YUAN v NEW ZEALAND POLICE [2020] NZHC 933

YUAN v NEW ZEALAND POLICE [2020] NZHC 933 [7 May 2020]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECRI-2020-425-4[2020] NZHC 933BETWEEN XINGKE YUANAppellantAND NEW ZEALAND POLICERespondentHearing: 4 May 2020(by way of Virtual Meeting Room)Appearances: T Surrey for AppellantR Donnelly for RespondentJudgment: 7 May 2020JUDGMENT OF MANDER JThis judgment was delivered by me on 7 May 2020 at 3 pm pursuant to Rule 11.5of the High Court RulesRegistrar/Deputy RegistrarDate: .[1] Mr Yuan appeals his conviction and sentence on a charge of driving withexcess blood alcohol.1 He pleaded guilty and applied to be discharged withoutconviction. Judge Walker declined Mr Yuan's application, and he was fined $1,000and disqualified from driving for eight months. Mr Yuan appeals Judge Walker'sdecision.[2] Mr Yuan sought leave to file an updating affidavit for the purposes of hisappeal. The Crown did not oppose the admission of that evidence and I am satisfiedit meets the requisite test of being credible, fresh and relevant for it to be admitted.2Background[3] At 2 am on 20 June 2019, Mr Yuan was apprehended by police driving inQueenstown with no headlights on. He had two passengers in his vehicle when hewas stopped. The attending officers noticed that Mr Yuan was affected by alcohol,and a passive breath test gave a positive result of alcohol.[4] There were difficulties with completing a roadside breath screening test, andMr Yuan was required to accompany police to the police station. An evidential breathtest gave an incomplete result. As a result, a blood sample was taken. On analysisthis showed a concentration of 181 mg of alcohol per 100 ml of blood, which is somefour times the legal limit.[5] Mr Yuan is a 24 year old Chinese national (he was 23 years of age at the timeof the offending). He was in New Zealand studying English pursuant to a student visa.District Court ruling[6] In addressing Mr Yuan's application for discharge, Judge Walker firstlyconsidered the seriousness of the offending. He noted that required him to assess themitigating and aggravating features, both of the offence itself and those personal toMr Yuan. The aggravating features were identified as being the very high alcohol1 Land Transport Act 1998, s 56(2). Maximum penalty three months' imprisonment and a fine notexceeding $4,500.2 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].level, the presence of passengers, the fact that Mr Yuan was driving without hisheadlights on, and that because of his blood alcohol level Mr Yuan must have knownhe was intoxicated and should not have been driving.[7] Mitigating factors were identified as the guilty plea, although it was noted thiswas only entered on the day of Mr Yuan's trial, his age, and absence of previousconvictions. It was noted that Mr Yuan had expressed considerable remorse and wasotherwise of good character. He had sold his vehicle and instructed his lawyer that hehad not driven since the incident.[8] On balance, Judge Walker considered that, because of the extremely high levelof alcohol in Mr Yuan's blood, his offending fell into the moderate to high category ofseriousness.[9] Turning to the consequences of a conviction, the Judge noted possibleemployment and travel implications. The issue of most concern was the possibleimpact of a conviction on Mr Yuan's immigration status. In a letter tendered to theCourt, an immigration consultant opined that a conviction may jeopardise Mr Yuan'schances of obtaining further visas and that a conviction would be taken extremelyseriously.[10] The Judge observed that the courts had generally taken the view that it wasmore appropriate for the immigration authorities to determine issues arising from aconviction. Being satisfied that the direct and indirect consequences of a convictionwould not be out of all proportion to the gravity of the offending, Judge Walkerdeclined to discharge Mr Yuan without conviction.The appeal[11] Mr Yuan brings his appeal on the basis that the District Court erred in itsassessment of the gravity of the offending by giving insufficient weight to themitigating factors of his youth, guilty plea, lack of previous convictions, and remorse.Further, that the Judge failed to appropriately take into account the immigrationconsequences arising from a conviction and its impact on him being able to obtainfurther visas and remain in New Zealand.[12] Ms Surrey, who appeared on Mr Yuan's behalf, submitted that the additionalevidence filed in support of the appeal when combined with the earlier materialdemonstrated that the consequences of a conviction would be out of all proportion tothe gravity of the offending, and that Mr Yuan's time in New Zealand wouldeffectively be brought to an end because of this single incident.The approach on appeal and the relevant law[13] An appeal against a refusal to grant a discharge without conviction is an appealagainst conviction and sentence, and proceeds as a general appeal.3 The appellatecourt is required to consider the merits of the case afresh and need not defer to theview of the court below. However, the appellant bears the onus of identifying error inthe lower court's assessment and persuading the appellate court to depart from itsdecision.4[14] A sentencing court may discharge an offender without conviction following aplea or finding of guilt.5 However, the court must not do so unless satisfied that thedirect and indirect consequences of a conviction would be out of all proportion to thegravity of the offence.6 A three-step approach is required:7(a) the gravity of the offending is to be identified by taking into account allaggravating and mitigating factors of the offending and the offender;(b) the direct and indirect consequences for the offender must then beidentified; and(c) a determination made as to whether those consequences are "out of allproportion" to the gravity of the offence.3 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [8]–[9] and [16].4 Jo v Police [2019] NZHC 1369 at [20].5 Sentencing Act 2002, s 106.6 Sentencing Act, s 107.7 Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [27]; and Prasad v R [2018] NZCA537 at [11].