ZHU v R [2021] NZCA 254

ZHU v R [2021] NZCA 254 [18 June 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA721/2020[2021] NZCA 254BETWEEN YEQING ZHUAppellantAND THE QUEENRespondentHearing: 12 May 2021Court: Miller, Venning and Peters JJCounsel: G J Newell for AppellantZ A Fuhr for RespondentJudgment: 18 June 2021 at 12.00 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] Mr Zhu appeals a District Court decision declining him a discharge withoutconviction on two charges, one of operating a vehicle in a race, thereby causing death,1and another of failing to stop and ascertain whether anyone had been injured2 after themotorcyclist he was racing crashed. He says that if not discharged he will facedeportation to his home country, China, and resulting family separation.1 Land Transport Act 1988, ss 36A(1)(a) and 36A(3).2 Section 36(1)(c).[2] Judge Paul thought these consequences likely but did not find them whollydisproportionate to the gravity of the offending, which he considered serious.3He sentenced Mr Zhu to 12 months' home detention and ordered him to pay $10,000in emotional harm reparation.4Narrative facts[3] At about 11.20 pm on 23 February 2019, Mr Zhu was driving his Audi on theEllerslie-Panmure Highway in the Auckland suburb of Mount Wellington. He stoppedat an intersection where he was adjacent to a motorcycle ridden by Mr Jacob Chase.When the lights changed both machines accelerated heavily, travelling in excess of theposted speed limit of 50 km/h. As they crested a moderate rise side-by-side, theyencountered a car which was making a right turn across their lanes. Mr Chase'smotorcycle struck that car, throwing him onto the roadway. He died several hourslater from his injuries.[4] Mr Zhu did not stop. He drove home. When interviewed some time later hedenied racing or travelling faster than the speed limit. He explained that he saw themotorcycle crash in front of him but did not stop as he wanted to get home.[5] Mr Zhu has lived in New Zealand since 2012 and he owned the Audi, but hehas never held a New Zealand driver's licence.[6] His first appearance was 4 October 2019. He elected trial by jury. He pleadedguilty on 31 August 2020, after a sentence indication, and was sentenced on24 November 2020. The delay is attributed to a change in counsel and the COVID-19lockdown.3 R v Zhu [2020] NZDC 24242 [Sentencing notes] at [14]–[15].4 At [19].The sentencingThe pre-sentence report[7] The pre-sentence report recorded that Mr Zhu was aged 29 and identified asChinese. He lives with his wife, whom he married in 2018, and her parents. His ownparents remain in China. He and his wife have a one-year-old son, and he has adaughter from a previous relationship. It appears that she lives in New Zealand withher mother but he has no contact with her. The author of the report found Mr Zhuremorseful and recorded that he had accepted responsibility for his offending, forwhich he offered no excuse.Victim impact[8] Seven victim impact statements were filed. They spoke to the great lossexperienced by Mr Chase's whānau and their perception both that Mr Zhu had behavedin a callous manner by leaving the scene and that he demonstrated no remorse.It appears that both sides had been willing to participate in restorative justice but thatcould not be arranged. Mr Zhu had offered $10,000 emotional harm reparation.Previous infringements[9] It was not in dispute that Mr Zhu had been issued three infringement noticespreviously, two for speeding and one for driving with excess alcohol. He has noprevious convictions.Evidence of immigration consequences[10] Mr Zhu and his wife, Shiyuan Xiang, filed affidavits. He deposed that he haslived in New Zealand for eight years and considers it his home. He came toNew Zealand on a student visa but now runs short-term accommodation businesses.He has held a residence class visa since 14 February 2017. Were he to be deported hewould have to separate from his wife and son. She deposed that she has lived inNew Zealand since September 2014 and wishes to raise the couple's son, who is aNew Zealand citizen, in this country. She is happily married but is not prepared toreturn to China with her husband. She relies on his income.[11] An expert immigration lawyer, Peter Moses, filed an affidavit deposing to theimmigration consequences of a conviction for these offences. He has worked in theimmigration field since 1999, initially as a Refugee Status Officer with theNew Zealand Immigration Service, now Immigration New Zealand, (INZ) and since2002 in private practice. He is now a senior practitioner in the field.[12] Mr Moses deposed that if convicted Mr Zhu would become liable todeportation.5 In that event, INZ will investigate the matter if informed of theconviction by the police (or anyone else) and will prepare a briefing paper for theMinister of Immigration (or a delegate), who will decide whether to order that adeportation liability notice be served. Deportation is not inevitable; the Minister (ordelegate) may cancel Mr Zhu's liability to deportation.6 If the matter is investigatedMr Zhu will be given an opportunity to provide any information relevant to theexercise of the discretion to cancel deportation liability. The liability may besuspended for a number of years on condition that Mr Zhu not reoffend.7 The Minister(or delegate) will carefully consider whether to suspend deportation liability where aconvicted offender has immediate family lawfully and permanently in New Zealandand they would be unable or unwilling to leave New Zealand with the offenderfollowing deportation.