Xiao v Police [2016] NZHC 1947 (19 August 2016)

High Court of New Zealand

[Index] [Search] [Download] [Help]

---

Xiao v Police [2016] NZHC 1947 (19 August 2016)

Last Updated: 19 August 2016

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2016-441-25 [2016] NZHC 1947

BETWEEN	JIELING XIAO Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	16 August 2016 (Heard at Wellington via AVL)
Appearances:	S Jefferson for the Appellant S Walker for the Crown
Judgment:	19 August 2016

_{JUDGMENT OF MALLON J}

Introduction

[1] Ms Xiao has pleaded guilty to a charge of dangerous driving causing death.¹

She was sentenced in the District Court to 17 months imprisonment, ordered to pay emotional harm reparation of $10,000 and disqualified from holding or obtaining a driver’s licence for three years.² Ms Xiao appeals against her sentence. She contends the Judge erred in deciding not to impose home detention.

The circumstances

[2] Ms Xiao is a 27 year old visitor from China. She was in New Zealand on a one year working visa which was due to end on 6 July 2016. She holds a full Chinese driver’s licence, which entitled her to drive in New Zealand. She had never driven a vehicle on an open road, in a rural environment at speeds in excess of

_{50 km/h. By her own admission she is not a confident driver.}

1. Land Transport Act 1998, s 36AA(1)(b). Maximum penalty 10 years imprisonment or a $20,000 fine.

² _{R v Xiao [2016] NZDC 11043.}

XIAO v NEW ZEALAND POLICE [2016] NZHC 1947 [19 August 2016]

[3] She and a friend, who was also from China, purchased a car in late January

2016. She says she had studied the Road Code and practised driving around town to ensure she was feeling confident.

[4] She and her friend planned to drive from the Napier area to Te Puke on 7

February 2016 to attend a work-site induction event. On 6 February 2016 she drove on the open road towards Waimarama Beach (a return drive of approximately one and half hours), with her friend as a passenger, to practice driving on the open road. Her passenger later described to the police that Ms Xiao was not slowing down for the corners and was turning sharply, and that it was not until she told Ms Xiao to slow down that she started to feel safe. For her part, Ms Xiao says she felt nervous and lacking confidence, but felt more confident on the return trip.

[5] On 7 February 2016 Ms Xiao and her friend embarked on the intended drive to Te Puke. Ms Xiao says she was not feeling confident but thought she would be able to drive to Taupo, and then rest, before travelling on to Rotorua, and then on to Te Puke. The road from Napier to Taupo is a windy road with a 100 km/h speed limit.

[6] At about 9.50am Ms Xiao and her passenger were driving along State Highway 5 through Eskdale making their way to Taupo. The weather was fine and the traffic conditions were moderate. Two occupants of a Toyota Corolla following Ms Xiao’s car later reported to the police that Ms Xiao’s speed was erratic ranging up and down between 70 to 100 km/h. They also noticed she was not driving straight and, on two occasions, the left wheels of her car crossed the fog line to the left of the north-bound lane.

[7] A line of five motorcycles, also heading north towards Taupo, came up behind the two cars. The first two motorcycles in the line passed both cars without incident. As the third motorcycle attempted to pass the Toyota Corolla, Ms Xiao misjudged a right-hand bend and veered completely out of the lane and to the left of the fog-line of the road. At this location, there was a sealed access-way into a car- park. Ms Xiao’s vehicle travelled through the sealed access-way at an estimated speed of about 80 km/h before correcting her error by suddenly veering right at a

severe angle back into the lane. This manoeuvre was directly into the path of the third motorcycle, driven by Mr Middleton, as he was in the process of passing the Toyota Corolla and returning to the north bound lane. Ms Xiao’s front right wheel collided with the motorcycle, launching Mr Middleton and his motorcycle up into the air and on to the southbound lane. Tragically Mr Middleton died at the scene. He was 23 years old.

[8] Ms Xiao cooperated with the police from the outset, enabling the matter to be brought to an early conclusion. She told the police she found the speed on the highway to be really fast, “so sometimes when there is a corner I can’t control my speed because I haven’t been driving long in New Zealand.” She also said she was not aware of the three motorcycles approaching her car from behind.

[9] Ms Xiao has no previous convictions. The probation officer considered she was genuinely remorseful. She described Ms Xiao as being “extremely emotional and upset when discussing the offending”, accepting full responsibility and not attempting to minimise or justify her actions. Ms Xiao was willing to engage in restorative justice and wrote a letter of apology to Mr Middleton’s family. The couple with whom Ms Xiao had been residing found her to be a respectful, responsible and well-adjusted young adult. They described her as being very remorseful, upset and withdrawn following the accident. They were prepared to accommodate her if she were sentenced to home detention and wished to help her out in any way possible.

[10] There were nine victim impact statements from Mr Middleton’s family before the District Court. They articulated the immense sorrow, grief and difficulties when a loved young man dies in the circumstances he did.

