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 RespondentJudgment:
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…
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CaseChat Overview and Summary
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
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Background
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Evidence
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Decision
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Ratio Decidendi
Legal Principle Established
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