[13] However, in Mr Moses's opinion Mr Zhu's prospects of persuading theMinister (or delegate) to suspend deportation liability are very small because theoffending is serious. If (as subsequently happened in this case) the sentence imposedfell short of imprisonment, such as a sentence of home detention, there would remaina small chance that deportation liability would be suspended, but Mr Moses consideredthat chance would be below 50 per cent.[14] Mr Moses explained that if a decision is made to deport Mr Zhu he may appealto the Immigration and Protection Tribunal on humanitarian grounds.8 It is not anappeal against the correctness or reasonableness of the Minister's decision to deport.5 Immigration Act 2009, s 161(1)(b).6 Section 172.7 Section 172(2).8 Section 206(1)(c). An appeal on the facts is not available to a resident whose liability fordeportation arises under s 161: see s 201. Mr Zhu must show exceptional humanitariancircumstances making it unjust or unduly harsh to deport him: s 207.In Mr Moses's opinion such an appeal has only small prospects of success — less than50 per cent — notwithstanding the length of time that Mr Zhu has spent inNew Zealand and his family nexus to this country. That is so because the humanitariancircumstances must be exceptional.9 If it were otherwise it would be practicallyimpossible to deport a large proportion of criminal offenders who are by statute liableto deportation. Accordingly, there is in his opinion a real and appreciable risk thatMr Zhu will be deported.[15] The Crown did not resist admission of Mr Moses's evidence or file evidencein opposition.The sentencing[16] Judge Paul recounted the facts and Mr Zhu's circumstances. He found theoffending serious:10You made a deliberate decision to engage in a street race at excessive speeds.The consequence of driving at excessive speed is known to any road user andthat is the potential for harm and ultimately death which is what occurred here.In my view your failure to remain, your failure to meet your ownresponsibilities to report the crash really aggravate the gravity of theoffending. I do not lose sight, Mr Zhu, of your willingness to attendrestorative justice, your ability to pay reparation to the deceased's partner andthe fact that you ultimately have pleaded guilty and undertaken somerehabilitative steps but when balanced against the seriousness of youroffending I am not persuaded it is moderate. It must be serious and certainlyat the high end in terms of gravity.[17] The Judge accepted that Mr Zhu will now be at risk of deportation, but did notfind that consequence disproportionate:[15] I accept that the consequences for you being a residence holder is nowyou will be subject to a deportation from this country but like the Crown, itseems to me that consequence was wholly predictable where a person is onlythe holder of a residence visa. When you choose to get behind the vehicle ofa high-powered motor car, when you choose to deliberately race on a publicroadway at high speeds with the potential for harm and ultimately a fatality,those choices will have consequences and the consequence to you althoughgrave in my view is not out of all proportion to the seriousness of youroffending. Accordingly, I decline your application for a discharge today.9 Section 207.10 Sentencing notes, above n 3, at [14].[18] The Judge then sentenced Mr Zhu. He adopted a starting point of three and ahalf years' imprisonment, having regard to the aggravating factors of racing at speed,Mr Chase's death, and the "reprehensible" failure to stop.11 He allowed discounts of20 per cent for ultimately pleading guilty, five per cent for the emotional harmreparation, 10 per cent for previous good character, and five per cent for willingnessto attend restorative justice. The end result was a sentence of imprisonment ofapproximately two years, which the Judge converted to 12 months' home detention oneach charge.12 Mr Zhu does not say that sentence was manifestly excessive.Seriousness of the offending[19] Mr Newell argued that the Judge erred in his assessment of gravity of theoffending; he failed to take into account mitigating factors such as the guilty plea,previous good character, offer of reparation and remorse, and Mr Chase's contributingpart in the offending.