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…

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 Yu v Police

Details

AGLC: Yu v Police [2021] NZHC 3000
Case: [2021] NZHC 3000
Decision Date: 8 November 2021

CaseChat Overview and Summary

In Yu v Police, the appellant, Ms Yu, appealed against her conviction for driving with excess breath alcohol and the sentence imposed by the Hutt Valley District Court. Ms Yu sought an order for discharge without conviction under section 106 of the Sentencing Act 2002, arguing that the consequences of her conviction, which would result in deportation, were disproportionate to the gravity of her offence. The key legal issues in this case were whether there had been a miscarriage of justice due to the appellant's duty lawyer failing to advise her about the possibility of a discharge without conviction and whether the consequences of conviction were out of all proportion to the gravity of the offence.

The High Court found that the duty lawyer's failure to advise Ms Yu about the possibility of a discharge without conviction constituted a miscarriage of justice, falling within the fourth category in Richmond. The Court held that the absence of such advice from the duty lawyer fell within the fourth Richmond category and found that a miscarriage had occurred. Additionally, the Court found that the failure of the Judge to consider section 11 of the Sentencing Act was an error that gave rise to a real risk that the outcome was affected.

The Court then considered the proportionality of the consequences of conviction to the gravity of the offence. The Court found that the consequences of conviction, i.e., deportation, were out of all proportion to the gravity of the offence of driving with excess breath alcohol. Given that Ms Yu had served her sentence and disqualification period, the Court set aside the conviction and discharged Ms Yu without conviction under section 106 of the Sentencing Act 2002.

Orders