Yugova v Police
[2024] NZHC 2209
•8 August 2024
ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF VICTIM(S) PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-000154
[2024] NZHC 2209
OLESYA YUGOVA v
NEW ZEALAND POLICE
Hearing: 1 July 2024 Appearances:
A Gold for the Appellant
R McCoubrey and L Seybold for the Respondent
Judgment:
8 August 2024
JUDGMENT OF WALKER J
This judgment was delivered by me on 8 August 2024 at 10 am Registrar/Deputy Registrar
Counsel:
A Gold, Barrister, Auckland
R McCoubrey, Meredith Connell, Auckland Crown Solicitor
YUGOVA v POLICE [2024] NZHC 2209 [8 August 2024]
[1] Ms Yugova pleaded guilty to 24 charges of threatening to kill1 and two burglary charges,2 following a sentence indication.3 She was sentenced by Judge A M Fitzgibbon at the North Shore District Court on 1 March 2024 to 24 months’ (or two years’) intensive supervision.4
[2] Ms Yugova appeals her sentence. The key issue on appeal is whether there is an error in the sentence because, at the time of sentencing, Ms Yugova had already been remanded in custody for nearly a year. The practical effect of the indicated sentence would have been release because of time served with release conditions (standard or special) for a period of six months.5 Instead, the Judge imposed a sentence of supervision, notwithstanding Ms Yugova had already been in custody for 399 days at the date of sentencing.
Grounds of appeal
[3] Ms Yugova contends that she accepted the indication on the basis that time spent remanded in custody would mean that she would be released. She argues that, although a sentence of supervision is a lesser sentence in terms of the sentencing hierarchy, in her unique circumstances, the sentence was practically more restrictive.
[4] She seeks that the sentence of 24 months’ intensive supervision be quashed and substituted with a sentence of 21 months’ imprisonment with release conditions, in line with the sentence indication.
[5] The Crown does not take issue with the proposition that Ms Yugova ought to have had the opportunity to vacate her plea because the practical effect of this sentence is more onerous than the indicated sentence. For the Crown, Mr McCoubrey submits that the sentence of intensive supervision was an appropriate sentence in the ordinary course for this offending but recognises the difficulty of accounting for the time spent
1 Crimes Act 1961, s 306: maximum sentence of 7 years’ imprisonment.
2 Section 231: maximum sentence of 10 years’ imprisonment.
3 Police v Yugova DC North Shore CRI-2023-044-321, 19 December 2023.
4 Police v Yugova [2024] NZDC 4536.
5 Parole Act 2002, s 86. This provides that the release date of a short-term sentence is the date on which the offender has served half of the sentence.
in custody. He invites the Court to assess whether it remains an appropriate sentence nonetheless.
Offending
[6] The Judge’s sentencing indication sets out the offending based on the Police summary of facts.6 I rely on that summary below.
[7] Ms Yugova’s offending spans a period from 21 September 2022 to 25 January 2023. Ms Yugova’s late husband died [REDACTED]. She became aggrieved at the solicitor finalising the estate matters. She formed an irrational belief that the solicitor had caused or contributed to her husband’s death for his own monetary gain. The victims of the first tranche of offending are family members of the solicitor concerned.
[8] Ms Yugova posted threats on various social media platforms in which she threatened harm to the victims in vile and violent terms. Two of the victims were elderly and vulnerable.
[9] Ms Yugova went to the home of some of the victims, poured paint on cars parked in their garage and threw several rocks at the property, breaking two glass windows.
[10] The victims of the second tranche of offending are family members of Ms Yugova by marriage. This also related to harassing social media posts.
[11] A further victim had an altercation with Ms Yugova at the Auckland City Mission. This led to Ms Yugova posting threats and inciting violence against that individual on social media.
[12] I pause to note that victim impact statements made available to the Court provide insight into the harm caused by this offending. The threats and related behaviour have caused the victims stress, anxiety and fear — particularly so as the threats also targeted the extended family, including young children. I have no doubt
6 Police v Yugova, above n 3, at [4]-[16].
that Ms Yugova’s obsessive pursuit of the victims has had a significant emotional toll on them. This was serious offending by any measure.
Sentencing process
Sentence indication
[13] Ms Yugova was remanded in custody from 27 January 2023. She was legally aided. It appears that she had multiple assigned lawyers. By October 2023, she had decided to represent herself. Why or how this arose is not explained on the material before the Court. Counsel assisting was appointed, followed by another assigned legal aid lawyer.
[14] Both counsel assisting and the assigned counsel were present for the hearing of the sentence indication on 19 December 2023. Assigned counsel was granted leave to withdraw immediately on the giving of the indication. It was counsel assisting who sought instructions from Ms Yugova in respect of the sentencing indication.
[15] The prosecutor relied on various aggravating factors of the offending to propose a starting point of 30 to 36 months. These included the detailed descriptions of how Ms Yugova would exact violence, unlawful entry into the victims’ homes, damage to their property and the vulnerability of some of the victims.