[15] When assessing the claimed consequences it is not necessary for the court tobe satisfied that such consequences are inevitable, however, there must be a real andappreciable risk that any given consequence will happen.8Did the District Court Judge err in his assessment of the gravity of the offending?[16] Reliance was placed on further details of how the offending came about.Mr Yuan had been out drinking when attending a social function in centralQueenstown to farewell a friend. It was submitted that the influence of alcohol andthe pressure of friends had clouded his judgement and he made a foolish decision onthe spur of the moment to drive. He was described as being in a state of panic at thetime he was stopped. His difficulty with the breath testing procedures were said tohave been the result of language difficulties and not understanding the police'sprocesses.[17] However, none of those circumstances have any material bearing on the gravityof the offending, and most are commonplace in offending of this type. They do notalter the seriousness of Mr Yuan's high blood alcohol reading. The fact that Mr Yuanonly drove a short distance before being stopped and that there were no injuries ordamage to property simply represent the absence of further aggravating features.Driving offences engage public safety, and when a driver's alcohol limit is more thanminimally above the permissible limit the offender's conduct must be viewed asdangerous and socially unacceptable.9[18] Ms Surrey also referred to personal mitigating factors relating to such thingsas Mr Yuan's age, his guilty plea, and otherwise good character, but these were allmatters taken into account by the District Court when assessing the circumstances ofthe offending and the offender and the seriousness of Mr Yuan's conduct. I do notconsider Judge Walker's categorisation of the offending as being of moderate to highseriousness can be challenged.8 Singh v Police [2020] NZHC 368 at [29] citing Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [34]; and Alshamsi v Police HC Auckland CRI-2007-404-62, 15 June 2007at [20].9 Dennis v Police [2016] NZHC 1768 at [19]; Franks v Police [2013] NZHC 3556 at [13];Simmonds v Police [2014] NZHC 2488 at [27]; Linterman v Police [2013] NZHC 891 at [9]; andAylwin v Police [2008] NZSC 113, [2009] 2 NZLR 1 at [17].Did the District Court Judge underestimate the consequences of a conviction?[19] As noted, in addition to the potential impact on his immigration status andfuture visa applications, Mr Yuan also sought to rely upon possible employment andtravel ramifications. I do not, however, consider such general concerns advanceMr Yuan's argument. He is described as ultimately having an ambition to work in abusiness management role in New Zealand, although, as acknowledged, this wouldnot be for several years. Mr Yuan was only in New Zealand for the purpose ofstudying English. While a conviction for drink driving may present as an impedimentto a person's general employment prospects, in the absence of an offender being ableto identify a particular opportunity or occupation that is being put at risk from aconviction, such a concern will generally not be sufficient.10[20] Similarly, a general concern regarding the potential impact of a criminalconviction on travel will have little influence. Mr Yuan does not have any definitivetravel plans beyond remaining in New Zealand or travelling to Australia, and noinformation was provided as to how the entry of a conviction for drink driving maybar him from entering other countries. These possible employment and travelconsequences were accurately described by Judge Walker as non-specific andspeculative. They are of little weight.[21] The most acute potential consequence for Mr Yuan arises from the potentialeffect of a conviction on his immigration status. In his affidavit before the DistrictCourt, Mr Yuan advised that he was currently engaged in a 44-week course, andintended undertaking further study to learn English, before hoping to study businessmanagement.[22] Mr Yuan made reference to the Immigration New Zealand website that advisesthat if a person is convicted of an offence carrying a penalty of three months or moreimprisonment, he would need a character waiver in order to obtain any further visasto allow him to remain in New Zealand.10 An example of the former case is Amstad v Police HC Auckland CRI-2011-404-161, 6 September2011, where the 19 year old appellant had completed a year long course to assist his entry into theArmy, and had the support of an Army careers recruiter, would have been barred from joining themilitary if convicted of unlawfully taking a motor vehicle.[23] The immigration consultant confirmed that he would have to meet characterrequirements for any temporary or residential visa application. It was noted that aconviction would mean that he would highly likely be considered a high risk applicantand that a robust investigation would be carried out in order to evaluate whether hecould be considered to be of good character. Mr Yuan would need to provide extensivesubmissions and evidence to show why a character waiver would be warranted.