YANG v R [2004] NZCA 188 (18 August 2004)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA51/04THE QUEEN

v

TIAN YAO YANG

Hearing: 23 June 2004

Coram: Glazebrook J Chisholm J Potter J

Appearances: C L Harder for Appellant
A R Burns for Crown

Judgment: 18 August 2004

JUDGMENT OF THE COURT DELIVERED BY POTTER J

[1] Tian Yao Yang appeals against conviction under s 86(1)(a) Crimes Act 1961 of being a member of an unlawful assembly. He also appeals against the sentence of $1,000 fine, or 14 days imprisonment if he failed to pay the fine within 14 days, imposed following conviction.
[2] The conviction under s 86(1)(a) followed trial by jury. The jury found the appellant not guilty of a charge of having an offensive weapon in a public place without lawful authority or reasonable excuse.

Grounds of appeal

[3] The appeal against conviction focuses on the definition of “unlawful assembly” under s 86(1)(a), and a submission that the Judge misdirected the jury as to that definition in relation to the facts of this case.
[4] The appeal against sentence is on the grounds that the sentence is manifestly excessive, that the rider of imprisonment represents sentencing disparity, that this was an appropriate case for a discharge without conviction given the appellant’s co-operation with the Police and the consequence that a conviction will result in his student visa being revoked.

Background

[5] On Sunday 18 November 2001 there was an altercation at the Kiss Bar on Karangahape Road. Two members from a gang of young Asian males (Group A) were allegedly assaulted by members of another gang of young Asians (Group B).
[6] During the early hours of Monday 19 November 2001 members of Group A were at a party at the Kiss Bar. At around 2 a.m. some 20 or more members of Group B, including the appellant, held a meeting some distance away at Victoria Park. They armed themselves with pieces of wood and metal bars and made a plan to go to the Kiss Bar and confront members of Group A regarding the previous night’s incident. The appellant was provided with a piece of wood.
[7] The appellant travelled to the bottom of East Street by car along with other members of Group B. They then walked up East Street to Karangahape Road carrying their weapons (although the sentencing Judge accepted that the appellant left his piece of wood behind).
[8] Group B assembled at the corner of East Street and Karangahape Road and called on members of Group A to come outside. A member of Group A came out of the bar and walked across the road to confront Group B. He was armed with a knife and attempted to strike a member of Group B.
[9] Members of Group B, including the appellant, then ran back to their cars and left the scene, during the course of which three members of Group A were struck by these vehicles. Two were injured and one was killed. No one from Group B called for or offered assistance to the people that were injured.

Conviction Appeal

Section 86(1)(a) Crimes Act

[10] The offence of unlawful assembly is defined by s 86(1)(a) of the Crimes Act 1961 as follows:

An unlawful assembly is an assembly of three or more persons who, with intent to carry out any common purpose, assemble in such a manner, or so conduct themselves when assembled, as to cause persons in the neighbourhood of the assembly to fear, on reasonable grounds, that the persons so assembled –

(a) Will use violence against persons or property in that neighbourhood or elsewhere; . . .

Submissions for the appellant

[11] Mr Harder for the appellant submitted that the appellant’s conduct amounted only to “mere presence” at the scene of the incident which fell short of the threshold required for unlawful assembly.
[12] Counsel referred to the case of R v Wolfgramm [1978] 2 NZLR 184 (CA) as authority for the proposition that “mere presence” is insufficient to meet the statutory requirements for unlawful assembly. In that case Woodhouse J stated at p.187:

Unlawful assembly in itself is an elusive concept. Its concern is not merely with actual but also likely disturbances of the peace; and it involves the potential as well as the immediate effects of the assembly on persons in the neighbourhood. Because the offence is one of being an actual member of an assembly that is unlawful, the persons concerned must have knowingly associated or identified themselves with it so as to be part of it. It is for that reason that physical presence alone cannot be enough as was mentioned in the Flaws case. There must be a shared intent to carry out the common purpose.

[13] He submitted that the appellant did not share the common intent of the members of Group B and was only “merely present” at the scene of the incident, and that he actively disassociated himself from the members of that group. This was evidenced by his abandoning the weapon (a piece of wood) given to him by a friend who was one of the members of Group B. He “lagged behind” the members of Group B and did not want to fight. He was only a bystander who was merely present at the scene.
[14] He further submitted that in taking a “wider approach” to the definition of unlawful assembly, the Judge misdirected the jury, which resulted in the jury returning an erroneous verdict. Consequently, submitted Mr Harder, the appellant’s conviction should be quashed and he should be acquitted on the grounds that his actions and involvement did not meet the requisite standards for the offence of unlawful assembly.

