Heke v The Queen - [2020] NZHC 2602

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000345

[2020] NZHC 2602

BETWEEN
MISTY HEKE

Appellant

AND

THE QUEEN

Respondent

Hearing: 22 September 2020

Appearances:

Matthew Timmins for the Appellant Matthew Davie for the Respondent

Judgment:

5 October 2020

JUDGMENT OF MOORE J

[Appeal against sentence]

This judgment was delivered by me on 5 October 2020 at 10:30 am.

Registrar/ Deputy Registrar Date:

HEKE v R [2020] NZHC 2602 [5 October 2020]

Introduction

[1] On 22 January 2020, Ms Misty Heke pleaded guilty to excess breath alcohol causing injury,1 failing to stop and ascertain injury,2 failing to stop when followed by red/blue flashing lights,3 and driving with a breath alcohol level over 400 micrograms per litre of breath.4

[2] On 26 May 2020, following a sentence indication delivered by Judge B A Gibson on 19 May 2020,5 Ms Heke pleaded guilty to causing grievous bodily harm with intent to cause grievous bodily harm,6 and assault with a weapon.7

[3] On 21 July 2020 the Judge sentenced Ms Heke to five years’ imprisonment in the District Court at Auckland.8 Ms Heke appeals her sentence on two grounds:

(a)first, the Judge erred in his application of the guilty plea discount; and

(b)secondly, the Judge failed to give any discount for cultural and background factors (pursuant to s 27 of the Sentencing Act 2002).

The offending

[4] The following descriptions are drawn from the summaries of fact to which Ms Heke pleaded.

[5] There are two sets of offending. The first, committed in February 2019, relates to a drunk driving episode which started with serious violence being inflicted to two motorcyclists followed by a Police pursuit. The second, also involving alcohol,

1      Land Transport Act 1998, s 61(1)(a). Maximum penalty is five years’ imprisonment or $20,000 fine, and disqualification from holding or obtaining a drivers licence for one year or more.
2      Section 36(1)(c).    Maximum penalty is five years’ imprisonment or $20,000 fine, and disqualification from holding or obtaining a drivers licence for one year or more.
3      Sections 52A(a)(ii) and 52A(3). Maximum penalty is $10,000 fine, disqualification from holding or obtaining a driver licence for six months.
4      Section 56(2). Maximum penalty is three months’ imprisonment or a $4,500 fine, disqualification from holding or obtaining a driver licence for six months or more.
5      R v Heke DC Auckland CRI-2019-044-000444, 19 May 2020.
6      Crimes Act 1961, s 188(1). Maximum penalty is 14 years’ imprisonment.
7      Section 202C. Maximum penalty is five years’ imprisonment.
8      R v Heke [2020] NZDC 14133.

occurred in April 2019 and relates to a violent altercation Ms Heke had with her neighbour. I shall summarise each.

February offending

[6]At the time of the offending, Ms Heke was 19 years old.

[7] On 2 February 2019 at approximately 4:00 pm, Ms Heke was driving near Warkworth. As she approached a junction with State Highway 1 (SH1), a number of motorcycles were stationary at a give way sign, waiting…

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 Heke v The Queen

Details

AGLC: Heke v The Queen [2020] NZHC 2602
Case: [2020] NZHC 2602
Decision Date: 5 October 2020

CaseChat Overview and Summary

Misty Heke appeals her sentence for a series of serious criminal offences committed while under the influence of alcohol. The offences include driving a car into two motorcyclists, failing to stop and causing grievous bodily harm, failing to stop when followed by red/blue flashing lights, driving with a breath alcohol level over 400 micrograms per litre of breath, assault with a weapon, and causing grievous bodily harm with intent to cause grievous bodily harm. The appeal is against the sentence of five years’ imprisonment imposed in the District Court. Ms Heke’s appeal is limited to two issues: the application of the guilty plea discount and the failure to give a discount for cultural and background factors. In relation to the first issue, the Court finds the District Court Judge erred in applying the guilty plea discount. The Court considers that applying the discount according to the methodology established in Moses v R would have resulted in a sentence of approximately four years and 10 months. In relation to the second issue, the Court finds the District Court Judge erred by not allowing any discount for cultural background factors. The Court considers that a 15 per cent discount for cultural and background factors is appropriate. The Court finds that the overall sentence of five years’ imprisonment was manifestly excessive and substitutes a sentence of three years’ and 10 months’ imprisonment. The appeal is allowed, the original sentence is quashed, and a new sentence is substituted.

Orders