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Allen v The King

Allen v The King

Case [2023] NZHC 2871 13 October 2023

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IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2023-419-53

[2023] NZHC 2871

BETWEEN
SAMANTHA (MEREPEKA) ALLEN

Appellant

AND

THE KING

Respondent

Hearing:
4 October 2023 and further memoranda received 10 and 11

October 2023

Appearances:

P Cornegé and MSC Rollason for the Appellant A Alcock for the Respondent

Judgment:

13 October 2023

JUDGMENT OF GAULT J

This judgment was delivered by me on 13 October 2023 at 4:30 pm.
Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:
Mr P Cornegé and Mr MSC Rollason, Barristers, Hamilton
Ms A Alcock, Hamilton Legal, Office of the Crown Solicitor, Hamilton

ALLEN v R [2023] NZHC 2871 [13 October 2023]

[1] Ms Allen appeals against her sentence of two years and seven months’ imprisonment imposed by Judge P P Crayton in the Hamilton District Court on 3 May 2023,1 after Ms Allen pleaded guilty to charges of dangerous driving2 and driving with excess blood alcohol causing death.3

[2] The principal ground of appeal relates to Ms Allen’s medical condition. In support of her appeal, Ms Allen seeks leave to adduce affidavits from herself and her partner, and a letter from the Department of Corrections.

The offending

[3] On 30 March 2022, at approximately 8:20pm, Ms Allen was driving south on State Highway 3. As she approached the roundabout at Hangatiki, her vehicle failed to remain in its lane and drove briefly onto the kerb. Ms Allen continued driving south and weaved over the centreline into the right lane at least three times. At one point she crossed the centre line into the northbound lane and continued to drive on the wrong side of the road for approximately 100 metres.

[4] As Ms Allen continued travelling south, the vehicles in front were travelling at approximately 90km/h. Ms Allen caught up to a large truck. The victim, Abigail Johns, was travelling north. Ms Allen approached a moderate left turn, but she failed to make the turn and crossed the centre line. As Ms Allen did so, her vehicle collided head on with the victim’s vehicle. The victim died as a result of the injury sustained in the crash.

[5] Ms Allen’s vehicle landed on its side in the south bound lane, facing north. Ms Allen suffered serious injuries.

[6] Ms Allen’s blood was found to contain 167 milligrams +/- 8 milligrams of alcohol per 100 milligrams of blood, and to contain tetrahydrocannabinol (THC), the active constituent of cannabis.

1      R v Allen [2023] NZDC 8648.
2      Land Transport Act 1998, s 35(1). Maximum penalty three months’ imprisonment or $4,500 fine, with a disqualification from holding or obtaining a driver licence for at least six months.
3      Section 61(1)(b), (3AA) and (3A). Maximum penalty 10 years’ imprisonment or $20,000 fine, with a disqualification from holding or obtaining a driver licence for more than 1 year.

[7] Prior to this offending, Ms Allen already had three previous convictions for driving with excess breath alcohol. Her first excess breath alcohol conviction 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 Allen v The King

Details

AGLC: Allen v The King [2023] NZHC 2871
Case: [2023] NZHC 2871
Decision Date: 13 October 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Samantha (Merepeka) Allen appealed against her sentence of two years and seven months’ imprisonment imposed by Judge P P Crayton in the Hamilton District Court on 3 May 2023, following her guilty plea to charges of dangerous driving and driving with excess blood alcohol causing death. The primary grounds of appeal related to Ms Allen's medical condition, her injuries, and the resulting hardship she faces in a custodial setting. The appeal hinged on whether the sentence was manifestly excessive or wrong in principle.

The court admitted further evidence from Ms Allen, her partner, and a letter from her psychologist, which was deemed credible and fresh. Ms Allen's medical condition had deteriorated significantly since her initial sentencing, and she faced a potential amputation of her leg due to an infection. Her partner's affidavit highlighted the availability of a strong support network in Te Kuiti, which included family, medical professionals, and caregivers.

The court considered the appropriate discount for Ms Allen's injuries and the resulting hardship in a custodial setting, acknowledging the overlap between the discount for injuries and the discount for hardship. It found that a combined discount of 15 per cent was appropriate. Regarding Ms Allen's background, remorse, and potential for rehabilitation, the court found that a higher discount was warranted, considering her upbringing, genuine remorse, and reasonable rehabilitation prospects. The court calculated that a total discount of 60 per cent, including 25 per cent for guilty pleas, would lead to an end sentence of just under 22 and a half months’ imprisonment.

Given the further evidence and the appropriate discounts, the court exercised its discretion to impose a sentence of home detention, considering the purposes and principles of sentencing. The safety of the community was not a factor due to Ms Allen's injuries, and she was very unlikely to drive again. The court imposed a sentence of nine and a half months’ home detention, taking into account the time Ms Allen had already served in custody. The appeal was allowed, and Ms Allen's sentence was substituted with a sentence of nine and a half months’ home detention on the special conditions recommended by the Department of Corrections.

Orders