FENG v NEW ZEALAND POLICE [2019] NZHC 2418

FENG v NEW ZEALAND POLICE [2019] NZHC 2418 [24 September 2019]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2019-409-000065[2019] NZHC 2418BETWEEN SHAWN FENGAppellantAND NEW ZEALAND POLICERespondentHearing: 19 September 2019Appearances: J Lucas for AppellantS Dayal for RespondentJudgment: 24 September 2019JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 24 September 2019 at 3.00 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: 24 September 2019Introduction[1] Shawn Feng pleaded guilty to common assault of his now ex-wife. Mr Fengsought a discharge without conviction. However, on 17 April 2019, Judge Kellarconvicted Mr Feng and ordered him to come up for sentence if called upon.[2] Mr Feng appeals his conviction on the grounds that the circumstanceswarranted a decision to discharge him without conviction.Facts[3] On 17 January 2018, Mr Feng and his now ex-wife got into a verbal dispute.He tried to grab her mobile phone from her. She resisted, pushing him away. He thenpunched her on the left side of the face. She pushed past him and ran to the front door.He grabbed her by the top of her shoulders and bottom of her neck to stop her fromleaving. She sustained minor injuries.[4] Mr Feng was originally charged with male assaults female and assault withintent to injure. He pleaded guilty when the assault with intent to injure waswithdrawn and the male assaults female charge was downgraded to common assault.District Court decision[5] Mr Feng applied for a discharge without conviction. Judge Kellar set out thelaw on those applications. He noted that Mr Feng has no previous convictions andentered a guilty plea at a relatively early stage once the charges had been amended.He recorded that Mr Feng had attended a 16-session Stopping Violence course andhad engaged well.[6] In terms of consequences of the conviction, there was no evidence before theJudge that Mr Feng's employment as a quantity surveyor would be in jeopardy shouldhe be convicted. The Judge acknowledged that it may make gaining another job infuture more difficult than it would be for someone without a conviction.[7] Mr Feng also said a conviction may impede his ability to travel to China wherehe was born, although he is a New Zealand citizen now. The Judge said that Mr Feng'sparents and children both live in New Zealand. While there was no evidence that aconviction would create a bar to entry into China, the Judge was prepared to acceptthat it may create difficulties and there was some potential disadvantage to Mr Feng.[8] In deciding whether the consequences of a conviction would be out of allproportion to the gravity of the offending, the Judge acknowledged that the offendingwas of low to moderate seriousness for an offence of this type. However, he was notsatisfied that the consequences would be out of all proportion, so declined to dischargehim without conviction. Taking into account the mitigating factors of the offendingand of Mr Feng personally, the Judge considered it appropriate to simply convict himand order him to come up for sentence if called upon.Principles on appeal[9] 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.[10] 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.1 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.2Admission of further evidence[11] Mr Feng first seeks to have a new affidavit admitted as further evidence.Mr Lucas, for Mr Feng, submits that it is in the interest of justice to admit the affidavit,as it is sufficiently fresh and credible and touches on key issues relevant to thedetermination of whether a discharge without conviction should be granted. TheCrown does not oppose the application.[12] Mr Feng's affidavit clarifies his parents' situation, which the Judge hadconsidered relevant in assessing the potential consequences of a conviction. The Judgeunderstood that both Mr Feng's parents lived in New Zealand. In fact, Mr Feng'sfather moved back to China last month and his mother intends to join him early nextyear. As such, Mr Feng intends to return to China on a regular basis over the next fewyears, including with his children, to keep in touch with his family. His counsel sent1 H v R [2012] NZCA 198 at [35]-[36].2 Criminal Procedure Act 2011, s 232(2)(b) or (c); and Jackson v R [2016] NZCA 627, (2016) 28CRNZ 144 at [12].a letter to the Chinese Consulate to get information on what effect this convictionwould have on his ability to travel to China. He has not received a response.[13] His affidavit also sets out more detail about Mr Feng's employment and thepossible effects of this conviction on it. He has been employed as a quantity surveyorfor EQC for the last two years. While he will have to disclose the offending to theNew Zealand Institute of Quantity Surveyors regardless of the outcome of this appeal,it appears that he will only have to inform his employer if he is convicted. That willlikely trigger an investigation. Mr Feng says that he works with a number of clients,requiring trust and confidence in the relationship. He says he believes that "some ofour clients may not trust a person with a violent criminal history". He is concernedthat he will be held back from engaging with new clients and being promoted. Hisrole is project-based and people are generally made redundant if they are not assignedto a new project. He fears his conviction will affect his chances of being selected fora future project. He notes the job market for quantity surveyors is competitive.