about the effects of a conviction on her employment. The Judge did not acceptthat the evidence showed a real and appreciable risk that Ms Jo would lose heremployment because there was no evidence that suggested that her employment wouldbe lost if a conviction were entered.[31] Ms Tang's affidavit provides new information on this ground. Ms Tang statesthat it would not be possible for Ms Jo to remain as an employee at Ms Tang'srestaurant because having a staff member with a criminal record for violence is againstthe core values of Ms Tang's company which, Ms Tang says, prides itself as a topoperator in hospitality and for its prestige reputation of zero tolerance on violence anddiscrimination.[32] I do not find Ms Tang's affidavit particularly credible. Ms Tang has providedno evidence of her company's core values or any explanation of why a conviction ofan employee in relation to a very personal matter that has no implications for Ms Jo'shonesty or trustworthiness should provide any basis for not renewing her employment.It is understandable that a prospective employer may be reluctant to hire someone notknown to the employer and who has a criminal conviction. It is much lessunderstandable that a company, even one engaged in the hospitality industry, wouldrefuse to renew the employment contract of an employee who is known to thecompany and who, according to Ms Tang's affidavit, is valued for her honesty andcontinuous hard work. I infer that Ms Tang wrote the affidavit for the purposes ofassisting Ms Jo's application and for that purpose has chosen to exaggerate theconsequences of Ms Jo's conviction.[33] For these reasons, I ascribe little weight to Ms Tang's affidavit and I do notconsider it provides a sufficient basis for reaching a different conclusion from thatreached by Judge Thomas on this ground – namely that the evidence did not show areal and appreciable risk that Ms Jo would lose her employment if she were convictedof the offences to which she has pleaded guilty.[34] In addition, as Ms Ching has submitted, the fact that Ms Jo may not be able torenew her employment at Ms Tang's restaurant does not mean Ms Jo cannot getemployment at another restaurant in Auckland or elsewhere in New Zealand. Ms Jowas able to move to Ms Tang's restaurant while the current charges were pending andwas able to secure the necessary changes to her work visa for that purpose. It isapparent, therefore, that employment at Ms Tang's restaurant is not a necessaryprerequisite to Ms Jo's continued residence in New Zealand.[35] With regard to Ms Jo's continued residence in New Zealand, I accept that ifshe is not granted a discharge without conviction, Ms Jo will not be able to obtain atemporary entry class visa or a residence visa unless she obtains a character waiver.[36] Judge Thomas recognised that obtaining a character waiver would involvemore work but held that more work of itself was not be a reason for granting adischarge. The Judge held that the evidence before him did not establish whether MsJo would or would not get residency. He noted that in considering whether Ms Joshould receive a character waiver, the Immigration authorities would consider thesame considerations that arose in the application for a discharge; namely Ms Jo'scharacter, the circumstances of the offending, the chances of Ms Jo re-offending, andMs Jo's contributions to and connections with New Zealand. The Judge said it wasfor Immigration officials to make these kinds of assessments.[37] Ms Jo has not sought to adduce further evidence on this point and Mr Yi hasexplained the reasons for that. Ms Jo is awaiting a decision from the Immigrationauthorities on her application for a further work visa. Mr Yi has also not referred thecourt to further authorities in this aspect. In the absence of such further evidence orother authorities, I see no reason for reaching a different conclusion from that reachedby Judge Thomas on this point.Application of disproportionality test[38] I accept that to refuse Ms Jo's conviction will make it harder for her to obtainanother work visa or a residence visa and that if she is not able to obtain such a visa,she will have to return to the Republic of Korea. I also accept that, notwithstandingJudge Thomas's understandable reluctance to intrude upon the responsibilities of theImmigration authorities, the Court has, on occasion, reached the view that the loss ofimmigration status is a consequence out of all proportion to the gravity of theoffending; for example Jeon v New Zealand Police, Kumar v New Zealand Police andChand v New Zealand Police.12 In those cases, however, the consequences of the lossof immigration status extended beyond the appellants in each case and hadimplications for the appellants' spouses and children.[39] No such consequences extending beyond Ms Jo are advanced in the presentcase if she is unable to obtain a character waiver. Moreover, it is not argued that areturn to Ms Jo's place of birth in the Republic of Korea would result in hardship toMs Jo, despite Ms Jo's assertion that it is difficult to live as a chef in Korea.[40] People who come to New Zealand on temporary entry visas have the right toapply for further temporary entry visas and for residence visas. They have no right,however, to the grant of such visas. If by committing an offence while in New Zealandthey make the grant of further visas more difficult, that is not itself a reason forgranting a discharge from conviction. That is particularly so where, as here, there isno evidence that requiring Ms Jo to return to her country of birth would result in unduehardship such as to make the consequences of conviction out of all proportion to thegravity of the offending.12 Jeon v New Zealand Police [2014] NZHC 66; Kumar v New Zealand Police [2015] NZHC 3293;Chand v New Zealand Police [2017] NZHC 2188.Result[41] Appeal dismissed._______________________G J van Bohemen J