Yu v Police

[2021] NZHC 3000

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE WHANGANUI-A-TARA ROHE

CRI-2021-485-000044

[2021] NZHC 3000

BETWEEN

QIANWEN YU

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	29 October 2021
Appearances:	Y E Clarisse for Appellant N Azam for Respondent
Judgment:	8 November 2021
Reissued:	20 May 2022

JUDGMENT OF EATON J

This judgment was delivered by me on at pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

NOTE: This judgment is reissued in a corrected form pursuant to r 11.9 of the High Court Rules. Details of defendant’s  child  have  been  removed  from paras [6] and [7].

YU v NEW ZEALAND POLICE [2021] NZHC 3000 [8 November 2021]

Introduction

[1]    On 25 February 2020, the appellant, Ms Yu, appeared in the Hutt Valley District Court on a charge of driving with excess breath alcohol.1 She very briefly consulted  a duty solicitor before entering a guilty plea. The sentencing notes of Judge Tompkins record: “Convicted and sentenced to 80 hours’ community work, including the impaired drivers course. Disqualified from driving for six months from today.”2

[2]The sentencing was unremarkable.

[3]    On 19 January 2021,  the  appellant  received  notice  from  Immigration  New Zealand of a potential breach of a suspension condition that had been stipulated on a Suspended Deportation Liability Notice that had been made on 24 November 2016 in response to cannabis offending.3 On 13 May 2021 Ms Yu was served with a “Deportation Liability Notice-Reactivation”. The upshot of that notice is that if the conviction under appeal stands Ms Yu will have to leave New Zealand or be deported to China.

[4]    On 25 June 2021, the appellant filed a notice of appeal against conviction and sentence and now seeks an order pursuant to s 106 of the Sentencing Act 2002 that she be discharged without conviction.

[5]    The appeal was filed out of time after Ms Yu became aware of the immigration consequences of her conviction. The respondent does not take issue with the late filing of the appeal and leave to appeal out of time is granted in the interests of justice. I also grant leave for the filing of fresh evidence.

Background

[6]    In support of the appeal Ms Clarisse has filed affidavits from the appellant, her partner, Kharuhat Khanaphat, who is the father of her daughter, and expert evidence addressing immigration status and related consequences from Auckland barrister,

1      Land Transport Act 1998, s 56(1). Maximum penalty of three months’ imprisonment.

2      Police v Yu [2021] NZDC 11129.

3      See Immigration Act 2009, s 172.

Mr Peter Moses. Mr Azam, on behalf of the respondent, confirmed the New Zealand Police do not take any particular issue with the evidence filed on behalf of the appellant and elected not to file any evidence.

[7]    Ms Yu is a Chinese national who has held a New Zealand residence class visa since 5 April 2014. She has been living in New Zealand since February 2009 when she arrived as a 16-year-old to attend secondary school. She is now 28 years old. She is in a stable relationship with Mr Khanaphat who is originally from Thailand but has been a permanent resident in New Zealand since 24 February 2005. Their daughter was born in New Zealand. She is presently in the care of her maternal grandmother in China in response to concerns being raised by Oranga Tamariki as regards prior drug offending by the appellant and Mr Khanaphat. I accept that but for the restrictions on international travel imposed by Covid-19, their daughter would presently be living in New Zealand with her parents.

[8]    On 10 August 2016 Ms Yu was convicted of drug offences including possession of a cannabis pipe, procuring a drug and possession of cannabis for supply. She was sentenced to three months’ home detention and 100 hours’ community work. That conviction left Ms Yu liable to be deported. However, on 24 November 2016 Immigration New Zealand issued Ms Yu with a “Suspended Deportation Liability” for five years. That suspension was conditional on her not being convicted of any offence during the suspension period.

[9]    On 16 January 2020, Ms Yu was stopped at an alcohol checkpoint. Her breath alcohol level was 500 micrograms of alcohol per litre of breath. She appeared in Court on 25 February 2020. When first called the Judge encouraged her to speak with a duty lawyer as she was unrepresented. There followed a very brief consultation with a duty lawyer. In her evidence the appellant says, and I accept, there was no discussion as to her immigration status or of the possible consequences of a conviction. She was duly convicted and sentenced.

[10]   Almost 12 months later, on 19 January 2021, Ms Yu was served by Immigration New Zealand with a letter confirming a potential breach of her Suspended Deportation Liability Notice and on 13 May 2021 she was served with a “Deportation Liability

Notice-Reactivation”. Immigration expert, Mr Moses, has deposed that Ms Yu does not have a right to appeal to the Immigration and Protection Tribunal on humanitarian grounds. That right was lost when she did not appeal against her suspended deportation liability in November 2016. Mr Moses says Ms Yu is out of time to seek judicial review of the decision to re-activate her deportation liability and it is unlikely that leave will be granted.

[11]   The respondent accepts, that if the conviction for driving with excess breath alcohol is upheld, Ms Yu will be deported.

