Hemana v The the Queen - [2022] NZHC 999

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-000064 CRI-2022-404-000066

CRI-2022-404-000123 [2022] NZHC 999

BETWEEN
DYLAN HEMANA

Appellant

AND

THE QUEEN

Respondent

Hearing: 9 May 2022

Appearances:

A Millington for Appellant B Archibald for Respondent

Judgment:

11 May 2022

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 11 May 2022 at 3.00 pm
Registrar/Deputy Registrar Date:…………………………

Solicitors/counsel:
Public Defence Service, Albany, Auckland Meredith Connell, Auckland

HEMANA v R [2022] NZHC 999 [11 May 2022]

Introduction

[1] The appellant, Dylan Hemana, appeals the sentence of one year and four months’ imprisonment imposed on him by Judge E M Thomas in the District Court at Auckland on 25 February 2022.1 The sentence was imposed after Mr Hemana had entered guilty pleas in respect of the following charges:

(a)contravening a protection order (a representative charge);

(b)assault on a person in a family relationship;

(c)unlawfully possessing a restricted weapon; and

(d)contravening a protection order.

[2] Mr Hemana argued that the sentence is manifestly excessive. He initially sought to appeal on the basis that the starting point adopted by the Judge was too high, but this ground of appeal was abandoned by Ms Millington, acting on his behalf, at the appeal hearing. Other grounds of appeal were however maintained – namely, that Mr Hemana was given insufficient credit for personal mitigating factors and that the Judge erred in the inferences he drew from the pre-sentence report.

[3] The Crown opposed the appeal. It argued that the Judge made no error, that he properly exercised his discretion in deciding that imprisonment was the appropriate end sentence and that the sentence imposed was well within the available range given the offending in issue.

The offending

[4] The victim of the majority of the offending was Mr Hemana’s former partner. She has a protection order in her favour. It has been in place since 2014. The order also protects the victim and Mr Hemana’s two children. Mr Hemana has three prior convictions for breaching the protection order. He also has previous convictions for inflicting violence on the victim.

1 R v Hemana [2022] NZDC 4392.

9 June 2021 offending

[5] On 9 June 2021, at around 7.30 am, Mr Hemana sent a text to the victim, asking her to visit his sister. She told him to leave her alone. He tried to ring her – she hung up on him. She followed this up with a text message saying “Dylan please leave me alone the constant calling and texting. You said you were staying away”. Notwithstanding this rebuff, Mr Hemana then sent approximately 64 text messages and made some 50 phone calls to the victim over a period of some five hours. Many of the text messages were abusive and derogatory.

[6] At about 5.30 pm on the same day, the victim was at a birthing centre in a town north of Auckland. Mr Hemana parked his truck next to her car and waited…

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 The the Queen

Details

AGLC: Hemana v The the Queen [2022] NZHC 999
Case: [2022] NZHC 999
Decision Date: 11 May 2022

CaseChat Overview and Summary

Dylan Hemana appeals the one year and four months’ imprisonment sentence imposed on him by the District Court for breaching a protection order, assaulting his former partner, possessing a restricted weapon, and breaching the protection order again. He argues that the sentence is manifestly excessive, claiming that insufficient credit was given for personal mitigating factors and that the Judge erred in the inferences he drew from the pre-sentence report. The Crown opposes the appeal, arguing that the Judge made no error, properly exercised his discretion, and that the sentence imposed was well within the available range. The High Court found that the Judge did not err in declining to give a discrete discount to Mr Hemana for his letter of remorse, or when he declined to explicitly allow him a discount for the time spent on electronically monitored (EM) bail. The Judge also did not err in his assessment of the pre-sentence report. The Court agreed with the Judge that Mr Hemana must take ownership of his obsession with the victim and leave her alone. Given the recidivist nature of Mr Hemana’s offending, a short-term sentence of imprisonment was the only realistic sentence available to the Court. The appeal was dismissed.

Orders