CHANG v POLICE [2022] NZHC 2187

CHANG v POLICE [2022] NZHC 2187 [31 August 2022]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECRI-2022-488-19[2022] NZHC 2187BETWEEN SIN TIN (ADA) CHANGAppellantAND NEW ZEALAND POLICERespondentJudgment:(On the papers)31 August 2022JUDGMENT OF BREWER JThis judgment was delivered by me on 31 August 2022 at 10 amRegistrar/Deputy RegistrarSolicitors:T Shepherd (Kaikohe) for AppellantNew Zealand Police Prosecution Service (Kaikohe) for RespondentIntroduction[1] Ms Chang appeals the refusal of Judge H B Shortland on 18 February 2022 todischarge her without conviction.1[2] Ms Chang pleaded guilty to three charges of criminal harassment.2[3] Ms Chang was employed by the victim as a barista for about three months,beginning her employment in March 2020. Judge Shortland set out the events whichfounded the charges:[4] At about 8.00 am on 9 February [2021] the police served a trespassnotice on you and you were trespassed from the victim's workplace for aperiod of two years. However, later that day on 9 February at about half pastthree you arrived at the victim's place of work looking for her. As a result,you were issued with a formal warning for wilful trespass.[5] On 11 February [2021], police served you with a criminal harassmentorder against the victim for this matter. At about 10 pm on Monday 8 March2021 the victim was checking her voice messages on her mobile phone; youhad left 10 voice messages for the victim. You stated in the voice messagesthat you were in Kerikeri and wanted to follow up with her. The victimbecame scared for her safety after listening to your voice messages.[6] Again, about 12 pm on 13 March 2021 the victim was checking hervoice messages on her mobile phone. You left a further 15 voice messages forher. At that stage the victim blocked your number, but you continued to leavevoice messages. You had stated in the voice messages that you wanted to bein a relationship with the victim. Those were the first two criminal harassmentcharges.[7] As you know, the victim was, or still may be, the owner of a smallbusiness in Kerikeri. Due to the conflict at this stage your employmentcontract had been terminated and your behaviour had become something of aworry and therefore, again, you were trespassed from the address, as Imentioned, on 9 February. Of course, a criminal harassment notice was servedon you on 12 February, so those facts are important as we go forward.[8] On Saturday 11 September 2021 at about 11 o'clock the victim'spartner arrived back at their home and found you standing on the frontdoorstep. He immediately asked you to leave but you refused. You thenproceeded to walk around the exterior of their home prying at a closed windowand a door trying to gain entry to the dwelling. You then found that was notsuccessful and you made your way towards the victim's mailbox and riffledthrough the contents before taking a series of photos. Frustrated at this thevictim's partner has called her about the incident and the police weresubsequently called. This obviously inflamed your behaviour or upset you at1 Police v Chang [2022] NZDC 2777.2 Harassment Act 1997, s 8(1)(a). The penalty is a maximum term of imprisonment of two years.the time and you began to pace the length of the driveway demanding to speakto the victim.[9] Witnessing this whole incident was a female neighbour who camepretty much to your aid and removed you from the address until the policearrived. In the explanation to the police you replied by saying you wereconcerned about the victim's business, it was closing and wanted to discussthis matter with her. So, effectively, they were the facts of the case.The law[4] An appeal against a refusal of a Court to grant a discharge without convictionis a composite appeal against both conviction and sentence.3 Ms Chang's appealagainst the entry of a conviction will succeed only if I am satisfied that a miscarriageof justice has occurred. A miscarriage of justice will have occurred if there has beena material error or Judge Shortland materially "erred in applying the principles"4 fordischarging an offender without conviction.[5] An appeal against sentence will succeed if an error is identified such that adifferent sentence should be imposed. If a sentence is manifestly excessive then thatis an error which must be corrected.[6] Section 106 of the Sentencing Act 2002 (the Act) empowers a Judge todischarge an offender without conviction. However, s 107 provides:The court must not discharge an offender without conviction unless the courtis satisfied that the direct and indirect consequences of a conviction would beout of all proportion to the gravity of the offence.