[14] For further evidence to be admitted on appeal, it should be sufficiently credibleand sufficiently fresh, in the sense that it could not have been obtained for the trialwith reasonable diligence.3 If the evidence is credible but not fresh, the Court shouldassess its effect on the safety of the conviction. If there is a risk of a miscarriage ofjustice if the evidence were excluded, the evidence should be admitted.[15] Mr Feng's affidavit is, in part, fresh, in the sense it updates the Court on wherehis parents are currently residing or plan to reside in the future, although much of whatit covers could have been presented at the first hearing. It also provides further detailabout his employment which is of assistance in understanding the potentialconsequences of a conviction and in correcting and updating the information aboutwhere Mr Feng's parents live and intend to live in the future. The information isnecessary to fully understand the consequences of a conviction.[16] For these reasons, and in the absence of opposition, the affidavit is admitted.3 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].SubmissionsAppellant's submissions[17] Mr Lucas, for Mr Feng, first submits that the Judge erred in not articulating aninitial grading of the seriousness of the offending, before moving on to assess widerconsiderations like Mr Feng's personal circumstances. He submits that the Judge didnot give Mr Feng's personal circumstances appropriate weight, including Mr Feng'sgaining of citizenship and profession, his age and lack of criminal history, the contextof the offending, his attending a Stopping Violence course, his willingness toundertake restorative justice, and his prompt guilty plea once the charges wereamended.[18] Mr Lucas cites the recent decision in Mathieson v Police, where the Court ofAppeal criticised the District Court's approach of appearing to relegate theconsideration of mitigating personal circumstances to the assessment of a penalty,rather than including them in the assessment of the overall gravity of the offending.4[19] Mr Lucas submits that this was a one-off event during a highly stressful time,committed by a professional, intelligent man of otherwise good character, who hassince undertaken prolonged rehabilitation, has shown remorse, and is at low risk ofreoffending.[20] In terms of consequences of a conviction, Mr Lucas stresses the potential effecton Mr Feng's current and future employment, and his consequential ability to providechild support, and the potential effect on his ability to visit his family in China.Respondent's submissions[21] Ms Dayal, for the Crown, submits that the Judge was correct to refuse to granta discharge without conviction. She submits the Judge's assessment of the gravity ofthe offending as low to moderate was correct and took into account the broaderrelevant considerations, including mitigating factors relating to Mr Feng personally.The Judge had all the necessary information before him to make that assessment.4 Mathieson v Police [2019] NZCA 406 at [14]-[16].Ms Dayal notes the Court of Appeal's comments on the seriousness of domesticviolence in Solicitor General v Hutchison, calling it "one of the scourges ofNew Zealand society" and highlighting the inherent breach of trust.5[22] Ms Dayal submits that the consequences of a conviction claimed by Mr Fengare speculative. She notes that Mr Feng is obliged to inform the New Zealand Instituteof Quantity Surveyors of his offending regardless of the outcome of this appeal. Thereis no independent evidence corroborating any of Mr Feng's other concerns about hiscurrent and future employment. She submits that it is not the function of the courts topre-empt decisions by employers about the suitability of prospective employees.6 Inrelation to Mr Feng's submission that a conviction will affect his ability to travel toChina, Ms Dayal says that submission alone, without more, does not reach thethreshold of a real and appreciable risk of that consequence eventuating.Analysis[23] The approach to applications for a discharge without conviction under s 106 ofthe Sentencing Act requires consideration of three factors:7(a) the gravity of the offending, including both the seriousness of the actualoffending and of the aggravating and of mitigating factors relating tothe offender;(b) the direct and indirect consequences of a conviction; and(c) whether those consequences are out of all proportion to the assessedgravity of the offending.[24] Mr Feng considers that the District Court Judge only took the mitigating factorsrelating to him personally into account when assessing the penalty, and not at the firststage of assessing the gravity of the offending. He submits that if the Judge had takenthose factors into account at the appropriate stage, the Judge's assessment of the5 Solicitor General v Hutchison [2018] NZCA 162, [2018] 3 NZLR 420 at [26]-[27].6 Graham v Police [2018] NZCA 172 at [29].7 Z v R [2012] NZCA 599, [2013] NZAR 142; Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620.offending as of "low to moderate seriousness" would have been changed to "verylow".[25] In support of this submission he refers to the Court of Appeal's decision inMathieson where, after setting out the mitigating factors relating to the appellant, theCourt noted:8[16] We do not consider it possible for a proper consideration of thesefactors not to have resulted in a significant reassessment of the overall gravityof the offending. In terms of the observation made by the High Court, weobserve such a reassessment does not constitute a recharacterisation of theseriousness of the offending. They are two different evaluations, reflecting thetwo steps inherent in the first stage of the s 106 assessment discussed aboveThe first is an initial grading of but one aspect of the case – the actualoffending; the second evaluation is a much broader analysis of all relevantconsiderations, including the actual offending. That the overall assessment ofgravity is lower than the narrower assessment of the offending merely reflectsthat at the second step within the gravity assessment there are positivemitigating factors to also consider.