IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE	
CRI-2020-425-000018
[2020] NZHC 2761	

BETWEEN	LIANG FANG
Appellant	
AND	NEW ZEALAND POLICE
Respondent	

Hearing:	19 October 2020	
Appearances:	G P Tyrrell for Appellant
R W Donnelly for Respondent	
Judgment:	21 October 2020	

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 21 October 2020 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date…21 October 2020

Introduction

[1]	On 21 January 2020 at about 1.40 pm, Mr Fang was driving a tour bus on the Glenorchy-Queenstown Road. The bus had 22 passengers on board and was towing a large trailer containing the passengers’ luggage. Traffic was light, the road was dry, visibility was good and there  was  negligible wind.  Mr  Fang entered  a corner  at 17 km/h over the recommended speed limit. The trailer started to fishtail, eventually causing Mr Fang to lose control of the bus. It rolled onto its side and slid down a hill, seriously injuring four of the passengers.

FANG v NEW ZEALAND POLICE [2020] NZHC 2761 [21 October 2020]

[2]	Mr Fang was charged with four counts of careless operation causing injury.1 In a decision of 2 June 2020, Judge Strettell refused to grant him a discharge without conviction.2 The Judge instead convicted Mr Fang and sentenced him to 200 hours’ community work, nine months’ disqualification and reparation of $9,000.

[3]	Mr Fang now appeals the refusal to grant a discharge without conviction.

Relevant background

[4]	Mr Fang is a Chinese national who has resided in New Zealand since June 2016 under a work visa. He was employed as a tour bus driver by Awing Travel NZ Ltd and had been working for that company for one year at the time of the accident. The Glenorchy-Queenstown Road is an undulating twisting road that follows the northern shore of Lake Wakatipu. It has a number of tight corners. The accident occurred when Mr Fang  was  descending  into  Wilsons  Bay  from  Closeburn  and  approached two corners of the downhill run. The first corner is a gentle curve and has a speed advisory sign of 55 km/h. However, the second corner is a tight corner with a bend of approximately 90 degrees. It has a recommended speed limit of 45 km/h and is signposted accordingly.

[5]	As already noted, Mr Fang approached the second corner too fast and got into difficulty, causing the bus to roll onto its side and slide 40 m down the hill. During the rollover and slide, the occupants of the bus were thrown around the bus and some occupants received serious and life threatening injuries. In particular:

(a)	a 10 year old girl had one of her hands amputated and the other arm removed above the elbow; and

(b)	a 39 year old female had her right arm amputated below the shoulder.

Two   other  passengers  suffered  injuries  from  which  they  recovered.	All other passengers of the bus were extremely upset and some received minor injuries.

1	Land Transport Act 1998, s 38.
2	Police v Fang [2020] NZDC 9906.

[6]	Mr Fang said that he had driven the road many times before. He told police he entered the corner at 50 km/h.

District Court decision

[7]	Judge Strettell outlined the facts of the offending as well as Mr Fang’s explanation, which was that the advisory speed limit was posted only 100 m from the corner rather than 120 m as recommended by NZTA, meaning he failed to see the sign until too late, and that while manoeuvring around the corner he suffered from sunstrike. Despite that explanation, the Judge refused to accept the offending resulted from “momentary inattentiveness”.3 He classified it instead as a “continuing episode where there are several issues which independently of one another were careless”, including driving at a speed well above that recommended and failing to take the likelihood of sunstrike into account.4

[8]	In assessing the gravity of the offending, Judge Strettell noted this was not an unknown route for Mr Fang. His level of responsibility as a professional driver with a bus load of people was high. The Judge intentionally did not take into account the nature of injuries sustained, recognising that the seriousness of injuries does not necessarily correlate with the seriousness of the offending. He did take into account the post-accident actions of Mr Fang, including assisting injured persons, and his otherwise “blameless record”.5 The Judge nevertheless classified the gravity of the offending as serious.

[9]	Turning to the consequences of  conviction,  Judge  Strettell  accepted  that Mr Fang may be disqualified from holding his current visa and therefore deported, or may not be able to gain residency status in the longer term. The Judge found these to be potentially serious consequences, but ultimately considered the immigration authority was the appropriate body to make that decision having regard to the seriousness of the offending. He did not consider this was an appropriate case for a discharge without conviction and accordingly convicted Mr Fang on each of the   four charges.