District Court sentence

[11] In sentencing Ms Xiao the Judge accepted the Crown’s submission, with

particular reference to three authorities,³ that a starting point of three and a half years imprisonment should be adopted. The starting point took into account Ms Xiao’s

3. Ko v Police [2012] NZHC 3312; Cao v Police [2015] NZHC 1793; Police v Wang (DC) Dunedin CRI 2014-005-314.

“grossly incompetent” driving, and her decision to drive despite a lack of confidence and warning signs as to incompetency the day before. The Judge said it was “an accident waiting to happen”.⁴ A discount of 35 per cent was given for Ms Xiao’s personal mitigating factors including her remorse and an offer of $10,000 in reparation. A 25 per cent discount was given for her guilty plea. This left a provisional end sentence of 17 months imprisonment.

[12] The Judge then considered whether to grant home detention. She noted there was no presumption either in favour of or against home detention, with cases going both ways. The Judge described the seriousness of this offending as high. This was because Ms Xiao “in some respects, naively” thought she could drive safely on the open road, when “clearly the day before [she] could not”. On the day of the accident, she had been driving incompetently even before the collision with Mr

Middleton. It was therefore not a one-off error and not a matter of “if, but when”.⁵

[13] The Judge then said:⁶

I agree with the Crown that a sentence of general deterrence is warranted. I also bear in mind that if I impose a sentence of home detention I am uncertain as to the outcome of that. You may simply be deported after 28 days. In my view that would not be an appropriate outcome in terms of accountability, deterrence and denunciation in terms of the sentencing outcomes. That being the case, home detention in my view is not appropriate.

[14] An end sentence of 17 months imprisonment, emotional harm reparation of

$10,000 and disqualification from holding or obtaining a driver’s licence for three

years was imposed.

Grounds of appeal

[15] Counsel for Ms Xiao submits home detention was available, was the least restrictive outcome in the circumstances, and ought to have been imposed. He

_{submits that in declining home detention the Judge erred in two respects:}

⁴ _{R v Xiao, above n 2, at [14].}

⁵ _{At [23].}

⁶ At [24].

(a) placing weight on the possibility of deportation; and

(b) determining that, because a sentence of general deterrence was warranted, home detention was inappropriate.

[16] The respondent accepts the Judge erred in taking into account the possibility of Ms Xiao being deported. The respondent submits that nevertheless the Judge was correct to decline home detention for the reason of general deterrence.

Analysis

Immigration status

[17] Section 178 of the Immigration Act 2009 provides that a deportation order cannot be executed while a person is in prison. However there is no such prohibition upon a deportation order being executed while an offender is serving a sentence of home detention.

[18] The information provided to the Judge at sentencing was that Immigration New Zealand was intending to serve Ms Xiao with a deportation notice and, unless she was sentenced to imprisonment, it was likely she would be deported 28 days after sentencing and the expiry of any appeal.

[19] The Court of Appeal has held that, the possibility of a defendant being removed from the country by the Immigration Service before he or she has completed any community based sentence, is not to be taken into account when sentencing that person.⁷ Accordingly the respondent was correct to accept the Judge erred when she took into account the possibility of deportation in declining to order

_{home detention.}

7. R v Ondra [2009] NZCA 489 at [7]. Reaffirmed in Nath v R [2010] NZCA 418 at [20] referring to the line of Court of Appeal authorities to this effect. See also Ji v R, You v R [2015] NZCA

308 at [49]. For an example of a community based sentence which was intended to be completed before deportation, see R v Ismail [2016] NZHC 79.

General deterrence

[20] Counsel for Ms Xiao submits the Judge was also wrong to decline to order home detention because of the need for general deterrence. That is because, as the Court of Appeal has held, home detention is a sentence which “carries with it in considerable measure, the principles of deterrence and denunciation.”⁸ He submits Ms Xiao’s driving needs to be considered in the context of the driver’s licence regime in New Zealand, which permits licensed drivers from other countries to drive

on the open road here without further requirements. He submits the cause of this accident was Ms Xiao’s inexperience and it is manifestly excessive to send a person to prison on that basis.

[21] The respondent submits that, putting aside the immigration status of Ms Xiao, the appropriate sentence in this case was a finite term of imprisonment. It submits the culpability of the driving was high for the reasons the Judge gave, namely: from the drive the previous day Ms Xiao knew or ought to have known that she was not able to drive safely on the open road in this country; and she was driving erratically before the incident which caused Mr Middleton’s death. In these circumstances this was not a one-off error of judgment but an accident waiting to happen. It submits a deterrent sentence, directed to foreign nationals driving on New Zealand roads and causing death due to inexperience and driver error, was justified in this case.

