Hemana v Police - [2014] NZHC 1133

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000088 [2014] NZHC 1133

BETWEEN
JEWELLYNDEL HEMANA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 26 May 2014

Appearances:

C L Sigamoney and J M O'Halloran for Appellant
J Barry for Respondent

Judgment:

27 May 2014

JUDGMENT OF VENNING J

This judgment was delivered by me on 27 May 2014 at 3.00 pm, pursuant to Rule 11.5 of the High
Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Public Defence Service, Auckland
Meredith Connell, Auckland

HEMANA v NZ POLICE [2014] NZHC 1133 [27 May 2014]

[1] Ms Hemana appeals against a decision of Judge MacAskill declining to grant her application for a community based sentence in lieu of disqualification.1

Background

[2] On 17 September 2013 at about 10.00 am in the morning, Ms Hemana was driving a car on Moire Road, Massey. She had been to collect medication for her ill mother from the pharmacy. She was stopped by the police. Ms Hemana had previously been convicted of driving whilst suspended on 7 November 2012 and driving whilst disqualified on 23 July 2013.

[3] Ms Hemana was charged with driving whilst disqualified (third or subsequent pursuant to ss 32(1)(a) and 32(4) of the Land Transport Act 1988 (the Act)). Ms Hemana pleaded guilty and made an application pursuant to s 94 of the Act.

The District Court decision

[4] Judge MacAskill accepted that it was open for Ms Hemana to apply under s 94 for the substitution of a community based sentence in place of a further order of disqualification but declined her application. The Judge sentenced Ms Hemana to
120 hours community work and disqualified her for 13 months commencing on 27

March 2014.

[5] Having regard to the circumstances of the offending and Ms Hemana’s personal circumstances the Judge was not persuaded that a sentence of community work was more appropriate than disqualification.

The appeal

[6] Ms Hemana appeals on the basis that the Judge: (a) erred in principle;
(b) took into account irrelevant considerations; and

1 New Zealand Police v Hemana DC Waitakere CRI-2013-090-005559, 27 March 2014.

(c) gave insufficient weight to Ms Hemana’s personal circumstances and the effect of disqualification on her.

[7] In particular Ms Sigamoney submitted the Judge took into account:

(a) irrelevant considerations, namely that Ms Hemana could not be described as a recidivist offender;

(b)placed too much weight on the fact that she was unable to obtain a limited licence under s 103(2)(c) of the Act; and

(c) irrelevant considerations as to the numbers breaching community work sentences.

[8] Counsel referred to a number of decisions of this Court where s 94 has been discussed and applied.2 While I have had regard to those cases and the principles established, the cases make it clear that the particular facts of each case are determinative of the outcome.

Decision

[9] Counsel approached this matter as an appeal against discretion. I am content to deal with it on that basis.

[10] Section 94 is not limited to repeat…

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 Hemana v Police

Details

AGLC: Hemana v Police [2014] NZHC 1133
Case: [2014] NZHC 1133
Decision Date: 27 May 2014

CaseChat Overview and Summary

In the case of Hemana v Police, the appellant, Jewellen Del Hemana, appealed against a decision by Judge MacAskill, who declined to grant her application for a community-based sentence in lieu of disqualification. The appellant was charged with driving while disqualified, which was her third or subsequent offence under sections 32(1)(a) and 32(4) of the Land Transport Act 1998. Ms Hemana pleaded guilty to the charges and applied for a community-based sentence under section 94 of the Act. The District Court sentenced Ms Hemana to 120 hours of community work and disqualified her for 13 months. The appellant argued that the Judge erred in principle, took into account irrelevant considerations, and gave insufficient weight to her personal circumstances and the effect of disqualification on her.

The court found that the Judge was not persuaded that a sentence of community work was more appropriate than disqualification, taking into account the circumstances of the offending and Ms Hemana's personal circumstances. The court dismissed the appeal and upheld the District Court's decision, finding that the Judge's ultimate conclusion was correct having regard to the considerations in sections 94(1)(b) and (c). The court held that it would not be inappropriate to order Ms Hemana to be disqualified from holding or obtaining a driver's licence in this case. The appeal was therefore dismissed.

Orders