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Yuan v Police

Yuan v Police

Case [2020] NZHC 933 7 May 2020

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IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2020-425-4

[2020] NZHC 933

BETWEEN
XINGKE YUAN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:
4 May 2020

(by way of Virtual Meeting Room)

Appearances:

T Surrey for Appellant

R Donnelly for Respondent

Judgment:

7 May 2020

JUDGMENT OF MANDER J

This judgment was delivered by me on 7 May 2020 at 3 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: .

YUAN v NEW ZEALAND POLICE [2020] NZHC 933 [7 May 2020]

[1] Mr Yuan appeals his conviction and sentence on a charge of driving with excess blood alcohol.1 He pleaded guilty and applied to be discharged without conviction. Judge Walker declined Mr Yuan’s application, and he was fined $1,000 and disqualified from driving for eight months. Mr Yuan appeals Judge Walker’s decision.

[2] Mr Yuan sought leave to file an updating affidavit for the purposes of his appeal. The Crown did not oppose the admission of that evidence and I am satisfied it meets the requisite test of being credible, fresh and relevant for it to be admitted.2

Background

[3] At 2 am on 20 June 2019, Mr Yuan was apprehended by police driving in Queenstown with no headlights on. He had two passengers in his vehicle when he was stopped. The attending officers noticed that Mr Yuan was affected by alcohol, and a passive breath test gave a positive result of alcohol.

[4] There were difficulties with completing a roadside breath screening test, and Mr Yuan was required to accompany police to the police station. An evidential breath test gave an incomplete result. As a result, a blood sample was taken. On analysis this showed a concentration of 181 mg of alcohol per 100 ml of blood, which is some four times the legal limit.

[5] Mr Yuan is a 24 year old Chinese national (he was 23 years of age at the time of the offending). He was in New Zealand studying English pursuant to a student visa.

District Court ruling

[6] In addressing Mr Yuan’s application for discharge, Judge Walker firstly considered the seriousness of the offending. He noted that required him to assess the mitigating and aggravating features, both of the offence itself and those personal to Mr Yuan. The aggravating features were identified as being the very high alcohol

1 Land Transport Act 1998, s 56(2). Maximum penalty three months’ imprisonment and a fine not exceeding $4,500.
2 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].

level, the presence of passengers, the fact that Mr Yuan was driving without his headlights on, and that because of his blood alcohol level Mr Yuan must have known he was intoxicated and should not have been driving.

[7] Mitigating factors were identified as the guilty plea, although it was noted this was only entered on the day of Mr Yuan’s trial, his age, and absence of previous convictions. It was…

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 Yuan v Police

Details

AGLC: Yuan v Police [2020] NZHC 933
Case: [2020] NZHC 933
Decision Date: 7 May 2020

CaseChat Overview and Summary

Xingke Yuan appeals his conviction and sentence for driving with excess blood alcohol, arguing that the District Court erred in its assessment of the gravity of the offending and the consequences of a conviction. Yuan pleaded guilty and sought to be discharged without conviction, but the District Court fined him $1,000 and disqualified him from driving for eight months. Yuan's appeal hinges on two central issues: whether the District Court Judge correctly assessed the gravity of the offending and the consequences of a conviction.

The court found that the District Court Judge did not err in assessing the gravity of the offending. The high alcohol level in Yuan's blood, the presence of passengers, and his driving without headlights were significant aggravating factors, outweighing mitigating factors such as his guilty plea and remorse. The court determined that the District Court's categorisation of the offending as moderate to high seriousness was appropriate.

Furthermore, the court concluded that the District Court Judge did not underestimate the consequences of a conviction. The potential impact on Yuan's immigration status and future visa applications was accurately assessed, but the prevailing judicial view is that immigration issues are best left to the immigration authorities. The court held that the risk of deportation alone is rarely sufficient to deem the consequences disproportionate to the gravity of the offence, especially given that Yuan had no family or dependents in New Zealand.

Upon reviewing the additional evidence, including recent developments concerning Yuan's visa status, the court found that the consequences of a conviction were not out of all proportion to the gravity of the offending. Yuan's opportunity to complete his studies and the extension of his visa provided some relief, but the court maintained that the statutory threshold for a discharge without conviction had not been met. Consequently, the appeal was dismissed.

Orders