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  reviewed  a  number  of authorities for the purpose of identifying where the current offending might sit in the spectrum of cases that have come before this Court.  As a result, I think some broad generalisations about starting points are supportable, namely:

2      McCrae v Police [2012] NZHC 2008.

3      Clotworthy v Police (2003) 20 CRNZ 439 (HC).

4      Samson v Police [2015] NZHC 748.

(a)     No  seriously or only moderately aggravating factors,  9–12 months;

(b)     One or more seriously aggravating factors, 12–18 months;

(c)     Multiple offences with seriously aggravating factors, 18–20 months; and

(d)     Multiple offences and very serious aggravating factors (i.e. offending of the worst kind), 20–24 months.

[16]      Seriously aggravating factors that appeared to resonate strongly in the sentencing process included a high level of intoxication, dangerous driving, very close proximity in previous EBA offending, and/or a prolonged and continuous history of driving-related offending.   Conversely, the following mitigating factors appeared significant in terms of the length of end sentence and/or the type of sentence (e.g. home detention):

(a)     The absence of seriously aggravating factors; (b)     High levels of remorse;

(c)     Genuine  attempts  to  address  the  underlying  causes  of  the offending;

(d)     No previous sentence of imprisonment;

(e)     No previous sentence with a rehabilitative focus; and/or

(f)     Lengthy gaps between the current and prior offending.

[17]      To be clear, the foregoing summary does not purport to provide tariffs  or  a  complete  list of  matters to  be  considered.    It  is  simply the outcome  of  a  canvass  of  authorities  which  I have  found  useful  for  the purpose of commencing the finer grained assessment required in this appeal.

[6]      Mr Stuart contends that the aggravating factors of multiple offences, high level of intoxication, associated driving while disqualified, previous sentences of imprisonment,  and  the  close  proximity of  time  between  this  and  Ms  Hemara’s previous conviction warrant the high starting point.  He canvasses similar cases to suggest the sentence is within range.

Analysis

[7]      This case involves Ms Hemara’s ninth conviction for driving with excess breath alcohol and driving while disqualified.  Prior to that her most recent offending occurred in 2013 which again involved driving with excess breath alcohol as well as driving while suspended.   This same pattern was generally repeated in the earlier

drink driving convictions in 2011, 2010, 2008, 2007, 2006, 2005 (two instances) and

1996.  In 2007 there were two discrete charges of driving while disqualified, one of them third or subsequent.  Although the convictions span 20 years, Ms Hemara has driven with excess breath alcohol and driven while disqualified seven times since

2005.  In addition the levels of alcohol in Ms Hemara’s system have invariably been extremely high.   I cannot ascertain any mitigating features of the offending or the offender.   Ms Hemara is remorseful, but the pre-sentence report suggests she has entitlement problems and a disdain for the law in relation to her driving following drinking.

[8]      Neither does an analysis of the various cases referred to assist the appellant. For example the case of McCrae relied on by the appellant as broadly analogous involved the appellant’s sixth conviction for driving with excess blood or breath alcohol, two of which occurred when he was under 20 and at least one of those was

at the youth limit.5    Furthermore, although there were prior convictions for driving

while disqualified, the exact number was unclear.  In the case of Corbett v Police a starting point of 18 months was upheld on charges of a sixth driving with excess breath alcohol and fifth driving while disqualified.6

[9]      In Koopu v Police a sentence of 21 months’ imprisonment was considered within range  for  the  appellant’s  eighth  drink  driving  and  seventh  driving while disqualified offences.7   The previous convictions predated those under appeal by six years.  In that case a starting point of 16 months’ imprisonment on the driving with excess breath alcohol and 12 months’ imprisonment cumulative for driving while disqualified were upheld.

[10]     In Hughes v R the Court of Appeal concluded the sentencing Judge did not err in imposing cumulative sentences in respect of driving while disqualified and driving with excess breath or blood alcohol when the offences were committed in a

single act of driving.8  The Court observed:9

5      Above, n 2.

6      Corbett v Police [2016] NZHC 2012.

7      Koopu v Police [2013] NZHC 1356.

8      Hughes v R [2012] NZCA 388.

9 At [22].

We are satisfied that the two offences involved in this case are different in kind.  As the District Court Judge said, the offence of driving with excess breath alcohol is concerned with road safety.  While the offence of driving while disqualified also bears upon road safety, it is primarily concerned with the enforcement of court orders.   Those who flout the orders of the court challenge the authority of the court and must be dealt with accordingly as part of the administration of justice.   In those circumstances, cumulative sentences  of  imprisonment  are  generally  appropriate  in terms  of  s 84(1) whether or not they relate to a connected series of offences.

[11]     In this case the Judge adopted a starting point of 24 months’ imprisonment in respect of both charges.   Even accepting Mr Forster’s submission that the driving with  excess  breath  alcohol  offending  was  not  at  the  most  serious  end  of  the spectrum, it would still attract a starting point of around 18 months’ imprisonment. The starting point would then require an increase of at least six months to take account of the driving while disqualified offending.  This could hardly be considered out  of  range  and  would  result  in  an  overall  starting  point  of  24  months’ imprisonment.  With the 25 per cent discount for the guilty plea, the end sentence would still be 18 months’ imprisonment.

[12]     I am satisfied there was no error in the Judge’s approach and the appeal is

dismissed.

Thomas J

Solicitors:

Crown Solicitors’ Office, Napier