Zhu v R [2021] NZCA 254 (18 June 2021)

Last Updated: 22 June 2021

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA721/2020 [2021] NZCA 254

	BETWEEN	YEQING ZHU Appellant
	AND	THE QUEEN Respondent

Hearing:	12 May 2021
Court:	Miller, Venning and Peters JJ
Counsel:	G J Newell for Appellant Z A Fuhr for Respondent
Judgment:	18 June 2021 at 12.00 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

• [1] Mr Zhu appeals a District Court decision declining him a discharge without conviction on two charges, one of operating a vehicle in a race, thereby causing death,^[1] and another of failing to stop and ascertain whether anyone had been injured^[2] after the motorcyclist he was racing crashed. He says that if not discharged he will face deportation to his home country, China, and resulting family separation.
• [2] Judge Paul thought these consequences likely but did not find them wholly disproportionate to the gravity of the offending, which he considered serious.^[3] He sentenced Mr Zhu to 12 months’ home detention and ordered him to pay $10,000 in emotional harm reparation.^[4]

Narrative facts

• [3] At about 11.20 pm on 23 February 2019, Mr Zhu was driving his Audi on the Ellerslie-Panmure Highway in the Auckland suburb of Mount Wellington. He stopped at 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 the posted speed limit of 50 km/h. As they crested a moderate rise side-by-side, they encountered a car which was making a right turn across their lanes. Mr Chase’s motorcycle struck that car, throwing him onto the roadway. He died several hours later from his injuries.
• [4] Mr Zhu did not stop. He drove home. When interviewed some time later he denied racing or travelling faster than the speed limit. He explained that he saw the motorcycle 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 he has never held a New Zealand driver’s licence.
• [6] His first appearance was 4 October 2019. He elected trial by jury. He pleaded guilty on 31 August 2020, after a sentence indication, and was sentenced on 24 November 2020. The delay is attributed to a change in counsel and the COVID-19 lockdown.

The sentencing

The pre-sentence report

• [7] The pre-sentence report recorded that Mr Zhu was aged 29 and identified as Chinese. He lives with his wife, whom he married in 2018, and her parents. His own parents remain in China. He and his wife have a one-year-old son, and he has a daughter from a previous relationship. It appears that she lives in New Zealand with her mother but he has no contact with her. The author of the report found Mr Zhu remorseful and recorded that he had accepted responsibility for his offending, for which he offered no excuse.

Victim impact

• [8] Seven victim impact statements were filed. They spoke to the great loss experienced by Mr Chase’s whānau and their perception both that Mr Zhu had behaved in 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 that could 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 notices previously, two for speeding and one for driving with excess alcohol. He has no previous convictions.

Evidence of immigration consequences

• [10] Mr Zhu and his wife, Shiyuan Xiang, filed affidavits. He deposed that he has lived in New Zealand for eight years and considers it his home. He came to New 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 he would have to separate from his wife and son. She deposed that she has lived in New Zealand since September 2014 and wishes to raise the couple’s son, who is a New Zealand citizen, in this country. She is happily married but is not prepared to return to China with her husband. She relies on his income.
• [11] An expert immigration lawyer, Peter Moses, filed an affidavit deposing to the immigration consequences of a conviction for these offences. He has worked in the immigration field since 1999, initially as a Refugee Status Officer with the New Zealand Immigration Service, now Immigration New Zealand, (INZ) and since 2002 in private practice. He is now a senior practitioner in the field.
• [12] Mr Moses deposed that if convicted Mr Zhu would become liable to deportation.^[5] In that event, INZ will investigate the matter if informed of the conviction by the police (or anyone else) and will prepare a briefing paper for the Minister of Immigration (or a delegate), who will decide whether to order that a deportation liability notice be served. Deportation is not inevitable; the Minister (or delegate) may cancel Mr Zhu’s liability to deportation.^[6] If the matter is investigated Mr Zhu will be given an opportunity to provide any information relevant to the exercise of the discretion to cancel deportation liability. The liability may be suspended 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 a convicted offender has immediate family lawfully and permanently in New Zealand and they would be unable or unwilling to leave New Zealand with the offender following deportation.
• [13] However, in Mr Moses’s opinion Mr Zhu’s prospects of persuading the Minister (or delegate) to suspend deportation liability are very small because the offending is serious. If (as subsequently happened in this case) the sentence imposed fell short of imprisonment, such as a sentence of home detention, there would remain a small chance that deportation liability would be suspended, but Mr Moses considered that chance would be below 50 per cent.
• [14] Mr Moses explained that if a decision is made to deport Mr Zhu he may appeal to the Immigration and Protection Tribunal on humanitarian grounds.^[8] It is not an appeal against the correctness or reasonableness of the Minister’s decision to deport. In Mr Moses’s opinion such an appeal has only small prospects of success — less than 50 per cent — notwithstanding the length of time that Mr Zhu has spent in New Zealand and his family nexus to this country. That is so because the humanitarian circumstances must be exceptional.^[9] If it were otherwise it would be practically impossible to deport a large proportion of criminal offenders who are by statute liable to deportation. Accordingly, there is in his opinion a real and appreciable risk that Mr Zhu will be deported.
• [15] The Crown did not resist admission of Mr Moses’s evidence or file evidence in opposition.