3	At [14].
4	At [15].
5	At [19].

Principles on appeal

[10]	The Court may grant a discharge without conviction under s 106 of the Sentencing Act 2002 only if it is satisfied, under s 107, that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending.6

[11]	Appeals against the proportionality test under s 107 are by way of rehearing, with the appellate Court making its own assessment of whether the criteria are established.7 If a discharge without conviction should have been granted, then there will have been a material error by the sentencing Judge, or a miscarriage of justice will have occurred for any other reason, and so the appeal against conviction must be allowed.8

Leave to adduce fresh evidence

[12]	Mr Tyrell, for Mr Fang, seeks to admit a  further  affidavit of Mr Fang dated  1 October 2020 as fresh evidence on appeal. The affidavit attaches an email from Immigration New Zealand advising that if Mr Fang’s conviction is upheld he will be required to leave the country upon completion of his sentence. This is clearly fresh evidence. The affidavit  also clarifies some points in Mr Fang’s earlier affidavit of  19 May 2020, and provides further information about NZTA signage guidance as well as crash data for the relevant corner. Mr Tyrell accepts that this part of the further affidavit is not fresh evidence, but submits it is independent and credible, and that it is in the interests of justice that it be admitted.

[13]	Pursuant to s 335 Criminal Procedure Act 2011, new evidence may be admitted on appeal if it is fresh, credible and cogent.9 Evidence that is not fresh may nevertheless be admitted if it would be in the interests of justice to do so.10

6	Sentencing Act 2002, s 137.
7	H v R [2012] NZCA 198 at [35]–[36].
8	Criminal Procedure Act 2011, s 232(2)(b) or (c); and  Jackson v R  [2016] NZCA 627, (2016)  28 CRNZ 144 at [12].
9	Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [117]–[120]; and R v Bain [2004] 1 NZLR
638 (CA) at [22] and [26].
10	Lundy, above n 9, at [120].

[14]	The evidence in the affidavit regarding Mr Fang’s immigration status should his conviction be upheld is fresh, credible and cogent. Mr Tyrell accepts that the other evidence in the affidavit is not fresh. However, the respondent does not take issue with the admission of the affidavit in full and I accept that it is sufficiently credible and cogent to be admitted in the interests of justice.

Submissions

Appellant’s submissions

[15]	Mr Fang’s appeal is brought on two grounds. The first is that the Judge erred in his assessment of the seriousness of the offending, describing it as “serious” when it was properly classified as momentary inattention.11 The second is that the consequences for Mr Fang, which have now crystallised as a requirement to leave the country, are sufficiently severe that the threshold for granting a discharge without conviction is met.

[16]	Mr Tyrell contends the Judge erred in assessing the offending as “a continuing episode where there are several issues which independently of one another were careless”.12 While Mr Fang accepts he hit the corner at 17 km/h over the recommended speed, Mr Tyrell submits the Judge did not take into account his explanation that he only saw the 45 km/h sign when he was very close to the corner. His carelessness in failing to see the sign is mitigated, in Mr Tyrell’s submission, by the sign being too close to the corner and by its visibility being reduced by the similarly-coloured grass and flowers around it. The sunstrike as he came around the corner then undermined any opportunity Mr Fang had to recover. Mr Tyrell therefore categorises the carelessness as “momentary inattention” rather than a continuing episode.

[17]	In regard to the submission that the sign was too close to the corner, Mr Tyrell refers to the NZTA guidelines exhibited to Mr Fang’s May affidavit. The guidelines provide that where two curves are in close proximity and the first has a greater advisory speed than the second:

11	Police v Fang, above n 2, at [16].
12	At [15].

… both curves warrant signing, and [where] there is insufficient distance between the curves for separate signing, then erect a PW – 22 REVERSE CURVE sign displaying the curve advisory speed of Curve 2 in advance of Curve 1.

Mr Tyrell argues that if there was insufficient space to place the second sign at least 120 m from the curve (as recommended by NZTA guidelines) then the advisory sign for the second curve should have been at the first corner.

[18]	Mr Tyrell submits that the gravity of Mr Fang’s error was at the lowest end of the scale.

[19]	Since Judge Strettell’s decision,  Immigration  New  Zealand  has  notified Mr Fang that he is to leave the country on completion of his community work if his conviction is upheld. Mr Tyrell submits that consequence is disproportionate to the “degree of moral turpitude” involved in the offending.

[20]	Mr Tyrell recognises there is case law stating that judges should be slow to intervene in the statutory process of Immigration New Zealand, but submits this is a case where the Court should so intervene. He refers to Jeon v Police as an analogous example.13 The appellant in Jeon drove through a stop sign at about 30–40 km/h and hit a truck, causing moderate injuries to the truck driver and serious injuries to the appellant’s wife. Woodhouse J acknowledged that “as often is the case with driving offences, it was something which arose out of a moment’s inadvertence”.14 His Honour determined that was a case where the s 106 discretion should be exercised and the matter not be left for determination by immigration authorities.15

[21]	Mr Tyrell refers to several other cases where the Court has similarly granted a discharge without conviction due to the risk of deportation.16 He also notes Mr Fang’s experience in the tour industry, and suggests there is a likelihood that a conviction will impact on his chosen career in either New Zealand or China.

13	Jeon v Police [2014] NZHC 66.
14	At [12].
15	At [20]–[23].
16	Page v R [2020] NZHC 904; Sunda v Police [2019] NZHC 756; and Kumar v Police [2015] NZHC 3293.

Respondent’s submissions

[22]	Mr Donnelly, for the respondent, accepts that a court’s primary focus in assessing the gravity of offending must be on the culpability of the offender’s actions. However, he submits that does not mean the consequences of those actions are irrelevant. In support, he cites Rickerby v Police, where Anderson J made the following comment on the exercise of the discretion under the Land Transport Act 1998 to not disqualify an offender based on special circumstances:17
The legislature in referring to the circumstances of the offence plainly has in mind that the overriding consideration in these cases is the degree of carelessness, not the chance of the seriousness or otherwise of injury. This is not to say that injury will always be irrelevant. There may be circumstances where the degree of carelessness has been relatively minor but the consequences so disastrous that for policy reasons and in order to mark social concern at careless driving because of the potential seriousness of accidents that discretion should be exercised against an appellant.

[23]	In any event, Mr Donnelly notes that Judge Strettell was clearly alive to the need not to place too much weight on the injuries sustained, but he nevertheless found the offending to be serious.

[24]	Mr Donnelly submits that Mr Fang’s claim that the sign could have been better placed is diminished by the fact that he knew the road well, having driven it many times before. He adds that Mr Fang should have been more cautious, particularly given he was a professional driver who had responsibility for 22 other people aboard his vehicle. That responsibility heightened the seriousness of the carelessness, as found by the Judge.18

[25]	Mr Donnelly accepts that given the updated evidence about Mr Fang’s immigration status, there is a real and appreciable risk that he will need to leave  New Zealand if his conviction remains. However, he refers to Ho v R, where the Court of Appeal found the requirement to leave New Zealand does not in itself amount to a disproportionate consequence of conviction.19

17	Rickerby v Police HC Auckland AP263/95, 8 December 1995.
18	Police v Fang, above n 2, at [17].
19	Ho v R [2016] NZCA 229 at [15].

[26]	In regard to employment consequences, Mr Donnelly submits there is no evidence or detail in regard to this, and contends that a generalised difficulty in career prospects is insufficient to provide a firm basis for a discharge without conviction.

[27]	Overall, he submits the consequences of conviction are not out of all proportion to the gravity of the offending.

Analysis

Gravity of the offending

[28]	The first step in considering whether to impose a discharge without conviction is to determine the gravity of the offending. Mr Tyrell’s primary submission on this point is that while Mr Fang accepts he entered the corner at 17 km/h over the recommended speed, this was incorrectly described by the District Court Judge as “a continuing episode where there are several issues which independently of one another were careless”.20 In reality there was fleeting carelessness, which was mitigated in the circumstances by the position of the sign in the surrounds.

[29]	However, when considering the evidence, I do not see this as in the same category as cases involving momentary inattention on the road. As Mr Fang’s evidence confirms, the first bend was signposted as 55 km/h. From the map which Mr Fang has provided in evidence, the second bend is only some 200 m from the first bend. Even if the second advisory sign was only 100 m from the second bend, rather than the recommended 120 m, it seems Mr Fang either travelled through the first corner too fast, or failed to slow down adequately at the point he saw the second sign. It is not clear how the difference of 20 m in the sign’s placement from the corner could have materially contributed to the accident, when he should have already been travelling at a significantly reduced speed after negotiating the first bend.

[30]	It is also unclear how sunstrike could have played a part in the accident, given it was the height of summer and early afternoon when the accident occurred. Sunstrike is typically experienced in the morning and evening, particularly in winter months

20	Police v Fang, above n 2, at [15].

when the sun is at a low angle. In any event, Mr Tyrrell conceded that sunstrike was no longer pursued as a contributing factor to the accident itself. Rather, if Mr Fang did experience sunstrike, it was at a point where he had already lost control of the vehicle.

[31]	Similarly, Mr Fang’s explanation that the sign was the same colour as the grass or flowers around it makes little difference. He acknowledged that he saw the sign, and it is clear he either failed to slow down to the appropriate speed or was going at an excessive speed prior to seeing it so that he was unable to slow down.

[32]	In my view, nothing in the further evidence admitted really alters the view that Mr Fang was travelling too fast on a road which he knew to be winding, and where, travelling with a large vehicle and trailer, he needed to be particularly careful with his driving.

[33]	The gravity of the offending must also be weighed in light of the responsibility on Mr Fang as a professional driver with a bus carrying 22 passengers.   While      Mr Tyrrell resisted the suggestion that this was a relevant factor in assessing the gravity of the offending, I disagree. The standard is what a reasonably prudent driver would do in all the known circumstances. Here, the fact that he had a large vehicle with an attached trailer, and a large number of passengers inside, are factors which a reasonably prudent driver would take into account when negotiating this section of road. While the negligent course of conduct could probably be measured in a number of seconds rather than minutes, it was, in my assessment, more than a momentary lapse of attention causing an accident. It was a relatively serious departure from the standard of care expected.

Consequences of conviction

[34]	Judge Strettell considered the risk of deportation was a potential outcome that was “certainly, on the papers” faced by Mr Fang.21 Since his judgment, Immigration New Zealand has informed Mr Fang that if his conviction is upheld by this Court, he will be required to leave the country upon completion of his community work. I accept

21	At [22].

that outcome is now highly likely to occur, subject to a formal decision by Immigration New Zealand and Mr Fang’s rights of appeal.

[35]	Mr Fang also says the Court should take into account the more general impacts on his chosen career as a tour operator should he return to China. He says he was a team leader taking tours internationally for 10 years in China and he says a conviction would “definitely affect me to lead a team to enter many other countries”. He is concerned that a conviction would prevent him from having a similar job again, because it could stop him travelling to overseas countries, or at the very least, would require him to go through the process of having to apply for a visa or otherwise explain the circumstances of his conviction on each occasion.

[36]	However, I accept that this is generalised evidence which indicates that whether he is in New Zealand or China, there will be attendant difficulties in obtaining the right to travel to other countries with a conviction. I cannot conclude from this that it would be likely to prevent Mr Fang from working in the tourism industry.

Proportionality

[37]	The final stage of the test for a discharge without conviction is to determine whether the consequences of conviction would be out of all proportion to the gravity of offending.

[38]	Mr Tyrell accepts that the courts have generally found it appropriate for the impact of conviction upon immigration status to be determined  by Immigration  New Zealand rather than by the court.22 As Asher J said in Zhang v Ministry of Economic Development:23
There is nothing that requires the courts to intervene to try and impose their perception of what the right immigration consequences should be. That is best left to the immigration authorities. But a Court's assessment of culpability in the sentencing exercise may assist those authorities. And there will always be occasions where in a finely balanced case a discharge may be warranted on these types of grounds: R v Hemard.24 The case for discharge may not be so

22	See for example R v Foox [2000] 1 NZLR 641 (CA) at [39]; A (CA747/10) v R [2011] NZCA 328 at [30]; and Ho, above n 19, at [15].
23	Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011 at [14].
24	R v Hemard HC Christchurch T30/03, 11 April 2003 at [16].

strong where the details of the offending will be known and closely examined by the relevant authority in any event, than where the query will be only as to prior convictions, for instance in an application for professional certification.

[39]	Courts tend to be more reluctant to intervene when the outcome from the immigration authority cannot reasonably be predicted.25 However, that is not to say that a court must or should intervene when it is reasonably certain that deportation will occur.

[40]	In Mr Fang’s case, deportation is a serious consequence that appears almost certain to occur. I do not overlook the distressing impact of that outcome on Mr Fang. However, he is a single man, with family back in China, and I do not see the impact of returning to his homeland being as great as in some other cases which come before this Court. Furthermore, he could have no certainty that he would obtain a further work visa in New Zealand, so a return to China must always have been a possibility should his visa not be renewed.

[41]	Overall, I have reached a view that this is not a case where the gravity of the offending is so low that this Court  should  usurp  the  function  of  Immigration  New Zealand and make a determination as to whether deportation is  appropriate.  Mr Fang’s carelessness, in the face of the significant responsibility of driving a tour bus, was relatively serious.

[42]	I accept that the consequences of conviction for him are likely to go beyond that of other offenders. I also accept that this was an offence of carelessness rather than deliberate wrongdoing, and Mr Fang has otherwise led a positive and offence-free life in New Zealand. However, the balancing of those matters is for Immigration New Zealand including, potentially, through an appeal process. While the consequences for Mr Fang will be harsh compared with other offenders, I do not consider that they are out of all proportion to the gravity of the offending.

25	Rahim v R [2018] NZCA 182 at [29]; Jeon, above n 13; and Kumar, above n 16.

Conclusion

[43]	The appeal is dismissed.

Solicitors:
G P Tyrrell, Barrister, Christchurch Preston Russell Law, Invercargill