She was sentenced in the District Court to 17 months imprisonment, ordered to pay emotional harm reparation of $10,000 and disqualified from holding or obtaining a driver’s licence for three years.2 Ms Xiao appeals against her sentence. She contends the Judge erred in deciding not to impose home detention.

The circumstances

[2] Ms Xiao is a 27 year old visitor from China. She was in New Zealand on a one year working visa which was due to end on 6 July 2016. She holds a full Chinese driver’s licence, which entitled her to drive in New Zealand. She had never driven a vehicle on an open road, in a rural environment at speeds in excess of
50 km/h. By her own admission she is not a confident driver.

1 Land Transport Act 1998, s 36AA(1)(b). Maximum penalty 10 years imprisonment or a $20,000 fine.
2 R v Xiao [2016] NZDC 11043.

XIAO v NEW ZEALAND POLICE [2016] NZHC 1947 [19 August 2016]

[3] She and a friend, who was also from China, purchased a car in late January

2016. She says she had studied the Road Code and practised driving around town to ensure she was feeling confident.

[4] She and her friend planned to drive from the Napier area to Te Puke on 7

February 2016 to attend a work-site induction event. On 6 February 2016 she drove on the open road towards Waimarama Beach (a return drive of approximately one and half hours), with her friend as a passenger, to practice driving on the open road. Her passenger later described to the police that Ms Xiao was not slowing down for the corners and was turning sharply, and that it was not until she told Ms Xiao to slow down that she started to feel safe. For her part, Ms Xiao says she felt nervous and lacking confidence, but felt more confident on the return trip.

[5] On 7 February 2016 Ms Xiao and her friend embarked on the intended drive to Te Puke. Ms Xiao says she was not feeling confident but thought she would be able to drive to Taupo, and then rest, before travelling on to Rotorua, and then on to Te Puke. The road from Napier to Taupo is a windy road with a 100 km/h speed limit.

[6] At about 9.50am Ms Xiao and her passenger were driving along State Highway 5 through Eskdale making their way to Taupo. The weather was fine and the traffic conditions were moderate. Two occupants of a Toyota Corolla following Ms Xiao’s car later reported to the police that Ms Xiao’s…

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.

Continue reading Xiao v Police

Details

AGLC: Xiao v Police [2016] NZHC 1947
Case: [2016] NZHC 1947
Decision Date: 19 August 2016

CaseChat Overview and Summary

Jieling Xiao appeals against her sentence for dangerous driving causing death. Xiao was sentenced in the District Court to 17 months imprisonment, ordered to pay $10,000 emotional harm reparation, and disqualified from holding or obtaining a driver’s licence for three years. Xiao contends the District Court Judge erred in not imposing home detention. The legal issues before the court were whether the Judge erred in considering Xiao’s immigration status in declining home detention and whether the Judge erred in declining home detention on the basis of general deterrence. The court held the Judge did err in taking into account Xiao’s immigration status. The court held that the possibility of deportation is not to be taken into account when sentencing an offender. The court held the Judge did not focus exclusively on general deterrence in declining home detention. The court held the culpability of Xiao’s driving was not at the level which necessarily precluded home detention for general deterrence purposes. The appeal is allowed and the sentence of 17 months imprisonment is quashed. A sentence of nine months home detention and 150 hours of community work is substituted. The other orders made at sentencing in the District Court are confirmed.

Orders