Submissions for the Crown

[15] Mr Burns for the Crown accepted that in terms of s 86(1)(a) and the definition of “unlawful assembly”, the Crown must prove that the accused was part of the common purpose and part of the assembly. However, he submitted, there was no requirement to prove that the accused was the, or a main, offender.
[16] He submitted that the appellant’s claim that he was a “mere bystander” is not supported even on the facts that the appellant himself admits. These are:

1. The appellant assembled with the group;
2. The appellant was aware of a plan to confront members of an opposing group, with whom there had previously been friction resulting in violence;

100. The appellant was aware that members of the other group might have weapons and that members of the group he was with were carrying weapons;

4. The appellant moved with the assembled group to the location where the confrontation was to occur. He stood within five metres of the assembled group until an altercation erupted.
5. The appellant ran from the scene of the altercation with the group.

[17] Mr Burns submitted that on the basis of those facts alone, not only was the appellant physically present but he was part of the common purpose. It is immaterial whether he intended to be at the forefront or at the back of the activity, whether he was involved only because he did not want to offend his friends, or whether he wanted to fight or not.
[18] Mr Burns referred to the judgment in R v Flaws (CA61/74 and CA62/74, 11 October 1974) (referred to in the passage from the judgment in R v Wolfgram cited at para [12]), where, he submitted, arguments identical to those raised by the appellant, were rejected by the Court.
[19] In Flaws the Court stated at pp 5-6:

[W]henever persons in a group assemble for a shared common purpose and act in support of one another in such a way that reasonable citizens fear a breach of the peace, that assembly becomes unlawful. At the latest on the evidence, such a situation developed with the arrival of the vehicles and their occupants at the car park. The association of each appellant with those occupants and their conduct in moving into the main street was clear evidence of wilful participation.

Discussion

[20] On the basis of the evidence, the common purpose in this case was, at the least, for the members of Group B to gather and confront members of Group A armed with various items of weaponry. In pursuit of that common intention Group B members assembled at Victoria Park, then moved as a group by car to East Street, and then on foot to Karangahape Road. There they assembled outside the Kiss Bar where they expected to find members of Group A gathered, as indeed they did.
[21] It is difficult to resist the inference that Group B intended to fight since they armed themselves, and anticipated that the members of Group A would be armed. The Crown quoted a relevant extract from the appellant’s statement to the Police (p 18):

We got out of the cars and had a meeting, a short talk. Nathan and Jackie and Ma Jun said take care everyone, they may have weapons. They also said that we should hide the weapons, and not to carry them up in our hands. I didn’t have anywhere to hide my piece so I just put it under the front left hand side of the car we drove up in. The others hid their pieces of wood in their clothing.

[22] But at the least, Group B intended to confront Group A in a public place, namely the street outside the Kiss Bar, armed with weapons. The facts clearly establish that Group B assembled in a way that would:

... cause persons in the neighbourhood of the assembly to fear on reasonable grounds that the persons so assembled – will use violence ...

[23] Mr Yang was deliberately and intentionally part of Group B. He travelled to Victoria Park to join the group. He accepted the piece of wood handed to him, although he left it behind before progressing from East Street to Karangahape Road, because, he said, he could not hide it as instructed by other members of the group. He knew that members of his group were armed and he knew they believed members of Group A would be armed. He proceeded with the group to Karangahape Road and he was with the group when the altercation occurred. He then ran from the scene, again with the group. Mr Yang was no “mere bystander” or “straggler” who by chance happened upon the scene unintentionally and unwittingly. He intended to be there, and to be there as part of Group B.
[24] This assembly was clearly unlawful. In terms of the statement quoted from Flaws at paragraph [19] above, Group B had assembled for the common purpose of confronting Group A and they acted in support of one another in such a way that reasonable citizens would fear a breach of the peace.
[25] Mr Harder contended that in his summing up the learned trial Judge did not adopt the correct approach to the definition of unlawful assembly, preferring instead a “wider view” which would include mere bystanders or stragglers as part of the group. Mr Harder had taken no notes of the summing up, in particular as relevant to the submission he made, but he did not believe that following the summing up he raised any objection as to the manner in which the Judge directed the jury on the definition of unlawful assembly, nor did the Crown.
[26] Since the hearing we have been provided by the District Court with a copy of the summing up to the jury by Judge Lance and have received further submissions from both counsel. The Judge directed the jury:

[21] What are the three elements the Crown must prove. There are three. And I remind you, the Crown must prove these three elements beyond reasonable doubt. First, that there was an assembly. That is, a gathering of at least three people. Second, that those people had a common purpose. Third, that those people came together in some way or, once together, behaved in such a way that other people in the vicinity feared, on reasonable grounds, that the group would use violence against people or property or that they would heedlessly and without proper cause provoke other people to use violence against persons or property. So those are the three elements the Crown have to prove beyond reasonable doubt.

