ELENA KUPRIIANOVA v NEW ZEALAND POLICE [2022] NZHC 1306

ELENA KUPRIIANOVA v NEW ZEALAND POLICE [2022] NZHC 1306 [3 June 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-000391[2022] NZHC 1306BETWEEN ELENA KUPRIIANOVAAppellantAND NEW ZEALAND POLICERespondentHearing: 1 March 2022Appearances: S Taghavi for the Appellant A Mackenzie for the RespondentJudgment: 3 June 2022JUDGMENT OF DUFFY JThis judgment is delivered by me on 3 June 2020 at 11am......................................................Registrar / Deputy RegistrarCounsel: S Taghavi, Barrister, Active Legal Solutions, AucklandSolicitors: Meredith Connell, Auckland[1] Elena Kupriianova was convicted of driving with excess breath alcohol causing injury1 in the North Shore District Court by Judge Sinclair on 18 August 2020. She was sentenced to seven months' home detention from a starting point of two years, two months' imprisonment. She was also disqualified from holding or obtaining a driver licence for 28 days from 18 August 2020. At the end of this disqualification she was required to apply for an alcohol interlock licence.[2] Ms Kupriianova immigrated to New Zealand from Russia in 2012. She currently holds a resident visa issued on 2 March 2017. The conviction puts Ms Kupriianova at risk of being deported according to s 161 of the Immigration Act 2009. New Zealand Immigration has paused the deportation procedures pending the outcome of this appeal.[3] Ms Kupriianova appeals against conviction and sentence, seeking discharge without conviction. Her appeal relating to discharge without conviction was initially advanced on two bases. First, on the ground that at sentencing, through defence counsel error, she did not apply for a discharge without conviction under s 106 of the Sentencing Act 2002. Second, she contends that had such an application been advanced it would have had a reasonable chance of success. Thus, a miscarriage of justice has occurred.[4] A joint memorandum of counsel dated 22 February 2022 records that it is accepted Ms Kupriianova was advised by her trial counsel that discharge without conviction was "not an option" in her circumstances. The parties agreed that it was no longer necessary to decide the first ground, because if a discharge would have succeeded, trial counsel's advice was necessarily wrong, and if it would not have, then no miscarriage of justice has occurred. The joint memorandum requests this Court to determine the s 106 discharge matter afresh rather than remitting the matter to the District Court. This Court has jurisdiction to determine the matter of discharge without conviction afresh despite it not being before the District Court at first instance.21 Land Transfer Act 1998, s 61(1)(a); maximum penalty 5 years' imprisonment or $20,000 fine.2 Bedford v R [2021] NZCA 395.[5] Ms Kupriianova also appeals against the sentence of home detention on the ground it was manifestly excessive. If the appeal against conviction and sentence in relation to discharge is unsuccessful, she seeks a sentence of community detention, adjusted to take into account that she had served one month of home detention prior to filing appeal. The disqualification order is not challenged.Leave to adduce further evidence[6] Ms Kupriianova applies to lead the following further evidence on appeal:(a) an affidavit from Ms Kupriianova which principally speaks to the facts upon which her discharge without conviction application is based; and(b) an affidavit from Peter Moses, Barrister, an expert in immigration law and practice which speaks to the real and appreciable risk that Ms Kupriianova may be deported as a result of a conviction for driving with excess breath alcohol causing injury.[7] The admission of the fresh evidence is not opposed. I am satisfied it should be admitted. Ms Kupriianova's appeal is heard on the basis the s 106 application is being heard for the first time. The fresh evidence is relevant to the application and it logically follows form the joint memorandum that there was no earlier opportunity for Ms Kupriianova to adduce this evidence.[8] On 28 February 2022, the day before the hearing, Ms Kupriianova's counsel filed a memorandum seeking leave to adduce evidence of Ms Kupriianova's voluntary work with NZBA, her voluntary decision not to drive between 18 August 2020 and March 2021, and her having driven on an alcohol interlock device since 28 March 2021. The respondent has not addressed this issue. I consider it is new updating evidence relevant to sentencing and therefore admissible.Summary of facts[9] At about 7.30 pm on 6 March 2020, Ms Kupriianova was driving south on Target Road in Wairau Valley, Auckland.[10] A group of seven teenagers were walking south on the footpath of Target Road.[11] Ms Kupriianova lost control of her vehicle, swerved left, mounted the footpath and struck three of the teenagers.[12] One of the teenagers, A, 3 landed on the bonnet of the vehicle, striking her head on the windscreen before falling onto the roadway.[13] When spoken to at the scene by police, Ms Kupriianova exhibited signs of recent alcohol intake. Her breath test results showed she had 943 micrograms of alcohol per litre of breath.[14] Ms Kupriianova explained that she had three glasses of wine at work before driving home, was using her phone and lost control of her car.[15] A sustained a swollen and bruised foot requiring crutches and a moon boot, and a concussion requiring her to take two weeks off school.