[16] The Judge canvassed the extensive summaries of facts of the offending.7 She also considered the victims and acknowledged their victim impact statements.8
[17] On the 24 threatening to kill charges, the Judge assessed the starting point at 22 months due to the frequency of threats and degree of premeditation.9 She uplifted the start point by six months for the two burglaries, noting that they had been over charged.10 A 25 per cent deduction for guilty plea resulted in an indicated sentence of 21 months’ imprisonment. The Judge concluded by saying:
7 At [2]–[15].
8 At [16].
9 At [28]–[30].
10 The offending related to going onto properties unlawfully and damaging property.
[30] …A 25 per cent discount would mean an end sentence subject to other reports of 21 months.
[31] That is my sentence indication, Ms Yugova. I am releasing [assigned counsel] as your counsel as you have requested; he is formally withdrawing from acting for you.
[32] So, you know you have got five days to consider the sentence indication given to you. I believe [counsel assisting] can talk to you about it and then you can decide whether or not you want to enter a plea or whether you want to proceed to trial.
(emphasis added)
[18] Ms Yugova accepted the sentence indication that day. She expected to receive bail. That application was declined, and she was instead remanded in custody through to a sentencing date. The bail decision was not appealed.
[19] It follows that, in addition to the 326 days Ms Yugova had spent on remand up to the sentencing indication, she spent a further, not insignificant period in custody until her sentencing date.
[20] The Judge did not categorically reserve questions for later consideration at actual sentencing, such as the prospect of a community-based sentence, but counsel advises that after acceptance of the indication, a pre-sentence report with annexures was requested. Arguably, that was a signal that community-based or home detention options were possible.
Decision under appeal
[21] Sentencing then took place on 1 March 2024. Counsel assisting appeared but new assigned counsel appeared on Ms Yugova’s behalf.
[22] The Judge acknowledged at the outset of her sentencing notes the sentence indication given on 19 December 2023. She said:
[3] You have been in custody now for over a year. You have served the punitive component of your sentence, having spent that period of time in custody, which is the equivalent of over two years’ imprisonment.
[4] Looking to the rehabilitative component of the sentence it seems your offending was, as I stated in the sentence indication, bizarre and over the top
and suggested possible psychological issues, possibly unresolved anger and grief.
[5] I have now heard from the victims, all of whom have described graphically, the impact of your offending on them and on their families and I consider a rehabilitation sentence of 24 months intensive supervision to be appropriate.
[23] The Judge imposed the conditions set out in the Provision of Advice to Court report dated 30 November 2023, namely:
(a)not to possess or use any electronic device for the purpose of accessing social media websites;
(b)to live at an address approved by a probation officer and not move to any new residential address without the prior written approval of a probation officer;
(c)not to possess, consume or use any alcohol or drugs not prescribed;
(d)not to travel north of Drury without the prior written approval of a probation officer;
(e)to attend a psychological assessment with a departmental psychologist as directed by a probation officer and complete any treatment and/or counselling as recommended by the assessment and to the satisfaction of a probation officer;
(f)to attend an assessment for any programme, including departmental, as directed by a probation officer;
(g)to attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a probation officer; and
(h)not to associate with or contact certain named persons without the written approval of a probation officer.
Discussion
[24] Sentencing indications are provided for in ss 60 to 65 and ss 115 and 116 of the Criminal Procedure Act 2011 (the Act). Subpart 4 of the Criminal Procedure Rules 2012 is also relevant.
[25] When sentencing materially departs from the sentence indication, ordinarily the defendant must be given an opportunity to vacate the guilty plea.
[26]Section 115 of the Act reads:
115 Plea of guilty may be withdrawn by leave of court
(1)A plea of guilty may, by leave of the court, be withdrawn at any time before the defendant has been sentenced or otherwise dealt with.
(2)The court must grant leave to a defendant to withdraw a plea of guilty referred to in section 116(1) if—
(a)the court, presided over by the judicial officer that gave the relevant sentence indication, indicates that the circumstances described in section 116(2) apply and it proposes to impose a sentence of a different type or types, or of the same type or types but a greater quantum, than that specified in the sentence indication; or
(b)the court, presided over by a judicial officer other than the one that gave the relevant sentence indication, indicates that it proposes to impose a sentence of a different type or types, or of the same type or types but a greater quantum, than that specified in the sentence indication.
[27] Under s 116(2):
116 Effect of sentence indication
…
(2)The sentence indication is binding on the judicial officer that gave it unless—
(a)information becomes available to the court after the sentence indication was given but before sentencing; and
(b)the judicial officer is satisfied that the information materially affects the basis on which it was given.