Principles on appeal

[12]   Section 232 of the Criminal Procedure Act 2011 provides that the High Court may only allow an appeal against conviction if satisfied that the trial judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason.” A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.4 For present purposes a trial includes a proceeding in which the appellant pleaded guilty.5

[13]   It will only be in exceptional circumstances that an appeal against conviction will succeed if the appellant has pleaded guilty.6 The Court of Appeal judgments Whichman v R and Richmond v R set out four broad categories where, despite a guilty plea, there can be a miscarriage of justice.7

[14]Relevant to the appellant is the fourth category in Richmond:8

… where trial counsel errs in his or her advice as to the non-availability of certain defences or potential outcomes. Counsel for example may act wrongly or negligently to induce a decision on the part of a defendant to plead guilty under the mistaken belief or assumption that no tenable defence existed or could be advanced.

4      Criminal Procedure Act 2011, s 232(4).

5      Section 232(5).

6      R v Le Page [2005] 2 NZLR 845 (CA) at [16].

7      Whichman v R [2018] NZCA 519 at [35]; and Richmond v R [2016] NZCA 41 at [16]–[17].

8      Richmond v R, above n 7, at [18].

[15]   The failure to apply for a discharge without conviction at first instance is not fatal to the resolution of this appeal on its substantive merits in these circumstances.9

District Court decision

[16]   The District Court Judge entered a conviction and imposed sentence.10 No reference was made to Ms Yu’s personal circumstances. There is no indication that the Judge considered s 11 of the Sentencing Act. That provision requires a sentencing Judge to consider discharging the defendant without conviction before entering a conviction and imposing a sentence.

Submissions

Appellant’s submissions

[17]   Ms Clarisse, for Ms Yu, submitted that a miscarriage of justice has occurred due to counsel error, namely the failure of the duty lawyer to advise Ms Yu about a discharge without conviction. Ms Clarisse relied upon the decision of Ellis J in  Grant v R11 where her Honour found that erroneous advice as to the non-availability of certain defences or potential outcomes must also logically encompass the erroneous absence of advice as to defences or outcomes that are available. Ms Clarisse submitted that Ms Yu’s case falls within the fourth category of miscarriage described by the Court of Appeal in Richmond.12

[18]   In support of an application for a discharge without conviction, Ms Clarisse submitted that the gravity of Ms Yu’s offending was at the lower end of moderately serious. Ms Yu’s breath alcohol level was 500 micrograms of alcohol per litre of breath. Ms Clarisse highlighted that Ms Yu was not pulled over for bad driving but as part of a roadside check.

[19]    As regards the consequences of conviction, Ms Clarisse distinguished Ms Yu’s case from others where risk of deportation following conviction was found to be a

9      O’Neill v Police [2020] NZHC 284; and Randhawa v Police [2016] NZHC 1909.

10     Police v Yu, above n 2.

11     Grant v R [2021] NZHC 1244 at [25].

12     Richmond v R, above n 7.

consequence of the offending, not the conviction. Ms Clarisse appropriately highlighted that there is no dispute in this case that the conviction will result in deportation. It was submitted that the likely consequences are out of all proportion to the gravity of the offence of driving with excess breath alcohol.

Respondent’s submissions

[20]   Mr Azam, for the respondent, did not accept that the threshold for miscarriage of justice under the fourth limb of Richmond was satisfied.13 He distinguished this case from the factual scenario in Richmond in that Ms Yu had previously experienced a criminal prosecution that had led to a Suspension of Deportation Liability process and she had not provided the duty lawyer with any instructions as regards the consequences of a conviction.

[21]   The respondent accepted that if I were to find a miscarriage of justice, there is no jurisdictional barrier to considering the merits of a discharge without conviction, notwithstanding the fact that application was not made at first instance.

[22]   Mr Azam accepted the offending was at the lower end of the moderately serious level having regard to both the facts of the offence and matters personal to the offender. He acknowledged that deportation is a direct consequence of a conviction and responsibly acknowledged that if I was to conclude the consequences of conviction were out of all proportion to the gravity of the offending, a discharge without conviction was the appropriate outcome.

Analysis

[23]   An appeal against conviction is governed by s 232 of the Criminal Procedure Act 2011. Ms Yu’s appeal can only succeed if she can establish that, for any reason, a miscarriage of justice has occurred. This engages a two-step process:14

(a)identifying whether there was an “error, irregularity or occurrence”; and

13     Richmond v R, above n 7.

14     Wylie v R [2016] NZCA 28, [2016] 3 NZLR 1 at [24].

(b)considering whether there is a “real risk that the outcome was affected” or has resulted in an outcome that was unfair or a nullity.

[24]   I agree with Ms Clarisse that this case falls within the fourth category in Richmond 15 (erroneous advice as to non-availability of defences or outcomes) where a miscarriage of justice might be found notwithstanding a guilty plea.

[25]   In Grant v R, it was found that the fourth category of Richmond must logically encompass the absence of advice as to defences or outcomes that are available.16 I agree. That might include the failure to advise as to the availability of a discharge without conviction.