[26] However, the point which is made in Mathieson is that the assessment of thegravity of the offending must take into account not just the actual offending, but allthe relevant considerations, including the mitigating factors relating to the offender.[27] In my view, this was clearly understood by the Judge when he said:The first thing I have to do is make an assessment of the overall gravity orseriousness of the offending, having regard not only to the circumstances ofthe offence itself but also to your personal situation.The Judge then went on to discuss both the offending itself and Mr Feng's personalsituation including his absence of prior convictions, that he entered an early guilty pleaand he participated in the Stopping Violence course in which he "engaged well". Forthese reasons, I am satisfied that when he assessed the gravity of the offending as "lowto moderate" he had clearly undertaken the overall assessment which was required inMathieson.[28] In my view, his assessment was correct. There are significant mitigatingfactors relating to Mr Feng, which have been canvassed. His attending and engaging8 Mathieson v Police, above n 3.well in the full 16-session Stopping Violence programme is particularly commendable.However, I also note his wife's comments in her victim impact statements that she hasnever heard him say sorry, that he treats her "unfriendly" after she obtained aprotection order against him, and that she is still scared of him.[29] Turning to the second stage of the assessment, Mr Feng's evidence andMr Lucas' submissions identify potential indirect consequences of a conviction, butnothing concrete. Mr Feng must though only establish that there is a "real andappreciable risk" of adverse consequences ensuing.9[30] It is likely that Mr Feng will travel to China on a semi-regular basis,particularly now the Court understands that both his parents will be living there fromearly next year. However, speculation about travel restrictions will not in themselvesbe sufficient to justify a discharge without conviction. As the Court of Appeal hasstated:10[25] It does not follow, however, that a court will permit an applicant tospeculate about matters of present fact, in which we include any existing travelrestrictions that are said to preclude travel. Proof of these matters may requireexpert evidence if they are not agreed and cannot be established in any otherway.[26] It seems to us, speaking generally, that a court will ordinarily expectto be satisfied that under the law and practice of the jurisdiction concerned:(1) the conviction must be disclosed but, assuming a discharge isgiven, the fact that the offence was committed need not be;and(2) in consequence of the conviction, the applicant is prima facieinadmissible, and for how long; and(3) there is no alternative entry process available or that, if thereis, such process is unreasonably difficult and uncertain in allthe circumstances.[27] If all of these things can be established, a sentencing court mustfurther be satisfied that the offence is not so serious that it would be wrong toallow the applicant to present himself or herself to foreign immigrationauthorities without disclosing it.9 DC v R [2013] NZCA 255 at [43].10 Edwards v R [2015] NZCA 583.[31] Mr Feng has not been able to establish these requirements, although Iacknowledge his counsel's unanswered letter to the Chinese Consulate seekinginformation. The High Court has, on multiple occasions, dismissed similarsubmissions as there is no evidence that a conviction would necessarily affect aperson's ability to travel to China.11[32] Similarly, Mr Feng's submissions about the effect the conviction may have onhis employment do not identify a "real and appreciable risk" of adverse consequences.It is common sense that there are potential future employment consequences for aperson with a conviction. Mr Feng has deposed that his employer will begin aninvestigation should his conviction stand. However, Mr Feng will have theopportunity to be heard and explain the context of the offending during thatinvestigation and it can be expected that the Court's decision to impose no otherpenalty than the conviction itself would be taken into account in assessing its lack ofrelative seriousness. Finally, Mr Feng is obliged to disclose his offending to hisprofessional registration body even if he is discharged without conviction. The othersubmitted consequences, such as a possible loss of trust with his clients and possiblybeing prioritised for redundancy in his employer's restructuring, are entirelyspeculative.[33] In all the circumstances, the potential consequences of a conviction forcommon assault that Mr Feng has identified are those that flow naturally from aconviction for his offending and although they will create some hurdles for Mr Feng,including when travelling, they do not reach the high threshold of being out of allproportion to that offending.Conclusion[34] I am not satisfied that the consequences of the conviction are out of allproportion to the gravity of the offending. The appeal is dismissed.Solicitors:Public Defence Service, ChristchurchRaymond Donnelly & Co., Christchurch11 For example, Withington v Bay of Plenty Regional Council [2018] NZHC 1237; Yang v Ministryof Business, Innovation and Employment [2017] NZHC 1673.