[28] The need to give the defendant the opportunity to withdraw his or her plea in these circumstances arises from the fact that the indication generates a proper expectation upon which the guilty pleas have been based. If there is a significant disparity between the indication and the final sentence, the expectation has not been met and the defendant should not be held to his or her plea.11
[29] The sentencing indication specifically refers to an end sentence of 21 months “subject to other reports”. This too signals that a lesser sentence of imprisonment may be the end result, potentially even a community-based sentence. However, there is nothing in the sentencing notes to indicate that any consideration was given to how Ms Yugova’s circumstances practically affected the substantive outcome.
[30] In this case, the final sentence was presided over by the same judicial officer. The respondent accepts that no opportunity was given to vacate the guilty pleas. I am satisfied that no further information became available after the sentence indication but before sentencing, and so the sentence indication was binding. The Judge had already been provided with victim impact statements. I recognise that those statements would have been more impactful when the victims read the statements, but that does not mean there was new information in the relevant sense.
[31] The next issue is whether a sentence of intensive supervision is of a “different type” within the meaning of s 115 of the Act when it is, on its face, a more lenient sentence in the sentencing hierarchy. The question of whether a sentence is of a different type is not something which should be narrowly interpreted.12
[32] A sentence of intensive supervision can be imposed under s 54B of the Sentencing Act 2002, where the Court is satisfied that it would reduce the likelihood of further offending through rehabilitation and reintegration and the needs of the offender require conditions for a period longer than 12 months.13
11 R v Gemmell [2000] 1 NZLR 695 (CA) at [18]–[19]; Taylor v R [2013] NZCA 55 at [17]–[18].
12 Ellis v R [2020] NZHC 1969 at [27]. The High Court said that ultimate question is whether there has been a material departure from the sentencing indication, and whether the sentence actually imposed is materially more restrictive than indicated.
13 Sentencing Act 2002, s 54C.
[33] The indicated sentence of 21 months is a short term of imprisonment as defined in the Sentencing Act 2002. Consequently, the Court was only able to impose special conditions for a period of up to six months after the sentence expiry date. Similarly, the standard conditions on release under s 93 of the Sentencing Act 2002 may not be imposed for longer than six months. The effect then of ‘substituting’ a sentence of intensive supervision for the short sentence of imprisonment is to significantly extend the period for which Ms Yugova is subject to special release conditions.
[34] I have no doubt that the Judge did so because she took the view that six months was an inadequate period, in light of Ms Yugova’s troubling and volatile behaviour and need for therapeutic and rehabilitative intervention.
[35] I do not apprehend that the respondent fundamentally disagrees with that position. The faint suggestion that the custodial arrangements reflected considerations under the Bail Act 2000 was, properly, not pressed by the respondent.
[36] I therefore accept that, on the facts of this case, imposition of intensive supervision was a materially different sentence than the one indicated. Ms Yugova had a proper expectation that she would be released based on time served if she accepted the sentence indication. I consider, for the reasons set out above, there has been a material departure from the indicated sentence. Further, that in the unusual circumstances before the Court, the sentence imposed was materially more restrictive.
[37] With the benefit of hindsight, the ultimate sentence was therefore not consistent with s 115(2)(a) of the Act. In my assessment, while a rehabilitative sentence was open to the Judge on the sentencing indication, the sentence imposed triggered s 115.14 That requires a judicial officer to grant leave to a defendant to withdraw the guilty plea. As the Judge did not advise Ms Yugova of her intention to impose a different kind of sentence, nor did she provide that opportunity, there was a procedural error in imposing the sentence.
14 Ellis v R, above n 12.
[38] Different approaches have been adopted by appellate courts in these situations, reflecting the different factual circumstances.15 Commonly, the course is to quash the conviction and remit the matter back to the District Court.16 That is not something which Ms Yugova seeks, given that she has effectively served the indicated sentence. Nor would it be fair.
[39] I consider the best approach in this case is to consider the appropriateness of the sentence imposed, informed by the practical reality of the length of time in custody. The starting premise is that a sentence of 21 months’ imprisonment with the special release conditions for the statutory period of six months was an appropriate sentence. I also accept that a sentence of intensive supervision could be seen as an appropriate sentence in the ordinary course. But the length of the custodial remand prior to sentencing overwhelmingly leads me to the conclusion that to impose intensive supervision for 24 months is an undue restriction on Ms Yugova’s liberty which is not justified on the present material before the Court.
[40] Accordingly, while the Court is not required to make the sentence conform to the initial indication if not appropriate to do so, I consider it is the most appropriate outcome in the circumstances of this case.
Outcome
[41] I quash the sentence of intensive supervision and substitute a sentence of 21 months’ imprisonment with the same release conditions imposed in the District Court for the six month statutory period.
[42] I do not disturb the orders made by the District Court suppressing the names and identifying particulars of the victims.
............................................................
Walker J
15 Refer, for example, to Nuku v R [2016] NZHC 2255 and Makiri v New Zealand Police [2019] NZHC 1811 at [15].
16 Te Namu v New Zealand Police [2013] NZHC 3443 at [10].
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