Hemara v Police - [2017] NZHC 1671

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 Respondent

Judgment:

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…

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 Hemara v Police

Details

AGLC: Hemara v Police [2017] NZHC 1671
Case: [2017] NZHC 1671
Decision Date: 21 July 2017

CaseChat Overview and Summary

Leonie Hemara was sentenced to 18 months’ imprisonment by the District Court for driving with excess breath alcohol and driving while disqualified. She appealed against the sentence on the basis that it was manifestly excessive. The court considered the appeal and determined that there was no error in the sentencing decision.

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