[16] Ms Kupriianova has undertaken a restorative justice session with A's mother. A attended the pre-conference but was "still too upset" to attend the session. The session went well. As a result, Ms Kupriianova has paid $2,000 in reparation for damage to A's property and medical fees.Discharge without conviction[17] Section 11(1)(a) of the Sentencing Act requires the Court to consider whether an offender should be discharged without conviction under s 106. Section 106, which gives the Court discretion to discharge without conviction, is subject to the s 107 "gateway" test: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.3 The complainant's identity is automatically suppressed under s 204 of the Criminal Procedure Act 2011.Three factors must therefore be considered: (a) the gravity of the offence; (b) the direct and indirect consequences of a conviction; and (c) whether those consequences are out of all proportion to the gravity of the offence.4 The first factor is influenced by aggravating and mitigating factors that apply to the offender. There must be a "real and appreciable risk" of the consequences in the second factor occurring,5 but there is no formal onus of proof on the offender.6 There is no need for a gloss of "exceptional circumstances" on the third factor; "the test is the test".7[18] The focus for assessing the gravity of the offending is on the seriousness of the individual offending in the context of the offence with which a defendant is charged.[19] Ms Taghavi for Ms Kupriianova acknowledges that the gravity of the offence is serious but this does not necessarily preclude discharge without conviction. She points to the following mitigating factors:(a) Early guilty plea. District Court acknowledged that Ms Kupriianova "pleaded guilty at an early opportunity".(b) Voluntary rehabilitation. Ms Kupriianova enrolled in and completed: the CADS North Getting Started drug and alcohol programme, theAA Life Support course.(c) Defendant's age. Ms Kupriianova was 36 at the time of offending and had not previously appeared before the Court, so it is appropriate for her age to be a mitigating factor.(d) Remorse. Ms Kupriianova showed remorse on multiple occasions, including her interview with the Probation Officer for her PAC report, in a letter handed up to the Judge at her sentencing and at the Restorative Justice Conference. The District Court accepted her remorse appeared to be genuine.4 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8].5 DC (CA47/2013) v R [2013] NZCA 255 at [43].6 R v Taulapapa [2018] NZCA 414 at [23].7 Blythe v R [2011] NZCA 190; [2011] 2 NZLR 620 (CA) at [13].(e) Previous good character. Ms Kupriianova has no previous convictions. She is community-spirited and has engaged in a considerable number of charitable, fundraising and volunteering events and activities.(f) Restorative justice. A Restorative Justice Conference took place on the 28th June 2020. The victim A did not attend and was represented by her mother.[20] The respondent highlights the aggravating factors relevant to the gravity of this offending in the gravity include the very high level of alcohol (943 micrograms per litre of breath), the use of a mobile phone while driving, and the harm caused to A. In the respondent's view, the mitigating factors put forward cannot mitigate the seriousness of the offending to the extent that it can be characterised as anything other than high.[21] The offence in this case carries a maximum sentence of five years imprisonment under the Land Transport Act 1998. It is a moderately serious offence in the context of that legislation. The individual offending is a moderately serious example of this type of offending. The high blood alcohol level and use of a cell phone, both of which directly contributed to the injury of the victim, are aggravating factors. The nature and extent of the injury suffered are also relevant here. The injury was moderate. However, the risk of more serious injury was high. I would place the offending at the middle range offending relevant to this offence.[22] The mitigating factors identified by the appellant are no different from the usual mitigating factors that can arise in drink driving offending. There is nothing about them that calls for a discharge without conviction, particularly in the context of the circumstances of this offending.[23] The only relevant consequences for the s 107 assessment are the potential consequences a conviction will have on Ms Kupriianova's immigration status, particularly whether she would then be at risk of deportation. This is where the focus of the appeal lies.[24] Section 161(1)(b) of the Immigration Act 2009 renders a residence class visa holder liable to deportation if such person is convicted of an offence for which the Court has the power to impose imprisonment for a term of two years or more if the offence was committed within five years after the person first held a residence class visa. Ms Kupriianova was granted a residence class visa on 2 March 2017 and her offending was on 6 March 2020, within five years. The offence of excess breath alcohol causing injury has a maximum penalty of five years' imprisonment.[25] Deportation liability does not automatically result in actual deportation. The Minister of Immigration (or a delegated decision-maker) must decide whether to serve a deportation liability notice (DLN) under s 170 of the Immigration Act. As part of this decision-making process the visa holder will be given the opportunity to make submissions and document any mitigating circumstances they wish to be considered.