The sentencing

• [16] Judge Paul recounted the facts and Mr Zhu’s circumstances. He found the offending serious:^[10]

You 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 and that 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 own responsibilities to report the crash really aggravate the gravity of the offending. I do not lose sight, Mr Zhu, of your willingness to attend restorative justice, your ability to pay reparation to the deceased’s partner and the fact that you ultimately have pleaded guilty and undertaken some rehabilitative steps but when balanced against the seriousness of your offending I am not persuaded it is moderate. It must be serious and certainly at the high end in terms of gravity.

• [17] The Judge accepted that Mr Zhu will now be at risk of deportation, but did not find that consequence disproportionate:

[15] I accept that the consequences for you being a residence holder is now you will be subject to a deportation from this country but like the Crown, it seems to me that consequence was wholly predictable where a person is only the holder of a residence visa. When you choose to get behind the vehicle of a high-powered motor car, when you choose to deliberately race on a public roadway at high speeds with the potential for harm and ultimately a fatality, those choices will have consequences and the consequence to you although grave in my view is not out of all proportion to the seriousness of your offending. Accordingly, I decline your application for a discharge today.

• [18] The Judge then sentenced Mr Zhu. He adopted a starting point of three and a half 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 of 20 per cent for ultimately pleading guilty, five per cent for the emotional harm reparation, 10 per cent for previous good character, and five per cent for willingness to attend restorative justice. The end result was a sentence of imprisonment of approximately two years, which the Judge converted to 12 months’ home detention on each 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 the offending; 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 contributing part in the offending.
• [20] In our view the Judge did take these matters into account, except the last, to an appropriate extent. The sentencing calculation demonstrates that. As to Mr Chase’s undoubted share of fault, we accept that a victim’s conduct may mitigate culpability in sentencing generally.^[13] But there is little room for that principle here. The offence under s 36A of the Land Transport Act 1998 is that of operating a motor vehicle in a race and by that act or omission causing the death of another person. Causation is an element 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 offence of 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’ imprisonment where someone has died. The maximum penalties signal that these are intrinsically serious offences where death results.
• [21] Overall, we think the Judge was right to characterise the offending in this case as serious. The racing was impromptu, but there are two significant aggravating factors apart from Mr Chase’s death. One is Mr Zhu’s failure to stop. The other is that he had chosen to own and operate a car over a long period without obtaining a licence to drive it. His driving infringement history contributes to the impression that he has exhibited a poor attitude to compliance with rules of the road.
• [22] There would ordinarily be no question of a discharge without conviction in this case. 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 exhibit significant personal mitigating features.^[14] In more serious cases it is often difficult to point to consequences of conviction that are out of all proportion to the offending’s gravity.

Consequences of conviction

• [23] That brings us to what are said to be immigration consequences of conviction in Mr Zhu’s case. Because he holds a residence class visa his liability to deportation arises as a matter of law under s 161(1)(b) of the Immigration Act 2009, which applies when the offence is one for which a court has power to imprison for two years or more and it was committed not later than five years after the visa was first obtained. It follows that Mr Zhu’s liability to deportation is a consequence of conviction. Put another way, were he granted a discharge he would no longer face that risk. We also accept that the conviction will likely lead to an INZ investigation.
• [24] The position is otherwise when it comes to the issue of a deportation liability notice or a decision to suspend liability under s 172 on conditions. Mr Moses accepts that in either case Mr Zhu will have an opportunity to account for himself and explain his 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 will happen only in the event that a third party, such as an immigration officer, makes a decision in which the conviction is relevant.^[15] Such a causal connection may suffice under s 107 of the Sentencing Act.^[16] However, it is not always enough to show that but for conviction a given consequence would not happen. Causation is a question of substance and degree, requiring judicial judgement. Where satisfied that immigration decision-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 than the conviction.^[17]
• [26] This is such a case. Mr Moses’s evidence is careful and balanced. We find it helpful to the extent it explains relevant immigration processes. We do not find it necessary or helpful to estimate how likely it is that a deportation liability notice will issue. If a notice issues it will be the product of a process in which Mr Zhu’s conduct and circumstances, including the fact that he has admitted committing the offences and 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 conviction a consequence that is out of all proportion to the gravity of the offending, which we have 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 with a deportation liability notice, which in turn may lead to deportation. However, we do not accept that these are consequences of conviction. They are consequences of the offending, which will be considered by immigration decision-makers along with his personal and family circumstances.
• [29] For these reasons Mr Zhu cannot point to consequences of conviction that would be out of all proportion to the gravity of his offending.

Decision

• [30] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Land Transport Act 1988, ss 36A(1)(a) and 36A(3).

^[2] Section 36(1)(c).

^[3] R v Zhu [2020] NZDC 24242 [Sentencing notes] at [14]–[15].

^[4] At [19].

^[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 for deportation arises under s 161: see s 201. Mr Zhu must show exceptional humanitarian circumstances making it unjust or unduly harsh to deport him: s 207.

^[9] Section 207.

^[10] Sentencing notes, above n 3, at [14].

^[11] At [16].

^[12] At [19].

^[13] Sentencing Act 2002, s 9(2)(c).

^[14] 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 a discharge 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].

^[16] At [43].

^[17] At [47].