Police v Jing [2019] NZDC 13792 (16 July 2019)

Last Updated: 1 August 2022

IN THE DISTRICT COURT AT AUCKLAND I TE KŌTI-Ā-ROHE KI TĀMAKI MAKAURAU

CRI-2018-004-008806 [2019] NZDC 13792

NEW ZEALAND POLICE Prosecutor

v

JIANQIAQO JING Defendant

Date of Ruling:	16 July 2019
Appearances:	K Bailey for the Prosecutor S Wimsett for the Defendant
Judgment:	16 July 2019

RULING OF JUDGE A J FITZGERALD [ON S 106 APPLICATION]

[1] Jianqiaqo Jing, you have pleaded guilty to a charge of threatening to cause grievous bodily harm on 2 October 2018. The victim was someone with whom you had a business relationship and you needed him to sign a document in relation to work that he had completed for you. The victim has a partner who was present at the time you visited the property and the couple have a young daughter, aged three.

[2] You arrived at their place at about 10.15 pm and knocked on the front door. There was an argument between you and the victim and during that you said, “This time I came with my fists, next time I will bring a knife and I will kill you, I know where you live, you can’t get away.”

NEW ZEALAND POLICE v JIANQIAQO JING [2019] NZDC 13792 [16 July 2019]

[3] You seek a discharge without conviction, which I can only grant if I am satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending. The first thing I need to do is assess the gravity of the offending.

[4] The charge itself is a serious type of charge, carrying a maximum penalty of seven years’ imprisonment. However, my focus must be on the particular circumstances of the offending, rather than what the maximum penalty is, although as Mr Wimsett has said, there is some relevance about the maximum penalty, which I will return to later.

[5] Aggravating features of the offence are that you had gone to the victim’s home, a place where he and his family should be able to feel safe and secure. The threat was specific and it included the continuing threat that you would come back, which it seems has had the effect of leaving the victims afraid and insecure in their home. And again, I will return to say more about that shortly.

[6] I do not accept the assessment that the gravity of the offending here is low. It starts within the medium range, given those aggravating features that I have mentioned. That starting point though it is reduced due to several things. First by your guilty plea. I note that you initially pleaded not guilty to the charge in January but the plea of guilty was entered in March. You have got no previous convictions, although you were discharged without conviction for careless driving in 2009.

[7] It is clear from all of the information that has been provided that you have worked hard to establish yourself here in New Zealand since moving here from China in 2007. That includes gaining qualifications in cooking, food preparation and hospitality. You are highly regarded by past employers, have received awards for your work as a chef and you now work in the construction industry and you have got two full-time staff and several subcontractors. You are in a committed marriage; your wife is here supporting you today and you have bought a home. You are also an accomplished Thai kickboxer, having previously fought professionally, although you now participate recreationally.

[8] You have also participated in a restorative justice meeting, which was held very recently, on Sunday 14 July. The report of that meeting records the victims’ ongoing stress and fear as a result of the incident. They were aware that you are a kickboxer and the victim’s wife says that she thought that you were going to give the victim a hiding. They remain scared of you. It says that the victim has struggled to sleep since the incident and in the build-up to the meeting. The record of the meeting includes observations by the facilitator that the victims were physically shaking in the meeting and wanted to be reassured their family would be safe.

[9] The outcomes of the meeting did include a verbal apology, which you made and also a written apology, a copy of which has been provided today. As well as that, it was recorded that you would complete 40 hours’ community work with Transitioning Out Aotearoa. Also, there is reference to a protection order being made against you in favour of the victim, but it has been clarified during discussions today that I do not have the power to make such an order.

[10] You are entitled to credit for all those things that I have mentioned, and also for the offer that has been made today to pay emotional harm reparation in the sum of between $500 and $1000.

[11] The major consequence of a conviction for you is the risk of deportation. If you are convicted you will be liable for deportation. Immigration New Zealand would be notified and the deportation protocol would be invoked. You would be given the opportunity to satisfy the minister or the officials representing the minister in the process, that there are good reasons why you should not be deported, despite the conviction. What constitutes good reasons is decided then on a case-by-case basis. If it is decided deportation should proceed against you, you have got the right of appeal to the Immigration and Protection Tribunal.

[12] Mr Wimsett has explained that because the maximum penalty for the charge that you face is more than two years’ imprisonment, those processes are triggered. They would not have been if the charge you were facing was a less serious one, carrying a maximum penalty of less than two years’ imprisonment.

[13] The third issue is whether those consequences are out of all proportion to the gravity of the offending. There is a line of authorities from Higher Courts saying that it is not appropriate for the Court to effectively usurp the role of immigration authorities in situations such as this. As the High Court said in the case of Solicitor General v Mohib1:

This was not a case where convictions would necessarily lead to deportation. Rather, convictions were likely to trigger a process, which might have that consequence, but where that consequence was not inevitable Parliament has entrusted the immigration authorities with the obligation to consider whether persons convicted of offending ought to be allowed to remain in New Zealand. It is the function of the immigration authorities to make that decision, considering all relevant matters.

[14] The relevant matters would of course include all of those things that count in your favour, which I have touched on. Although I accept the submission that there are significant consequences for you if a conviction is entered and in fact that it could be argued that those consequences are out of proportion to the gravity of the offending, in my assessment they are not out of all proportion to the gravity of the offending. That is a very high test and it is not met in this case.

[15] So your application to be discharged without conviction is declined. The Provision of Advice to Courts report that was provided by Probation for the sentencing today, recommended community work. Giving you credit for all of the factors that I have referred to already, that recommendation I am satisfied is sufficient to satisfy the purposes and principles of sentencing.

[16] And so you are convicted and sentenced to 40 hours of community work. If that can be done as an agency placement at Transitioning Out Aotearoa, I will leave it to Corrections to see that is done. But that really is a matter I will leave in their hands.

A J FitzGerald District Court Judge

1 Solicitor General v Mohib [2016] NZHC 1908 at [56]