IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI-2017-441-19 [2017] NZHC 1671
BETWEEN LEONIE HINE HEMARA
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 18 July 2017 Counsel:
E J Forster for Appellant
C R Stuart for RespondentJudgment:
21 July 2017
JUDGMENT OF THOMAS J
Introduction
[1] Judge Rea sentenced Leonie Hemara to 18 months’ imprisonment for driving with excess breath alcohol and driving while disqualified at the District Court at Hastings on 26 April 2017, she having been convicted at least twice previously of both types of offence. In fact, the convictions were her ninth conviction for each type of offence.1 Ms Hemara appeals on the ground the sentence was manifestly excessive.
Facts
[2] Ms Hemara was stopped at a routine traffic stop on 16 February 2017 and was found to have a breath alcohol level of 939 micrograms, almost 2.5 times the
legal limit. She was disqualified from driving at the time.
1 The maximum penalty for both offences is two years’ imprisonment: Land Transport Act 1998, ss 32(1)(a) and 32(4); ss 56(1) and 56(4).
HEMARA v NEW ZEALAND POLICE [2017] NZHC 1671 [21 July 2017]
The District Court decision
[3] Judge Rea outlined the facts and noted Ms Hemara’s letter of remorse, but considered it was incongruent with Ms Hemara’s consistent accumulation of similar convictions since 1996. The Judge considered she had many opportunities to address her issues, but instead continued to place herself and others at risk of death or serious injury due to her offending. He rejected the submission that eight months’ imprisonment was an appropriate starting point, and instead set the starting point at two years and allowed a 25 per cent discount for Ms Hemara’s guilty plea. The end sentence was 18 months’ imprisonment and disqualification from driving for one year and one day.
Submissions
[4] Mr Forster for Ms Hemara draws attention to a table of other cases to compare sentence length with other circumstances such as the number of prior convictions and the level of intoxication. He suggests the offending is on par with that in McCrae v Police where the end sentence was 12 months’ imprisonment.2 He also draws attention to Clotworthy v Police where Wild J tabulated similar cases, and suggests this case fits within the eight to 15 month sentence band.3
[5] Mr Stuart for the respondent submits there is no identifiable error in Judge Rea’s decision, and the end sentence was within range. He refers to Samson v Police where Whata J considered starting points for third or subsequent offending and commented on aggravating features as follows: 4
[15] Unsurprisingly, sentencing for this type of offending is not amenable to tariff-like categorisation. But the resolution of EBA (third and subsequent) appeals has become encumbered by numerous and diverse responses to what, at first gloss, appear to be similar fact offending. In order to make some sense of the jurisprudence, and with the assistance of counsel in this appeal and in Bechan v Police, I have…
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- Hemara v Police [2017] NZHC 1671
- Case
- [2017] NZHC 1671
- Decision Date
CaseChat Overview and Summary
The court examined the legal issues involved in the case, including whether the sentence was manifestly excessive and whether the court had considered all relevant factors in arriving at the sentence. The court also compared the case to other similar cases to determine whether the sentence was within range.
The court found that the sentence was not manifestly excessive and that the District Court had correctly considered all relevant factors in arriving at the sentence. The court noted that the appellant had a lengthy history of driving-related offending, including nine prior convictions for the same offences. The court also noted that the appellant had shown a disregard for the law in relation to her driving following drinking. The court concluded that the sentence was within range and that there was no error in the District Court’s approach.
The court dismissed the appeal and confirmed the sentence of 18 months’ imprisonment and disqualification from driving for one year and one day. The court held that the sentence was appropriate given the appellant’s history of offending and the seriousness of the current offences.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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