Zhang v Police [2017] NZDC 21528 (20 September 2017)

Last Updated: 11 April 2018

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS]

IN THE DISTRICT COURT AT NORTH SHORE

CRI-2017-044-003074

[2017] NZDC 21528

DI ZHANG Appellant

v

NEW ZEALAND POLICE Respondent

Date:	20 September 2017
Appearances:	Sergeant G Holiday for the Prosecutor P Finau for the Defendant
Judgment:	20 September 2017

ORAL JUDGMENT OF JUDGE J C DOWN

[1] Di Zhang is charged that on 30 April of this year he operated a vehicle carelessly and caused injury to [the victim]. He made an application to the Community Magistrate, L M Nathan, on 17 July of this year seeking a discharge without conviction. She declined to discharge Mr Zhang, entered a conviction and imposed what she considered to be the appropriate penalties.

[2] I am told that subsequently Mr Zhang has paid the full reparation of $1500 and Court costs. He was also disqualified for a period of six months and it appears that no other penalty was imposed, such as a fine.

DI ZHANG v NEW ZEALAND POLICE [2017] NZDC 21528 [20 September 2017]

[3] Mr Zhang, through counsel, appeals that decision and I must approach this appeal on the basis of a re-hearing of the arguments given that this is an appeal, effectively, against conviction and sentence.

[4] The facts of the case are that on 30 April Mr Zhang was the driver of a vehicle, a car, in Pakaraka. It was his own vehicle and he was travelling along a straight stretch of road on State Highway 10, heading towards the junction of State Highway 10 and State Highway 1 in Pakaraka. [The victim] and his son, were driving their car and were stationary at that junction, looking to turn into State Highway 10 from State Highway 1. It is estimated the defendant was travelling somewhere between 60 and 80 kilometres per hour and did not notice the intersection ahead. Braking too late for that junction his car went out of control into a skid and collided heavily with the victim’s car.

[5] By any reading of the facts of this case this is a serious incident and could have been far more serious. The prospect of Mr Zhang heading directly out into a busy highway, State Highway 1, at 7.20 pm in the evening does not bear thinking about. In some senses [the victim’s] car being present at the junction prevented a much more serious event taking place.

[6] I must assess the gravity of this offending based on what he did not what might have happened but I have to say that my initial judgement is that this is a serious example of careless driving causing injury. Although in the summary of facts the injuries describe a sore neck and side there is an unsigned victim impact statement which suggests that the complainant suffered whiplash and lost a significant amount of time off work as a result of this accident. Also, his young son was injured in the accident.

[7] Careless driving causing injury carries with it a maximum penalty of three months’ imprisonment or a fine of up to $4500. As an example of this offence the facts of this case, on their face, are serious.

[8] In assessing the gravity of offending however the Court must have regard to more features other than just the maximum penalty. The Community Magistrate, it is

said, erred in applying the test under s 107 Sentencing Act 2002 by not taking into account all the mitigating features when making an assessment of gravity.

[9] I agree with counsel that on the face of it that part of the exercise was not considered carefully enough. Community Magistrate Nathan makes a general assessment that all offending on the roads is of moderate seriousness because of the danger that it presents to the public. I accept that this is too general a statement or judgment and requires a more nuanced consideration of the circumstances of this offence.

[10] As I have indicated I have concluded that this is a serious example of the charge of careless driving causing injury. As such the danger that this caused to the public and the actual injuries and damage caused by the appellant’s actions should not be underestimated.

[11] Having said that there are a number of mitigating features that must be taken into consideration. In particular Mr Zhang’s guilty plea, his previous good character, his remorse and willingness to undertake restorative justice, the defensive driving course that he has completed and the fact that he has obtained a full licence.

[12] In being told of that I questioned what type of licence Mr Zhang had at the time of the accident. It turns out that not only did he not exercise appropriate care and control of his vehicle on that day but he was in fact unsupervised. There was another person in the car; that person though was only on a restricted licence and was therefore not qualified to supervise Mr Zhang, who was on a learner’s licence. I am told that the reason that he drove was because his passenger, became tired and they both considered it was safer if he, the appellant, drove. That is, in my judgement a significant aggravating feature.

[13] I accept that Mr Zhang has done all that he can to mitigate the harm caused by his offending, including the paying of reparation and the defensive driving training. I am satisfied that the risk to the public is somewhat reduced by virtue of that course and the remorse that Mr Zhang has shown. In the end I come to the conclusion that this offending could be characterised as moderately serious.

[14] The next stage of the test that must be applied by the Court is an assessment of the direct and indirect consequences of conviction. Mr Zhang is not a citizen of New Zealand nor is he a permanent resident and that, despite the fact that he has been in this country since 2011. In six years he has either not been able to or has not sought permanent residence. He is currently on a working visa. His concern is that if he is convicted of this charge, his application for permanent residency is likely to be hampered or perhaps unsuccessful. If that were the case then he argues that he would be deported.

[15] Deportation is a strong word. It is an action taken by the authorities when a person has overstayed their visa and been required by those authorities to leave. It often results in a short period of incarceration and forceful removal from the country. If Mr Zhang wishes to remain in New Zealand he can, and I anticipate will, make an application for permanent residency. If that application is successful then he can remain. If it is not then he, as a law abiding citizen, will make the decision to leave the country before his current visa expires. Stating that Mr Zhang will be deported I believe overdramatises the situation that he faces.

[16] There is a line of authority from the High Court which on the one hand clearly states that it is the responsibility of the Courts of New Zealand to assess the test in s

106 and s 107 rather than abdicating that responsibility and passing it on to immigration authorities. On the other hand there is a line of authority recognising the reality that in many cases it is more appropriate to allow that authority to make the decision as to whether a person should remain in New Zealand or not. Both arguments can be made strongly by counsel or by the prosecutor.

[17] The information that has been filed with this appeal, includes a letter from an immigration lawyer setting out his belief that if Mr Zhang is convicted of this offence then he will face hurdles in obtaining permanent residency or indeed, on a short term basis, renewing his work visa.

[18] I accept that conviction will lead to Mr Zhang having to deal with that process. The question for the Court is whether that consequence, which seems to me to be clear, far outweighs the gravity of the offending. It should be clear from what I said

previously that I do not consider that deportation is a likely consequence, direct or indirect, of conviction. I do however accept that difficulty in renewing his work visa or applying for permanent residence will result. But conviction for this offence does not, in my judgement, present a bar to him making such application.

[19] Plainly there are potential consequences for Mr Zhang of conviction. The question for the Court is whether those potential consequences far outweigh the gravity of the offending. I have already assessed the offending as moderately serious and presenting a real danger to the public, to other road users. Given that assessment I come to the conclusion that the potential consequences, direct and indirect, do not far outweigh the gravity of the offending. Although there may be some deficits in the way that the test has been expressed by the Community Magistrate in the end I conclude that she reached the right decision. The appeal is dismissed.

J C Down

District Court Judge