[7] Accordingly, there are three steps a court must take in deciding whether thereshould be a discharge without conviction. It must:(a) Assess the gravity of the offence. This requires not only an assessmentof the offending itself but also of any factors personal to the offenderwhich aggravate or mitigate the gravity of the offending.3 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [7]-[8].4 At [12].(b) Identify the direct and indirect consequences of conviction for theoffender.(c) Determine whether the direct and indirect consequences of convictionwould be out of all proportion to the gravity of the offending.[8] Only if the court decides that the s 107 threshold has been crossed may it thenconsider whether to exercise the discretion under s 106.The Judge's analysis[9] The Judge first assessed the gravity of the offending. He identified asaggravating features of the offending:(a) It resulted from "a very unhealthy attraction to the victim".5(b) There were excessive phone calls.(c) There were attempts by Ms Chang to enter the victim's home.(d) There were attempts to have continual contact with the victim.(e) Warning notices about potential harassment, stalking and trespass wereignored.(f) There was a psychological impact on the victim and her family.[10] The Judge noted that Ms Chang continued to have an "ongoing obsession or afocus on the victim".6[11] The Judge recognised that Ms Chang had mental health difficulties and thatshe had been in the care of the Mason Clinic:[16] In terms of mitigation I think Mr Shepherd has outlined, in honesty,the struggles that you had in your upbringing of life, the difficulty that you5 At [14].6 At [15].suffered from being abandoned as a child and, of course, you were raised bya loving auntie. More importantly, you suffered some sort of head trauma orinjury, concussion, just prior to the offending and, of course, that always raisesthe issue or the risk as to how much of this offending is mental health, howmuch of that is personality. You have very little family support, if nothing, inNew Zealand, you have lost what work you have had, you have financialstresses in terms of debts and I am unsure as to how much support you havein the community. You were diagnosed with conditions, delusional disorder,you were fixated on the victim and I think the psychiatrists have been veryclear in terms of the diagnoses that you have suffered.[17] I note and acknowledge that you have been in custody for about sixweeks and the remainder of that time you have been in the Mason Clinic. Youhave expressed remorse in the reports that I have seen. You are considered byCommunity Corrections to be low risk to harm and low risk to re-offending.You have made some improvement but I do note there is the potential ofrecurrent behaviour and, as the professionals have said, trying to describe themitigation of risk is very, very difficult, it is really an indication exercise andnot a guarantee.[12] The Judge considered the gravity of the offending to be moderately serious.[13] The Judge then identified the direct and indirect consequences of convictionsfor Ms Chang if she were convicted of the charges:(a) There would be "an impact on your ability to renew a visa".7 However,the Judge noted that the immigration authorities were already in theprocess of deporting Ms Chang and concluded this was not an operativefactor.(b) Negative impact on employment possibilities.(c) Deprivation of good character which could extend to the good name ofMs Chang's extended family.[14] The Judge then turned to the test of whether the consequences of convictionswould be out of all proportion to the gravity of the offending.[15] The Judge noted that Ms Chang had already spent five months in custody.7 At [18].[16] The Judge concluded that convictions would not be out of proportion to theoffending. The Judge said:[24] I am mindful of the compelling and mitigating submissions that hasbeen provided. You have remorse, you are not sure what happened there, youcannot explain why things happened like they did, you have good character,you have employable options. That certainly does not answer all thequestions. You have been subject to mental health treatments andmedications. However, one cannot ignore the unfortunate case in recent timesof the Christie Marceau and, as a result of that case, there has been aheightened need to assess the balance of the risk of harm against justice. Thatis a matter in which this decision falls upon.