CHANG v POLICE [2019] NZHC 2051

CHANG v POLICE [2019] NZHC 2051 [20 August 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-000170[2019] NZHC 2051UNDER the Criminal Procedure Act 2011BETWEEN SEUNGHO CHANGAppellantAND NEW ZEALAND POLICERespondentHearing: 19 August 2019Counsel: CM Allington and SE Giles for AppellantSA Rankin for RespondentJudgment: 20 August 2019JUDGMENT OF DOWNS JThis judgment was delivered by me on Tuesday, 20 August 2019 at 4 pm.Registrar/Deputy RegistrarSolicitors/Counsel:Public Defence Service, Waitakere.Crown Solicitor, Auckland.The case[1] On 10 May last year, Mr Seungho Chang grabbed his wife by the hair andslapped her face twice. Mr Chang told her to "get out and die". Mr Chang was angryhis wife had spoken to his mother about some investments. The victim suffered "slightswelling to her face" but not more.1 Mr Chang admitted the offence to the Police andpleaded guilty. The offence was his first. Mr Chang is 42.[2] Judge B R Pidwell declined to discharge Mr Chang without conviction.2Mr Chang appeals. He contends the Judge erred in not discharging him. Mr Changalso contends his sentence of supervision is manifestly excessive.Principle[3] A Court may discharge a defendant without conviction if satisfied the directand indirect consequences of a conviction would be out of all proportion to the gravityof the offence.3 The Court first assesses the gravity of the offending, which includesboth aggravating and mitigating factors. The Court next assesses the direct andindirect consequences of conviction. It then asks whether those would be out of allproportion to the gravity of the offending. If so, the Court has a residual discretionwhether to discharge the defendant without conviction.[4] An appellate Court must be persuaded the Court below was wrong; but reachits decision on its own view of the case.4[5] The sentence appeal must be allowed if, and only if, the Judge erred; and adifferent sentence should have been imposed.51 Summary of facts.2 Police v Chang [2019] NZDC 7860.3 Sentencing Act 2002, s 107. Drake v R [2019] NZCA 56 provides a recent example of a successfulapplication for a discharge (on appeal to the Court of Appeal).4 R v Taulapapa [2018] NZCA 414 at [18] citing H (CA680/2011) v R [2012] NZCA 198 at[35]-[36].5 Criminal Procedure Act 2011, s 250(2).Gravity of the offending[6] The Judge assessed this as low, "but the high end of low".6 Mr Chang arguesthis "overstates the gravity of the offending" given mitigating features. As observed,Mr Chang is a first offender. He pleaded guilty and expressed remorse. Mr Changengaged in a restorative justice conference (in which the victim said she forgave him).Mr Chang successfully completed a 13-week Stopping Violence programme, and othercounselling. The victim supports Mr Chang's discharge. The couple have reunitedand again live together.[7] The Judge referred to all these factors. There were aggravating factors too.Mr Chang assaulted his wife in their home.7 He applied force to her head and face.The assault was accompanied by something like a threat. And, the conduct was notmerely violent but an exercise in humiliation. The victim was entitled to trust herhusband.[8] I share the Judge's assessment of gravity; the high end of low is correct.Consequences of conviction[9] Mr Chang contends the Judge erred in relation to her assessment ofconsequences across four areas: employment; reputation; mental health; andcitizenship, all of which he addressed in an affidavit before the District Court.8Employment[10] Mr Chang is employed by Westpac as a chef. His employment contractrecognises what he does "outside work directly impacts how others perceive us andtherefore Westpac". Westpac is unwilling to comment on what effect, if any, aconviction may have on his employment—Mr Chang has told Westpac about theoffence. Mr Chang is worried a conviction "will be viewed badly by HR and themanagers", and a future employer would not "look past" the conviction.6 Police v Chang, above n 2, at [5].7 Solicitor-General v Hutchison [2018] NZCA 162 at [27].8 Mr Chang includes "other" as a fifth category, but this adds nothing.[11] The Judge said there was "no evidence to suggest that there is a real riskthat you will lose that employment".9 I agree. The issue must be approachedobjectively, not according to a defendant's subjective concern. Mr Chang hascontinued to work for Westpac since being charged; indeed, since pleading guilty inFebruary this year. Entry of a conviction does not change the nature, incidence orseverity of his offending. Like the Judge, I consider the prospect of job-loss remote.[12] Similar observations apply to future employment. A conviction may affectthis, but there is no reason to believe a conviction poses a real and appreciable risk ofthe consequences Mr Chang envisages. Employers are capable of understanding andacting on mitigating features, especially when the offence appears to be a "one-off"by an otherwise law-abiding, good employee. In any event, Courts are reluctant tointerfere with an employer's "right to know" about the individual before them.10 I seeno reason to do so in this case.Reputation[13] Mr Chang is worried a conviction would badly damage his reputation. Hebelieves he will be viewed as a "violent person". The Judge considered somereputational harm "a natural and expected consequence of anyone committing acrime",11 and nothing exceptional arose.[14] I again agree.