[26] The decision will depend on the seriousness of the offending indicated by the maximum penalty as well as the actual sentence imposed, and the submissions that would be made on behalf of Ms Kupriianova. The decision-maker will take into account any interests of New Zealand family members with residency rights, particularly children. They will also take into account the wider purpose of the integrity of the immigration system and of protecting New Zealand from criminal offending by immigrants.[27] Ms Taghavi submits the direct consequence of a conviction for Ms Kupriianova is the real and appreciable risk of deportation back to Russia. She points to the expert evidence of Mr Moses that it is "practically inevitable" that Ms Kupriianova will be served with a DLN. She acknowledges there is the possibility that Ms Kupriianova would be served a DLN but then granted a suspension (between two to five years) of deportation liability under s 172. Her offence, however, is unlikely to be seen as relatively minor offending by immigration officials. Mr Moses' evidence in this regard is that risk of actual deportation, that is, a DLN being served without any suspension is "about 50 per cent". If this eventuates, Ms Kupriianova would have a right to appeal on humanitarian grounds to the New Zealand Immigration and Protection Tribunal. Mr Moses estimates the prospect of a successful appeal to be at50 per cent. Ms Taghavi submits that given this estimation, the risk of deportation remains real and appreciable.[28] Ms Taghavi says the consequences of deportation would be devastating to her family. Ms Kupriianova has a 13 year old daughter, Daria, who is a New Zealand citizen, and a de-facto partner, Thomas Kilby, who is a British national and a recent New Zealand citizen. They are engaged to be married in 2022 or 2023 and are expecting a child in April 2022. Daria is from a previous marriage and sees her father, who lives in New Zealand, about once a week and on school holidays. If Ms Kupriianova were deported, Daria would most likely lose contact with one of her parents. If she went with her mother to Russia, she would know no-one and have difficulty adapting to a Russian education system. Mr Kilby would have to choose between forfeiting the benefits of his recently acquired New Zealand citizenship or separation from the woman who he is engaged to marry and expecting a child with.[29] Mr Moses' assessment has led the respondent to submit deportation is not certain. The respondents say Ms Kupriianova will have two chances to put her case before the relevant authorities to avoid being deported: once with the original decision- maker and once to the Tribunal on appeal on humanitarian grounds.[30] I accept that Mr Moses is a lawyer with expertise in immigration matters. In summary, he considers there is a fifty per cent likelihood that Ms Kupriianova would be served with a DLN with no suspension. Alternatively, Ms Kupriianova could be served with a DNL that was then suspended for a period of time. In that case she would only be at risk of deportation if she offended again during the currency of the suspension. If a DNL was served without suspension there was a fifty percent likelihood that if Ms Kupriianova exercised her right to appeal to the New Zealand Immigration and Protection Tribunal (NZIPT) then she would be successful.[31] The affidavit providing the assessment by Mr Moses was affirmed on 18 November 2021. By the time of the hearing on 1 March 2022 Russia had invaded Ukraine. Since then, the conditions in Ukraine have deteriorated. Russia is the subject of international sanctions, including sanctions imposed by New Zealand and the United Kingdom. The conflict between Russia and Ukraine looks unlikely to endsoon, and the support and assistance which Ukraine is receiving from NATO and European Union countries continues to grow.[32] Whilst Ms Kupriianova is a Russian citizen, her family's connections are strongly tied to New Zealand. Her eldest child has lived in New Zealand since the age of five years and is a New Zealand resident. Her father (Ms Kupriianova's former husband) is a New Zealand citizen. Ms Kupriianova expected to give birth to a second child in April this year. Her husband is a national of the United Kingdom and a New Zealand citizen. It is difficult to see how this family could manage if Ms Kupriianova were to be deported to Russia. If she went alone there are likely to be difficulties in the other family members maintaining contact with her in Russia. Travel and even electronic or telephone communications may be difficult now and in the future. It is even more difficult to envisage the entire family moving to Russia while the present conflict continues. There is nothing to suggest it is likely to abate any time soon. All indications are of ever worsening conflict. In such circumstances it is unknown whether Russia would permit the family members who are not Russian nationals from entering Russia. Particularly, Mr Kupriianova's husband is a national of a NATO country that is also providing military aid to Ukraine. So, the only outcome, if deportation eventuates, may be separation of this family.