[25] In this case I have weighted my decision towards the need to monitorthe risk of harm and, on that basis, I am grateful to all the reports that havebeen provided by the psychiatrists which have highlighted their views andhow they can best mitigate risk. They have been honest in terms of trying toidentify the risk of harm and whilst these are good reports the door is still leftopen as to potential risk in terms of the fixation. That must be considered inthe context that at some stage you are going to be released from the MasonClinic and there has got to be some sort of ongoing support and monitoringbecause the real issue of whether there is still potential risk towards the victimhas not been mitigated, in my view, fully.[26] The issue of the fixation of the victim has not totally gone. It has beendescribed in some reports as partial remission, also being described asrequiring ongoing treatment with mediation and identified, most probably, inthe community because one cannot stay inpatient for long periods of timeunless really required. So, despite the protestations of not being fixedanymore I am not convinced that is the case.[27] To discharge without conviction, if granted, the court does not havethe ability to monitor any ongoing behaviour. I do note in s 106(c) leaves awide ambit for the court to impose any other condition. However, that too hasits restrictions. I am mindful that if Ms Chang was discharged withoutconviction she would only be subject to mental health and perhaps some minorcriminal matters and, in my view, that is not sufficient to mitigate or to managethe ongoing risk that is still currently there. Under the Mental Health(Compulsory Assessment and Treatment) Act 1992, particularly in thecommunity, the Act requires the patient at the time, or the consumer, to takemedication, they can determine where they take medication but they cannotdictate where they live and I stand to be corrected if that has not changed.[17] The final outcome for Ms Chang was a sentence of nine months' intensivesupervision.The appeal[18] The main issue on appeal is whether the Jude failed to give proper weight toMs Chang's mental health in assessing the gravity of her offending.[19] To put this ground of appeal into proper perspective it is necessary to considerMs Chang's personal history.[20] Ms Chang is a Chinese national who came to New Zealand from Hong Kongon 2 January 2020 on a work-holiday visa. She was 29 years old. Her work was incomputer programming. Ms Chang had no criminal history.[21] Ms Chang's visa permitted her to work for periods of no longer than threemonths at a time. In March 2020, Ms Chang met the complainant, who owned a café,and spent about three months working for the complainant as a barista.[22] Ms Chang was attracted to the complainant, but did not act on it. Her travels,and working periods, continued. She kept in touch with the complainant.[23] On 21 September 2020, Ms Chang sustained serious head injuries in a sand-duning accident and was admitted to Whangarei Base Hospital. This might well havehad an effect on her subsequent behaviour.[24] Ms Chang was arrested on the charges of criminal harassment on 11 September2021. Her behaviour raised concerns about her mental health. After a number ofassessments Ms Chang was transferred to the Mason Clinic on 16 November 2021.She was resident there at the date of her sentencing. Two days later Ms Chang wasserved with a notice of liability for deportation. Ms Chang decided to leaveNew Zealand voluntarily. Her first two attempts to leave were unsuccessful due todifficulties complying with Hong Kong's Covid-19 entry restrictions. On bothoccasions, having failed to board her flight, she returned to the care of the MasonClinic. Ms Chang's third attempt to return to Hong Kong was successful.[25] Mr Shepherd for Ms Chang made careful submissions on the Judge's analysisof the gravity of Ms Chang's offending. I accept that the Judge erred.[26] The circumstances of the offending, alone, do describe moderately seriousoffending. The first two charges arose from voice messages left on the complainant'smobile phone in March 2021. The messages did not contain threats. However, thethird charge relates to an actual visit by Ms Chang to the complainant's address. Thecomplainant was not there. However, Ms Chang refused to go away. She neverentered the complainant's home, she made no threats, but she acted oddly and wasnearby when the police came. And, obviously, there was a history of behaviour thathad led to the issue of a trespass notice and, later, a Criminal Harassment Order.Overall, the offending is at the lower end of the moderate range because of itspersistence.[27] However, Ms Chang's personal circumstances must reduce the gravity of theoffending. The Judge identified Ms Chang's previous good character. That requireda discount. But it was clear that Ms Chang's mental health, likely precipitated by herhead injury, was causative of her offending. That required considerable recognition.