[24] Based on the material before him, I do not consider Judge Walker erred in hisidentification and assessment of the consequences of a conviction for Mr Yuan. Heaccurately reviewed the information provided by the immigration consultant, that aconviction would put at risk Mr Yuan's chances of being able to obtain any furthervisas, before observing that the prevailing view of the Courts is that it is moreappropriate for the relevant authorities to assess and determine the immigration issuesarising as a consequence of a conviction.[25] While there is no general rule, the courts have been reluctant to pre-empt thedecision-making processes of the various immigration bodies and tribunals, lest theyusurp the role of those charged with resolving immigration questions arising from theconsequences of offending.11 While each case must be assessed on its individualmerits, it will be relatively rare for the risk of deportation by itself to be considered asa disproportionate consequence of being convicted for drink driving.[26] Ms Surrey sought to rely upon the approach taken by the Court of Appeal, inRahim v R, that involved a decision to decline an application to discharge a recentimmigrant from Pakistan without conviction. However, the key consideration in thatcase was the real and appreciable risk of the appellant being separated from his wifeand child that were residing in New Zealand if required to leave the country as a resultof his conviction.12[27] Other decisions have also recognised that where deportation of an offender willcause serious harm to a defendant's family that may justify a discharge without11 Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011 at[14]; and Ho v R [2016] NZCA 229.12 Rahim v R [2018] NZCA 182.conviction.13 However, that is not the situation with Mr Yuan. He has no family nordependents in this country. He is a single man whose only tie with the country is hispresence here to study English in Queenstown.Are the consequences of a conviction out of all proportion to the gravity of theoffending?[28] In addressing whether the consequences of a conviction were out of allproportion to the gravity of the offending, the additional evidence that Mr Yuan waspermitted to adduce on his appeal must be taken into account.[29] After the entry of his conviction, Mr Yuan was contacted by ImmigrationNew Zealand. Mr Yuan was advised that his offending put him in breach of the termsand conditions of his temporary visa and that, under s 157 of the Immigration Act2009, he could be made liable for deportation because he now has a criminalconviction. Mr Yuan discussed his situation with an immigration officer. It wasagreed that if he was willing to make arrangements for a voluntary departure that,because of the development of COVID-19 in China, he could remain in New Zealandto complete his English language course that was scheduled to finish in late May. Hisvisa was due to expire at that time.[30] Mr Yuan was informed that after he leaves the country he would be free toapply for another visa should he wish to return, but that he would have to declare hisconviction. Subsequently, with the development of COVID-19 in this country, and therestrictions imposed on movement and association in response to the pandemic,Mr Yuan, as with other temporary visa holders, was granted an extension to remainuntil 25 September 2020.14 His studies have, however, presently been suspended dueto the lockdown.[31] Despite having contravened the terms of his existing visa by committing thedrink driving offence, as events have turned out, Mr Yuan has retained the opportunityto complete his present course of study and he will be able to remain in the country to13 See Singh v Police [2019] NZHC 417; Kovalic v Police [2019] NZHC 1214; R v Tang [2019]NZHC 2056; Sunda v Police [2019] NZHC 756; and Chand v Police [2017] NZHC 2188.14 Immigration Act 2009, s 78.the end of his student visa which has now been extended. He also has the opportunityto apply for another visa to re-enter the country, albeit only after fulfilling hisobligation to voluntarily depart at the end of his present student visa. He will have todeclare his conviction at that time.[32] While it is now clear that Mr Yuan will have to leave the country, unlike at hissentencing, it is also clear that he will be permitted to remain in the country until theend of his visa and not until 25 September. He was always going to have to leave thecountry if his application for another visa was unsuccessful, and now at least he hasthe opportunity to complete his course (should it reopen), which was unknown at thetime he made his application for a discharge in the District Court. On balance, hisposition, while different, is not materially worse than it was when his application wasdeclined. I, like Judge Walker, am not satisfied the statutory threshold has been metto enable the Court to exercise its discretion..[33] I do not consider that the Judge erred in either assessing the mitigating factorsas they related to the gravity of Mr Yuan's offending, nor do I consider the Judgewrongly assessed the consequences of a conviction, as they were known at the time,by underestimating their severity. Having factored in the recent developments,detailed in Mr Yuan's supplementary affidavit, and examined the issue afresh, I do notconsider that the circumstances of Mr Yuan's case give rise to consequences that areout of all proportion to the gravity of his offending.Result[34] It follows that the appeal must be dismissed.Solicitors:Macalister Todd Phillips, Queenstown for AppellantCrown Solicitor, Invercargill for Respondent