[22] Can I just help you by expanding a little on that and I go back to the assembly. So the Crown must prove the three or more people in a group. And although there must be three in the group they do not all need to be before the Court. You have heard, already, that a number of people were charged with various offences arising out of this incident. The fact that that has happened is of no relevance to your deliberations at all. But each accused – the Crown must prove – must have been a willing participant in the conduct complained of. So mere passive presence is seen as insufficient.

[23] The word ‘bystander’ has been used. You can imagine you might go along to a meeting and it turns ugly. Well if you disassociate yourself from that then you are not part of that assembly – a bit like Mr Harder’s rather colourful analogy of issuing you all with a bottle of beer and one of you not taking up the invitation. So the Crown have got to prove that the accused were willing participants of this assembly.

[27] It is clear that the Judge directed the jury that the Crown must prove that the appellant was a willing participant of the assembly, distinguishing that level of participation from the position of a mere “bystander”. We are quite satisfied that the Judge correctly directed the jury in relation to the definition of unlawful assembly.
[28] We have also been able to confirm from the transcript of the Judge’s summing up, that no counsel raised any objection on this aspect of the Judge’s summing up when provided by the Judge with the opportunity to do so at the conclusion of his summing up.
[29] However, in his supplementary submissions, Mr Harder raised a different point in relation to para [45] of the summing up.
[30] This paragraph is part of the Judge’s summary of the defence case. He introduced this section of his summing up, with the words:

It is my duty to summarise the cases that were put to you by each of the accused’s counsel. ... Well you have heard it all within the last hour or two.

Then at para [45] he said:

Mr Harder was very short, and identified very quickly and clearly, the defence. As far as Mr Yang is concerned his defence, insofar as the unlawful assembly charge was concerned, is that he was not part of it. And he said the evidence was that he was away from the group – some five metres (15 feet) – and I think Mr Harder used the expression “was a straggler”. Well that is an evidentiary matter entirely for you to decide whether that is so or not. But what you have got to remember is the Crown have to prove beyond reasonable doubt that he was. It is not for Mr Harder or his client to prove that he was not. And Mr Harder also said that the Crown had failed to prove that there was any common purpose insofar as Mr Yang was concerned.

[31] Mr Harder contended that the Judge introduced confusion and ambiguity by saying:

But what you have got to remember is the Crown have got to prove beyond reasonable doubt that he was. It is not for Mr Harder or his client to prove that he was not.

[32] He submitted that:

It raises the very real possibility of a misunderstanding on the part of the jury with regard to the issue of whether or not the appellant was in fact a “straggler”.

[33] We do not accept that submission. The Judge was clearly referring to the appellant’s defence, “... that he was not part of it”. He correctly directed that that was an evidentiary matter for the jury to decide. Then he reaffirmed, again correctly, that the burden of proof was on the Crown to prove that the appellant was “part of it”.
[34] The Judge’s reference to Mr Harder’s submission that the appellant “was a straggler”, was in the context of the evidentiary matter the jury would have to decide. Again, his direction was correct.
[35] The appeal against conviction must therefore be rejected.