[28] I refer, by way of example, to J (CA32/2021) v R. In that case the appellantentered a liquor store carrying an axe which she placed on the counter.8 She told theshop assistant that she wanted a couple of boxes of Woodstock and a carton ofcigarettes. She picked up the axe and proceeded to remove two boxes of Woodstockfrom the chiller. The assistant gave her a carton of cigarettes. She left carrying theaxe. She subsequently pleaded guilty to one charge of demanding with menaces.9[29] The appellant applied for a discharge without conviction. Her application wasdeclined. She appealed unsuccessfully to the High Court. She then sought leave ofthe Court of Appeal to bring a second appeal against her sentence. She argued that theHigh Court's interpretation of s 107 of the Sentencing Act 2002 had been too narrowand that the Court must retain a discretion to avoid a miscarriage of justice where amature, first time offender would never have offended but for the intervention of aproperly diagnosed psychotic episode.10[30] The Court of Appeal granted the appellant leave.11 It accepted that theappellant was "obviously seriously mentally unwell at the time of the offending".128 J (CA32/2021) v R [2021] NZCA 690 at [6].9 Crimes Act 1961, s 239(2): carrying a maximum penalty of seven years' imprisonment.10 J (CA32/2021) v R, above n 8, at [4].11 At [51].12 At [38].She had been in the manic phase of an established and diagnosed bipolar affectivedisorder at the relevant time.13 But for her ill-health, the offending would not haveoccurred.14 The Court accordingly found that the gravity of the offending was "low"and that a discharge without conviction was warranted.15[31] I consider that but for Ms Chang's ill-health the offending would not haveoccurred. Accordingly, I assess the overall gravity of Ms Chang's offending as verylow.[32] I also accept Mr Shepherd's submission that the Judge did not give due weightto the direct and indirect consequences to Ms Chang.[33] It is true that Ms Chang was in New Zealand on a short-term visa and thatImmigration New Zealand was already taking steps to remove Ms Chang. Butconvictions would impact her chances of successfully applying to return. And theymight be relevant to her ability to travel to other countries.[34] Convictions would deprive Ms Chang of her good character. Usually, that isof little weight where there has been deliberate offending. But not where the offendinghas been caused by mental ill-health.[35] I consider also that the Judge erred in taking into account at the stage he didthe possible risk to the complainant and/or the community if Ms Chang were subjectto the mental health legislation in the event of a discharge without conviction asopposed to the more supervisory regimes available to the Court on conviction. In myview, those are factors going to the exercise of the s 106 discretion once the s 107threshold has been crossed.[36] In this case there was no real risk identified. Ms Chang was going to continueto be subject to the compulsory treatment requirements of the Mental Health(Compulsory Assessment and Treatment) Act 1992. Her condition had improved13 At [11].14 At [38].15 At [41] and [51].considerably during her period at the Mason Clinic and she was ready to be releasedinto the community. There was no reason not to exercise the s 106 discretion.[37] Finally, even if a conviction was justified, the sentence of nine months'intensive supervision was manifestly excessive. Ms Chang had been in custody (inprison or at the Mason Clinic) for some five months before sentencing. The Judge didnot take that into account in reaching his sentence. Further, intensive supervisionranks immediately below home detention in the hierarchy of sentencing. It imposessignificant constraints on the liberty of the person sentenced to it. The Judge imposedit, I infer, not as the least restrictive response to Ms Chang's offending but as a measureto manage the risk of her relapsing and re-offending. That was an error. Anappropriate sentence (assuming the s 107 threshold was not crossed), given timeserved and the fact that Ms Chang was subject to compulsory treatment under themental health legislation, would have been a conviction and discharge.Decision[38] I have concluded:(a) The gravity of Ms Chang's offending was very low.(b) The direct and indirect consequences to her of the entry of convictionswere not insignificant.(c) Those consequences were out of all proportion to the gravity of heroffending.(d) There was no sufficient reason not to exercise the discretion under s 106of the Act to discharge Ms Chang without conviction.(e) In any event, the sentence of nine months' intensive supervision wasmanifestly excessive.[39] The appeal is allowed. Ms Chang's convictions are quashed and she isdischarged without conviction.________________________________Brewer J