[26]   Whilst it might strike as surprising that given her prior experience, Ms Yu did not turn her mind to the consequence of a conviction when she entered her guilty plea, I accept that she did not and, that she did not contemplate that a conviction could possibly give rise to her deportation. Consequently, her immigration status was not raised with the duty lawyer.

[27]The respondent argues this omission was the responsibility of Ms Yu.

[28]   I find that the duty lawyer ought to have inquired as to Ms Yu’s personal circumstance in order to offer advice as to the plea and the appropriate sentencing outcome. Had the duty lawyer done so I am in no doubt the case would have been adjourned for the immigration consequences to be considered and for a discharge without conviction to be sought. In my view, the absence of such advice from the duty lawyer falls within the fourth Richmond category and I find that a miscarriage has occurred.

[29]   Further, I find that the failure of the Judge to consider s 11 of the Sentencing Act was an error, albeit an understandable error given Ms Yu’s previous convictions and the absence of a supporting submission. Of itself this error gives rise to a real risk that the outcome was affected.

15     Richmond v R, above n 712 at [17]–[19].

16     Grant v R, above n 11.

[30]   I therefore consider the issue of a discharge without conviction. The applicable principles are well established. Section 107 of the Sentencing Act provides as follows:

107     Guidance for discharge without conviction

The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.

[31]   The correct approach to the s 107 test was set out by the Court of Appeal in Z (CA 447/2012) v R where Arnold J described a four-stage analysis for sentencing courts:17

(a)consider all aggravating and mitigating factors of the offence and offender to establish the gravity of the offence;

(b)identify the direct and indirect consequences of conviction for the offender;

(c)consider whether those consequences are out of all proportion to the gravity of the offence; and

(d)consider whether, in the exercise of the residual discretion in s 106, a discharge should nonetheless be declined.

Gravity of offending

[32]   A first offence of driving with excess breath alcohol carries a maximum penalty of three months’ imprisonment. Contextually it might be described as a lower level offence, however, as observed by the Court of Appeal in Basnyat v Police:18

Drink driving is a moderately serious offence when seen by reference to its potential consequences and to the pervasiveness of alcohol abuse in our society.

[33]   Ms Yu’s breath alcohol level of 500 micrograms of alcohol per litre of breath was at the lower end in relation to the specified limit under s 56(1) of the Land

17     Z (CA 447/2012 v R [2012] NZCA 599, [2013] NZAR 142.

18     Basnyat v Police [2018] NZCA 486, [2019] NZLR 344 at [19].

Transport Act 1998. There were no factors aggravating the driving offence. Factors personal to Ms Yu provide powerful mitigation. That includes her immediate guilty plea and expressions of remorse, her commitment to rehabilitative treatment following her 2016 conviction, and that she is in a stable relationship and has the responsibility of caring for a young child.

[34]   I assess the gravity of the offending as being the low end of moderate seriousness.

Direct and indirect consequences of conviction

[35]   I agree with counsel that a distinguishing feature of this case is that there is no concern that the consequences of a conviction are speculative. If the conviction is upheld, the appellant will be deported from New Zealand.

[36]   In Sok v R19and Zhu v R20 the Court of Appeal dealt with applications for a discharge without conviction in cases considering the risk of deportation as a consequence of a conviction. In both cases the Court concluded that the risk of deportation was a consequence of the offending, not the conviction. In neither case was deportation an inevitable consequence.

[37]   The Courts are properly reluctant to intervene in the decision-making of specialist bodies such as Immigration New Zealand. That is so when the outcome cannot be reasonably predicted. This is not one of those cases. I am satisfied the outcome in this case can be predicted. Ms Yu will have to leave New Zealand or be deported.

Proportionality

[38]   The consequence of deportation would be devastating for Ms Yu. She has lived her adult life in New Zealand. She is in a stable relationship with a partner who is a permanent resident of New Zealand. Her child was born in New Zealand. She has no

19     Sok v R CA679/20, [2021] NZCA 252.

20     Zhu v R CA271/20, [2021] NZCA 254.

friends, acquaintances or contacts in China beyond her immediate family. As she says “I know nothing about Chinese society these days having been away from it for so long”.

[39]   The offending was at the low level of moderately serious. I have no difficulty finding that the consequences of conviction in this case are out of all proportion to the gravity of the offending.

Residual discretion

[40]    It is not suggested that, having reached that position, I ought nonetheless decline to order a discharge in exercise of the residual discretion under s 106.

Conclusion

[41]   I grant the application to extend time for filing of the appeal and to file fresh evidence. I allow the appeal. I set aside the conviction and direct that Ms Yu is discharged without conviction pursuant to s 106 of the Sentencing Act. Ms Yu has served a 6 month disqualification of her driver’s licence. She has completed 80 hours community work. In those circumstances I make no further orders.

...................................................

Eaton J

Solicitors:

Pitt & Moore, Nelson

Luke Cunningham & Clere, Wellington