Yan v Police - [2017] NZHC 1435

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CRI-2017-404-000132

CRI-2017-404-000133 [2017] NZHC 1435

IN THE MATTER OF an appeal against sentence

BETWEEN

TO YAN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 19 June 2017

Counsel:

P J Kaye for the Appellant

G A Barkle for the Respondent

Judgment:

27 June 2017

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 27 June 2017 at 11.30 am, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

YAN v NZ POLICE [2017] NZHC 1435 [27 June 2017]

Counsel: P J Kaye, Auckland

Solicitors: Meredith Connell, Auckland

Introduction

[1] Mr Yan appeals against his sentence of 16 months’ imprisonment for the following charges:

(a)Two charges of driving while suspended or revoked (third or subsequent);1

(b)One charge of driving while suspended or revoked;2

(c)One charge of possession of a class A drug (methamphetamine);3

(d)One charge of possession of utensils;4

(e)One charge of driving while impaired.5

[2] The appeal originally extended to a second one month cumulative sentence imposed for other driving and drugs charges. The appeal grounds advanced also included an error by the District Court Judge in not imposing home detention, and a failure to apply the full 25 per cent discount for the guilty pleas.

[3] However, by the time of the hearing, the appeal grounds had narrowed. The appeal was only advanced in respect of the first sentence of 16 months’ imprisonment, and is confined to claims that the starting point adopted was too high and the uplifts were excessive.

1      Land Transport Act 1998, ss 32(1)(c) and 32(4). Maximum penalty two years’ imprisonment or a fine not exceeding $6,000.
2      Land Transport Act 1998, ss 31(1)(c) and 32(3). Maximum penalty three months’ imprisonment or a fine not exceeding $4,500.
3      Misuse of Drugs Act 1975, ss 7(1)(a) and 7(2). Maximum penalty six months’ imprisonment.
4      Misuse of Drugs Act 1975, ss 13(1)(a) and 13(3). Maximum penalty one year’s imprisonment.
5      Land Transport Act 1998, s 57A(1). Maximum penalty three months’ imprisonment or a fine not exceeding $4,500.

The offending

[4] The charges relate to two separate sets of offending. The first set occurred in April 2016. Mr Yan was charged with driving whilst suspended (third or subsequent) on 18 April 2016. This was his seventh offence of this nature. On 27 April 2016, he was charged with driving whilst suspended. It appears that it was an oversight that he was not charged with the more serious third or subsequent offence at this time, because this was the eighth charge of this nature.

[5] The second, and more serious, set of offending occurred on 31 August 2016. Mr Yan was stopped by police due to his erratic driving. He was charged with driving as a suspended driver (third and subsequent) – his ninth such offence. Subsequent testing revealed the presence of methamphetamine in his blood, and he was charged with driving while impaired. Mr Yan was also found to be in possession…

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 Yan v Police

Details

AGLC: Yan v Police [2017] NZHC 1435
Case: [2017] NZHC 1435
Decision Date: 27 June 2017

CaseChat Overview and Summary

The appellant, Mr Yan, appealed against his sentence of 16 months' imprisonment, which was imposed for multiple charges including driving while suspended or revoked, possession of methamphetamine, and driving while impaired. The court considered the appeal in light of the appellant's extensive criminal history, which included numerous driving and drug-related convictions. The appeal was primarily focused on the argument that the starting point for sentencing was too high and that the uplifts applied for previous convictions were excessive. The court assessed the starting point by considering the number of charges, the recency of the offending, and the degree of recidivism. It was determined that a starting point of 10 months for the most recent charge was appropriate, with uplifts applied for the other charges, resulting in a total starting point within the range of 16 to 18 months. The court concluded that the sentence imposed by the District Court was not manifestly excessive and dismissed the appeal.

The legal issues the court had to decide included whether there was a material error in the sentence imposed by the District Court and whether the starting point for sentencing and the uplifts were appropriate. The court examined the principles for setting a starting point for multiple charges of driving while disqualified or suspended, considering both the approach of setting a starting point for the index offence and uplifting it for prior charges, and the approach of setting a starting point that reflects the degree of recidivism. The court found that the District Court judge's starting point of 20 months was within the appropriate range, and the adjustments made were not in error. The court held that there was no basis to interfere with the sentence imposed by the District Court, and the appeal was dismissed.

Orders