[33] The respondent says the focus is on whether the chance of deportation and its associated consequences are out of all proportion to the gravity of the offending. In this respect the respondent argues the odds of deportation cannot be predicted, but as assessed by Mr Moses they are "50-50 odds." My view is that given Mr Moses estimates the likely successful outcome of an appeal to the NZIPT, as being 50 per cent, the odds of deportation are further halved, which reduces them to 25 per cent. I consider those odds to be further reduced by the present conflict between Russia and Ukraine and the stance New Zealand has taken towards that conflict.[34] A helpful summary of the relevant law is set out in Simpson v Police where Wylie J said: 88 Simpson v New Zealand Police [2020] NZHC 2254 at [19] (footnotes omitted).It is settled law under s 107, that the Court need only be satisfied that there exists a real and appreciable risk that the relevant consequence will happen, and that application of the disproportionality test under s 107 requires consideration of all relevant circumstances of the offence, the offending and the offender, and the wider interests of the community, including the factors required by the Sentencing Act to be taken into account under ss 7, 8, 9 and 10.[35] In Simpson v Police, Mr Simpson was found by police to be speeding and driving with 965 micrograms of alcohol per litre of breath (a similar level to Ms Kupriianova). Wylie J observed that driving while impaired due to alcohol is inherently dangerous and can result in serious injury and death. Unlike in this case, Mr Simpson's driving was not responsible for injuring anyone. Here Ms Kupriianova's driving has caused injury. Wylie J was satisfied that there was a real and appreciable risk that Mr Simpson's future career in the advertising and marketing industry would be frustrated if he were convicted of the offending. There was evidence before the Judge from persons experienced in the advertising and marketing industry in which Mr Simpson worked, to confirm that he would be overlooked for employment opportunities and be extremely unlikely to progress in the advertising and marketing field if a conviction were entered against him. The Judge was conscious of the fact that discharges without conviction are not often granted for drink driving offences.[36] Both parties have made submissions as to the appropriateness of the Court considering immigration consequences in relation to discharge without conviction.Ho v R9 and Zhang v Minister of Economic Development10 are examples of cases where the Court has refused to discharge without conviction where risk of deportation is a consequence of conviction based on the view that immigration consequences are best left to the New Zealand Immigration Service (NZIS) to determine. On the other hand, this Court has recognised that risk of deportation is not a factor that should never be taken into account in decisions under s 107.11[37] I am satisfied that here there is not a real and appreciable risk that NZIS will deport Ms Kupriianova. Had I thought there was such a risk I would have granted a9 Ho v R [2016] NZCA 299.10 Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-453, 17 March 2011.11 George v Police [2014] NZHC 1725 at [46]; and Chugh v Police [2015] NZHC 2356 at [41].discharge without conviction. The circumstances of deportation to Russia at present are peculiar and not comparable to the circumstances of Ho v R or Zhang v Ministry of Economic Development. The general displacement a deportee may feel when deported to his or her home country is quite different (as already explained herein) from how deportation to Russia will impact on Ms Kupriianova and her family. The more likely outcome in this case, given this is Ms Kupriianova's first offence, is that she will be served with a DLN that will then be suspended for a period pursuant to s 172 of the Immigration Act. Such an outcome would not be out of proportion to the gravity of the offending in this case. Accordingly, I find the conviction appeal, seeking a discharge without conviction, should be dismissed.Sentence appeal[38] I reject Ms Taghavi's argument that the Judge erred by adopting a starting point of two years two months' imprisonment. I consider that given the circumstances of the offending this was an available starting point. I also consider the end sentence was within the range of available sentences.[39] Ms Kupriianova chose to drive knowing she had consumed alcohol and the test level of alcohol consumed was high. Further, the injury to the victim occurred because while under the influence of alcohol Ms Kupriianova then chose to use her cell phone while driving. This is a further traffic offence. Cell phone use while driving is a distraction. Here there were two intentional acts by Ms Kupriianova each of which carried the risk of harming others. In this case the risk materialised. It is through Ms Kupriianova's good fortune, rather than by her efforts, that more serious injuries and more victims did not occur. Accordingly, I am satisfied the sentence she received is not manifestly excessive.[40] Regarding the new evidence relevant to sentencing, I acknowledge it reflects well on Ms Kupriianova. However, its effect does not tip the sentence into the category of being manifestly excessive. It follows that I find the appeal against sentence should also be dismissed.Result[41] The appeal against conviction is dismissed.[42] The appeal against sentence is dismissed.Duffy J