[15] A distinction should also be drawn between Mr Chang's conduct and the factof a conviction. That Mr Chang has been convicted is unlikely to aggravatereputational harm in consequence of acknowledged conduct.9 Police v Chang, above n 2, at [7] (emphasis added).10 R v Taulapapa, above n 4, at [45].11 Police v Chang, above n 2, at [8].Mental health[16] Mr Chang says he has found it "very difficult" since being charged, and he has"felt very depressed". Mr Chang says if he were convicted, "it will make my mentalhealth even worse".[17] The Judge said this:12Counsel also raises an issue regarding your mental health and generalconsequences of a conviction. There is nothing out of the ordinary in yoursituation which suggests that a conviction will adversely affect those mattersin any way that I need to consider.[18] Mr Chang contends this Court has inferred, in appropriate cases, adverseeffects on a defendant's mental health from the fact of a conviction.13[19] I assume without deciding there may be cases in which this type ofconsequence is so obvious no expert evidence is required. There are dangers in doingso in cases beyond the obvious. Lay people can use medical terms differently fromexperts. For example, it is not uncommon for people say to say they are "depressed",when they really mean no more than they are unhappy. There is no medical evidenceMr Chang is depressed, and no such evidence his psychological well-being may bematerially compromised by the entry of a conviction. In short, nothing objective existsto ground a likelihood of mental hardship beyond what would normally be anticipatedin this type of setting.Citizenship[20] Mr Chang is a New Zealand resident. He wants to apply for citizenship "in thenext one or two years". Mr Chang must declare if he has been convicted of anyoffence. Mr Chang says he is "worried it might mean that I cannot get citizenshipin New Zealand".[21] The Judge addressed this issue this way:1412 Police v Chang, above n 2, at [9].13 For example, Tait v Police [2015] NZHC 1601.14 At [10].Lastly, your Counsel argues that the consequence of a conviction may affectany application of citizenship you may make, as you are a New Zealandresident only. There is significant authority from the High Courts, forexample, Tong v Police, which tells me that it is not for me to interfere withthe immigration process and, therefore, I set that consequence to one side.[22] Mr Chang contends the Judge overlooked recent cases in which immigrationconsequences have been treated as relevant in this context.15[23] Again, no error arises. Mr Chang has not identified a real and substantiallikelihood of any adverse consequence; merely the subjective concern of one.Moreover, the Judge was right to emphasise this issue is not for the Courts. Questionsof whether New Zealand citizenship should be granted are quintessentially for theExecutive—seized of all relevant information.Proportionality[24] As will be apparent, Mr Chang's concerns about consequences of convictionare largely subjective; not real and appreciable ones. Those that do exist—forexample, some reputational harm—cannot be said to be out of all proportion to thegravity of the offence.Other cases[25] Mr Chang cited three cases in which the defendant had been discharged.16 Iaddress only the most similar.[26] In Tait v Police, the victim and the defendant had an argument after the latteraccused the former of poor driving. The defendant struck the victim across the facewith his open hand—once. Asher J concluded the consequences of conviction wouldbe out of all proportion to the gravity of the offending. Potential employmentconsequences loomed large, albeit ones of a somewhat open-ended nature.[27] Mr Chang's violence was more serious than Mr Tait's. Unlike Mr Tait, he andthe victim were in a relationship, and one of trust. Tait is distinguishable.15 For example, Rahim v R [2018] NZCA 182 and Sunda v Police [2019] NZHC 756.16 Phipps v Police [2015] NZHC 614, Dai v Police [2015] NZHC 2907 and Tait v Police [2015]NZHC 1601.Is a term of supervision manifestly excessive?[28] The Judge imposed a term of nine months' supervision. Mr Chang contendsthis is manifestly excessive because supervision can be imposed only when the Courtis satisfied that sentence would reduce the likelihood of further offending by thedefendant's rehabilitation and reintegration.17 Mr Chang submits supervision wasunnecessary given his voluntary rehabilitative steps, age, and the fact he is a firstoffender.[29] In his affidavit, Mr Chang said he wished to undertake relationship counsellingwith his wife but could not then afford it. Mr Chang also said he wanted to "doRestorative Justice" and was prepared to complete "voluntary community work or goto any programmes or courses the Court tells me to". The affidavit implies Mr Changhas made considerable progress in his rehabilitation but would benefit from further,Court-facilitated help. Supervision was therefore an obvious choice.[30] This leaves one aspect. The Judge imposed a special condition Mr Changcomplete family or relationship counselling as directed. I infer the Judge did sobecause Mr Chang said he could not afford this. However, a special condition maynot be imposed unless the defendant poses "a significant risk of further offending".18Mr Chang does not. The condition must be quashed.Result[31] Mr Chang's appeal is allowed but only to the extent the special condition ofsupervision is quashed. To avoid doubt, Mr Chang's conviction remains. So too hissentence of supervision...Downs J17 Sentencing Act 2002, s 46.18 Section 50(a).