Sentence appeal

District Court sentencing

[36] His Honour noted that one of the golden principles of sentencing is parity and that it is wrong for a Court to impose different sentences on different people where the circumstances are not sufficiently distinguishable. He noted advice from Crown counsel that eleven people were charged, nine pleaded guilty, and on all were imposed fines ranging from $750 to $1500. He also received advice that all those convicted had been required to leave New Zealand.
[37] He did not accept the submission by counsel for the appellant that a conviction would be out of all proportion to the gravity of the offending. He considered that this was relatively serious offending by a relatively large group of young persons behaving in an extremely disorderly way, that the confrontation was premeditated, planned, and at least in the early stage the appellant went along with it, armed with a weapon in a circumstance where there was likely to be significant violence.
[38] The Judge declined an application by counsel to defer the sentencing to enable the appellant to complete his educational course.
[39] He noted relevant factors under the Sentencing Act as being the necessity to impose a sentence that would denounce such conduct and deter others.
[40] He accepted a submission from counsel that the appellant had limited involvement, that he distanced himself to the extent of not taking his weapon up into Karangahape Road, and that he was somewhat distant from the main body of the group. He accepted that the appellant had been co-operative with the Police and had given a genuine apology. He accepted the appellant’s previous good character and absence of criminal convictions and noted that since conviction he had undertaken voluntary work.
[41] He then referred to the aggravating features: that there was here a real potential for violence and that the offending was planned and premeditated.
[42] In balancing the appellant’s offending against that of other offenders he recorded that while he did not have the benefit of the sentencing notes in respect of the other offenders, he assumed that the sentencing Judges would have discounted the appropriate sentence for the pleas of guilty, but that was not available to the appellant.
[43] He concluded that a fine of $1500 would be appropriate taking into account all relevant factors, but in acknowledgement of the voluntary work the appellant had contributed since conviction, he reduced the fine to $1,000 to be paid within 14 days. If not paid, he imposed a term of imprisonment of 14 days.

Submissions for the appellant

[44] Mr Harder submitted that the effect of a conviction, being that the appellant’s student visa would be revoked and he would be forced to leave New Zealand, outweighed the seriousness of his offending. His involvement in the unlawful assembly, if any, was limited, and he co-operated with the Police including testifying against other accused. He urged, therefore, that if the Court was not prepared to quash the conviction, a discharge without conviction should be entered.
[45] He further submitted that the rider requiring payment of the fine within 14 days and in default 14 days imprisonment was unduly harsh and inconsistent with other sentences imposed. He advised the Court, however, that the fine had been paid within 14 days of sentence.

Submissions for the Crown

[46] Mr Burns emphasised that the Court exercises a discretion under s 106 of the Sentencing Act which provides as follows:

Discharge without conviction

(1) If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
[47] He referred the Court to the guidance provided by s 107:

Guidance for discharge without conviction

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[48] He quoted from Heath J in Police v Devereux (AO3/02, 27 June 2002):

The provisions of s 107 of the Sentencing Act 2002 (which comes into force next week) require an offender to establish that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. That would need to be affirmatively proved, in the case of disputed facts by evidence, as a condition precedent to the Court exercising jurisdiction to discharge without conviction. Such is the effect of the mandatory requirement contained in s 107 of the sentencing Act 2002.

[49] Counsel submitted that the sentencing Judge was correct to place little weight on the question of the appellant’s immigration status, immigration questions being governed by separate processes which include their own checks and balances. The offence of unlawful assembly is reasonably serious, carrying a maximum sentence of one years imprisonment and, counsel noted, in the circumstances of this case violence did erupt as the result of the assembly, the very outcome which the offence of unlawful assembly is designed to prevent.
[50] Counsel further submitted that the Judge in exercising his discretion considered all relevant principles and that his decision to decline to grant a discharge without conviction cannot be categorised as plainly wrong. Questions of parity and the need for deterrence were relevant considerations to which the Judge gave due weight.

Discussion

[51] We accept the submissions made by the Crown.
[52] While the Court has a discretion under s 106, it is one to be exercised sparingly (Police v Roberts (1997) CRNZ 197 (CA)).
[53] The Judge had the benefit of full submissions from both Mr Harder for the appellant and the Crown. In careful sentencing notes he considered all relevant factors. He appropriately took into account the appellant’s co-operation with the Police as a mitigating factor, but that is not a factor which would bring the sentence within the parameters of s 106. He took into account, again appropriately as a mitigating factor, the appellant’s apology, his previous good character, absence of any previous criminal convictions, and that the appellant had undertaken voluntary work. He accepted that the appellant had distanced himself from Group B by not taking a weapon with him and by being distant in relative terms from the main body of the group. But the appellant was not entitled to a discount for a guilty plea and the Judge correctly recognised that in considering the requirement of parity in sentencing.
[54] While the withdrawal of his student visa may be a consequence of conviction, in all the circumstances of this case it is not such that would justify discharge without conviction.
[55] We conclude that the District Court Judge was not plainly wrong in the exercise of his discretion under s 106. Indeed we consider he correctly exercised that discretion in the circumstances of this case.
[56] The appeal against sentence is rejected.

Result

[57] The appeal is dismissed.

Solicitors:
Crown Solicitors, Auckland