[20] In our view the Judge did take these matters into account, except the last, to anappropriate extent. The sentencing calculation demonstrates that. As to Mr Chase'sundoubted share of fault, we accept that a victim's conduct may mitigate culpabilityin sentencing generally.13 But there is little room for that principle here. The offenceunder s 36A of the Land Transport Act 1998 is that of operating a motor vehicle in arace and by that act or omission causing the death of another person. Causation is anelement of the offence, and the person killed need not be an innocent bystander.We add that in this case an innocent road user was placed at serious risk. The offenceof failing to stop and ascertain injury attracts a maximum of five years' imprisonment,and an offence under s 36A carries a maximum penalty of ten years' imprisonmentwhere someone has died. The maximum penalties signal that these are intrinsicallyserious offences where death results.[21] Overall, we think the Judge was right to characterise the offending in this caseas serious. The racing was impromptu, but there are two significant aggravatingfactors apart from Mr Chase's death. One is Mr Zhu's failure to stop. The other is that11 At [16].12 At [19].13 Sentencing Act 2002, s 9(2)(c).he had chosen to own and operate a car over a long period without obtaining a licenceto drive it. His driving infringement history contributes to the impression that he hasexhibited a poor attitude to compliance with rules of the road.[22] There would ordinarily be no question of a discharge without conviction in thiscase. Discharges are normally granted for offences that are not intrinsically serious,or offending that is not a serious example of its kind, and offenders who exhibitsignificant personal mitigating features.14 In more serious cases it is often difficult topoint to consequences of conviction that are out of all proportion to the offending'sgravity.Consequences of conviction[23] That brings us to what are said to be immigration consequences of convictionin Mr Zhu's case. Because he holds a residence class visa his liability to deportationarises as a matter of law under s 161(1)(b) of the Immigration Act 2009, which applieswhen the offence is one for which a court has power to imprison for two years or moreand it was committed not later than five years after the visa was first obtained. Itfollows that Mr Zhu's liability to deportation is a consequence of conviction. Putanother way, were he granted a discharge he would no longer face that risk. We alsoaccept that the conviction will likely lead to an INZ investigation.[24] The position is otherwise when it comes to the issue of a deportation liabilitynotice or a decision to suspend liability under s 172 on conditions. Mr Moses acceptsthat in either case Mr Zhu will have an opportunity to account for himself and explainhis family circumstances. An adverse decision is not inevitable.[25] The Court has recently considered the question of causation in Sok v R,concluding that a conviction may be an indirect cause of a consequence that willhappen only in the event that a third party, such as an immigration officer, makes adecision in which the conviction is relevant.15 Such a causal connection may suffice14 See for example Rahim v R [2018] NZCA 182; Kumar v Police [2015] NZHC 3293; Jeon v Police[2014] NZHC 66. See also George v Police [2014] NZHC 1725, where the Court denied adischarge without conviction due to the gravity of the offending and lack of mitigating factors.See generally G Hall Hall's Sentencing (online loose-leaf ed, Lexis Nexis) at [SA106.1].15 Sok v R [2021] NZCA 252 at [42].under s 107 of the Sentencing Act.16 However, it is not always enough to show thatbut for conviction a given consequence would not happen. Causation is a question ofsubstance and degree, requiring judicial judgement. Where satisfied that immigrationdecision-makers will consider the circumstances that are said to justify a discharge,including the gravity of the offending and the offender's personal circumstances,courts usually reason that the outcome is a consequence of the offending, rather thanthe conviction.17[26] This is such a case. Mr Moses's evidence is careful and balanced. We find ithelpful to the extent it explains relevant immigration processes. We do not find itnecessary or helpful to estimate how likely it is that a deportation liability notice willissue. If a notice issues it will be the product of a process in which Mr Zhu's conductand circumstances, including the fact that he has admitted committing the offencesand his family nexus to New Zealand, are examined on their merits.The balancing exercise[27] We do not find the liability to deportation that results from Mr Zhu's convictiona consequence that is out of all proportion to the gravity of the offending, which wehave found serious for the reasons mentioned at [21] above.[28] We accept that once liable to deportation Mr Zhu is at risk of being served witha deportation liability notice, which in turn may lead to deportation. However, we donot accept that these are consequences of conviction. They are consequences of theoffending, which will be considered by immigration decision-makers along with hispersonal and family circumstances.[29] For these reasons Mr Zhu cannot point to consequences of conviction thatwould be out of all proportion to the gravity of his offending.16 At [43].17 At [47].Decision[30] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent