Kupriianova v Police - [2022] NZHC 1306

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000391

[2022] NZHC 1306

BETWEEN
ELENA KUPRIIANOVA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 1 March 2022

Appearances:

S Taghavi for the Appellant

A Mackenzie for the Respondent

Judgment:

3 June 2022

JUDGMENT OF DUFFY J

This judgment is delivered by me on 3 June 2020 at 11am.

.....................................................
Registrar / Deputy Registrar

Counsel: S Taghavi, Barrister, Active Legal Solutions, Auckland Solicitors: Meredith Connell, Auckland

ELENA KUPRIIANOVA v NEW ZEALAND POLICE [2022] NZHC 1306 [3 June 2022]

[1] Elena Kupriianova was convicted of driving with excess breath alcohol causing injury1 in the North Shore District Court by Judge Sinclair on 18 August 2020. She was sentenced to seven months’ home detention from a starting point of two years, two months’ imprisonment. She was also disqualified from holding or obtaining a driver licence for 28 days from 18 August 2020. At the end of this disqualification she was required to apply for an alcohol interlock licence.

[2] Ms Kupriianova immigrated to New Zealand from Russia in 2012. She currently holds a resident visa issued on 2 March 2017. The conviction puts Ms Kupriianova at risk of being deported according to s 161 of the Immigration Act 2009. New Zealand Immigration has paused the deportation procedures pending the outcome of this appeal.

[3] Ms Kupriianova appeals against conviction and sentence, seeking discharge without conviction. Her appeal relating to discharge without conviction was initially advanced on two bases. First, on the ground that at sentencing, through defence counsel error, she did not apply for a discharge without conviction under s 106 of the Sentencing Act 2002. Second, she contends that had such an application been advanced it would have had a reasonable chance of success. Thus, a miscarriage of justice has occurred.

[4] A joint memorandum of counsel dated 22 February 2022 records that it is accepted Ms Kupriianova was advised by her trial counsel that discharge without conviction was “not an option” in her circumstances. The parties agreed that it was no longer necessary to decide the first ground, because if a discharge would have succeeded, trial counsel’s advice was necessarily wrong, and if it would not have, then no miscarriage of justice has occurred. The joint memorandum requests this Court to determine the s 106 discharge matter afresh rather than remitting the matter to the District Court. This Court has jurisdiction to determine the matter of discharge without conviction afresh despite it not being before the District Court at first instance.2

1 Land Transfer Act 1998, s 61(1)(a); maximum penalty 5 years’ imprisonment or $20,000 fine.
2 Bedford v R [2021] NZCA 395.

[5] Ms Kupriianova also appeals against the sentence of home detention on the ground it was manifestly excessive. If the appeal against conviction and sentence in relation to discharge is unsuccessful, she seeks a sentence of community detention, adjusted to take into account that she had served one month…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NZHC 1306
Decision Date: 3 June 2022

CaseChat Overview and Summary

Elena Kupriianova appeals her conviction and sentence for driving with excess breath alcohol causing injury, arguing for a discharge without conviction and a reconsideration of her sentence. The appeal was initially based on two grounds: the failure of her trial counsel to apply for a discharge without conviction, and the assertion that such an application would have had a reasonable chance of success, resulting in a miscarriage of justice. The court accepted the joint memorandum of counsel, which stipulated that if a discharge would have succeeded, the trial counsel's advice was necessarily incorrect, and if it would not have, no miscarriage of justice occurred. The court thus had jurisdiction to determine the matter of discharge without conviction afresh.

The court examined the mitigating and aggravating factors of the offence, including the high level of alcohol in her system, her use of a mobile phone while driving, and the injury caused to the victim. The court considered the potential consequences of a conviction on Ms Kupriianova’s immigration status, particularly the risk of deportation. Despite the expert evidence indicating a significant risk of deportation, the court determined that there was not a real and appreciable risk that the New Zealand Immigration Service would deport Ms Kupriianova, given the peculiar circumstances and her family ties to New Zealand. Consequently, the court dismissed the appeal against conviction, seeking a discharge without conviction.

Regarding the sentence appeal, the court rejected the argument that the starting point of two years, two months’ imprisonment was inappropriate, considering the circumstances of the offence. The court found that the sentence was within the range of available sentences and was not manifestly excessive. The new evidence presented by Ms Kupriianova, which reflected positively on her character and conduct post-offence, did not alter the court’s view on the sentence. Thus, the appeal against sentence was also dismissed.

The final orders of the court were to dismiss both the appeal against conviction and the appeal against sentence.

Orders