Yugova v Police - [2024] NZHC 2209

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…

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.

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Details

Case: [2024] NZHC 2209
Decision Date: 8 August 2024

CaseChat Overview and Summary

In the case of Yugova v Police, Olesya Yugova appealed her sentence for threatening to kill and burglary charges, arguing that the sentence of 24 months’ intensive supervision was erroneous as she had already spent nearly a year in custody. The key issue was whether the sentence materially departed from the indication and whether Yugova should have been given the opportunity to vacate her guilty plea. The Crown accepted that Yugova should have had the opportunity to vacate her plea due to the practical effect of the sentence being more onerous than the indicated sentence. The Court considered whether the sentence of intensive supervision was materially different from the indicated sentence of 21 months’ imprisonment. The Court found that the sentence imposed was indeed materially different and that Yugova should have been given the opportunity to vacate her plea, leading to a procedural error.

The Court concluded that while a sentence of intensive supervision could be seen as appropriate, the length of the custodial remand prior to sentencing led to the conclusion that imposing intensive supervision for 24 months was an undue restriction on Yugova’s liberty. Therefore, the Court quashed the sentence of intensive supervision and substituted a sentence of 21 months’ imprisonment with the same release conditions imposed in the District Court for the six-month statutory period. The orders suppressing the names and identifying particulars of the victims were not disturbed.

Orders