[22] In my view the Judge did not focus exclusively on general deterrence in declining home detention. The Judge considered the seriousness of the offence when deciding whether to order home detention.⁹ She also referred to accountability, deterrence and denunciation in reaching her conclusion that imprisonment was the appropriate sentence.¹⁰ However the Judge’s remarks in that respect were focussed on the possibility of deportation within 28 days. It is not clear from her remarks whether she would have reached the same conclusion if that consideration was put to

_{one side, as it is required to be.}

⁸ _{R v Iosefa [2008] NZCA 453 at [41].}

⁹ _{R v Xiao, above n 2, at [23].}

¹⁰ At [24].

My assessment

[23] I am therefore satisfied the Judge’s error in taking into account Ms Xiao’s immigration status was material and this Court is to form its own view on the appropriate sentence.¹¹ While the consequences of Ms Xiao’s poor driving were tragic, that does not preclude home detention. As the Judge accepted, there are cases both in favour of and against the imposition of home detention in cases of this kind.¹² The personal circumstances of Ms Xiao pointed strongly in favour of home detention: she was a remorseful, young, first offender who had taken immediate responsibility for the offending. She was considered to be at a low risk of reoffending. She had offered reparation (and paid that on the day of sentencing) and she had a suitable home detention address with the supportive couple with whom she had previously lived.

[24] In these circumstances imprisonment was appropriate only if the culpability of the driving was such that it outweighed the personal circumstances in her favour. As the Court of Appeal has said, in charges of this kind¹³ “so much depends on the

particular circumstances of the offending”.¹⁴ In considering the present

circumstances, it should be kept in mind that it is the culpability of the driving that is at issue. Ms Xiao was permitted to drive in New Zealand and her driving is to be

_{assessed in that light.}

¹¹ Criminal Procedure Act 2011, s 250; Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 428 at [30].

¹² For examples where home detention was imposed see Ko v Police [2012] NZHC 3312: Mr Ko’s sentence of one year and nine months imprisonment was substituted for nine months home detention and 200 hours community work. He had crossed double yellow lines in an endeavour to pass a truck and his driving was “not of the worst kind in terms of culpability” at [25]; Police v Wang Dunedin DC, CRI-2014-025-314, 2 May 2014. Mr Wang was sentenced to nine months home detention. He had passed a vehicle and failed to return to the correct side of the road.

Judge Bouchier held there was “no element of... wilful dangerousness or recklessness” at [23].

For other cases where home detention has been imposed for dangerous driving causing death refer to R v Seyb HC Timaru CRI-2007-003-000416, 11 September 2008 and R v Moana HC Gisborne CRI-2007-016-102, 7 December 2007. In Khan v Police HC Auckland A89/01, 24

July 2001 leave was granted for the appellant to apply for home detention. For manslaughter charges where a community based sentence has been imposed see, for example, R v Elliot & Chad [2014] NZHC 214 and R v Hawkins [2016] NZHC 554.

¹³ Reckless or dangerous driving causing death (s 36AA) or causing death while driving under the influence of alcohol (s 61) which carry the same maximum penalty.

¹⁴ Gacitua v R [2013] NZCA 234 at [22] citing R v Skerett CA 236/86, 9 December 1986; R v

Fallowfield [1996] 3 NZLR 657 (CA) and Hancy v R [2009] NZA 469.

[25] The present case involved driving by someone who, objectively, ought to have known she was not able to drive safely. I accept this is the aggravating feature of the offending. On the other hand, as noted in the probation report, it seems that Ms Xiao did not consider she might be putting other drivers at risk. She had taken steps to account for her lack of experience and confidence, in reading the road code, practising driving around town, and practising driving on the open road the day before. Her confidence had increased on the return drive of that open road practice. It would appear her passenger must have thought so as well, as she elected to travel with Ms Xiao the next day. On that day, although the car following Ms Xiao regarded her driving as erratic, it does appear from her errors that she was intending to drive cautiously: correcting for her lack of confidence from speed by slowing down to 70 km/h, and veering off the road to the left rather than right on to the south bound lane. There are no other aggravating features which often arise in a charge of this kind, such as high speed, racing or competitive driving, aggressive driving, or driving under the influence of alcohol or drugs. It was a case of inexperience and a lack of awareness of the dangers arising from that inexperience.

[26] In contemplating a sentence of home detention in the place of imprisonment, the Court must make a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.¹⁵ I consider the culpability of Ms Xiao’s driving was not at the level which necessarily precluded home detention for general deterrence purposes. Her personal factors meant that imprisonment was not necessary for accountability, denunciation and individual

deterrence. Weighing all these relevant factors, in my view a sentence of home detention was the appropriate least restrictive sentence. To that I consider it appropriate to add a period of community work, so that she is able to contribute something back to the community in addition to the reparation payment which has

_{been made to Mr Middleton’s family.}

¹⁵ Fairbrother v R [2013] NZCA 340 at [29]- [30].

Result

[27] The appeal is allowed. I quash the sentence of 17 months imprisonment. Taking into account the time Ms Xiao has served in prison, I substitute a sentence of nine months home detention and 150 hours of community work. The other orders made at sentencing in the District Court are confirmed. Counsel are to file a joint memorandum as to the conditions applying to the home detention sentence.

Mallon J