Hemi v Police - [2024] NZHC 1941

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2024-425-26

[2024] NZHC 1941

BETWEEN
RAYMOND DAPHORD HEMI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 15 July 2024

Appearances:

J A T Ross for Appellant

M B Brownlie for Respondent

Judgment:

15 July 2024

JUDGMENT OF EATON J

(appeal against sentence)

This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

HEMI v NEW ZEALAND POLICE [2024] NZHC 1941 [15 July 2024]

Introduction

[1] Raymond Hemi pleaded guilty to driving with excess blood alcohol causing injury (third or subsequent),1 and driving with a zero-alcohol license while having an excess blood alcohol level.2 On 11 March 2024 he was sentenced by Judge R J Walker to 19 months’ imprisonment. Mr Hemi was also disqualified from driving for a period of 15 months and ordered to pay reparation. Mr Hemi now appeals his sentence. He says the least restrictive appropriate sentence is a sentence of home detention. He does not challenge the disqualification or reparation components of the sentence.

The facts

[2] On 15 May 2018 Mr Hemi appeared in the Invercargill District Court and was convicted on a charge of driving with excess breath alcohol (third or subsequent). On 22 September 2020 he appeared in the Queenstown District Court and was convicted on a charge of driving with excess breath alcohol. The sentence on that occasion included a zero-alcohol license.

[3] As for the current offending, on 20 September 2023, Mr Hemi was driving south on Lake Hayes Arrow Junction highway. He was travelling at about 80 kilometres per hour. Mr Hemi crossed the centre line and crashed head on into the victim’s vehicle, which was travelling north in the lane opposite at 80 kilometres per hour. The victim, who was heavily pregnant, received multiple serious injuries including a fractured leg requiring surgery and multiple lacerations to her head and stomach.

[4] Mr Hemi provided a blood sample that confirmed a blood alcohol level of 193 milligrams of alcohol per hundred millilitres of blood. Mr Hemi said he did not recall crossing the centre line, that he had been drinking at a hotel in Arrowtown prior to the crash and that he thought he would be okay to drive.

1 Land Transport Act 1998, s 61(1)(b) and 61(3A). Maximum penalty: five years’ imprisonment or a fine not exceeding $2,000. The court must order the person to be disqualified from holding or obtaining a licence for one year or more.
2 Land Transport Act 1998, s 57AA(5) and 57AA(6). Maximum penalty: two years’ imprisonment or a fine not exceeding $6,000. The court must order the person to be disqualified from holding or obtaining a driver licence for one year or more.

Victim impact statement

[5] The victim was a 27-year-old female. She received multiple injuries in the crash. She was initially transported to the Lakes District Hospital but was then transferred to Dunedin…

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 Hemi v Police

Details

AGLC: Hemi v Police [2024] NZHC 1941
Case: [2024] NZHC 1941
Decision Date: 15 July 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Raymond Hemi appeals against his sentence for driving with excess blood alcohol causing injury and driving with a zero-alcohol license while having an excess blood alcohol level. Hemi was sentenced to 19 months’ imprisonment, disqualified from driving for 15 months, and ordered to pay reparation. Hemi argues that the least restrictive appropriate sentence is home detention. The central legal issues concern whether the trial judge erred in imposing a sentence of imprisonment instead of home detention, and whether the sentence imposed adequately addressed the purposes of denunciation, deterrence, and rehabilitation.

The court considered whether the sentencing judge erred in not imposing a sentence of home detention. It was noted that there is no presumption for or against commuting a sentence of imprisonment to home detention. The sentencing purposes of denunciation and deterrence were found to be paramount due to Hemi's history of driving with excess alcohol, his disregard for a zero-alcohol license, and the serious injury caused to the victim. The court found no error in the judge's conclusion that Hemi had no insight into his offending, given his repeated offending despite previous sentences. The judge was entitled to doubt Hemi's likelihood of compliance with home detention, given his history of breaching electronically monitored sentences. The court concluded that a sentence of imprisonment was necessary to meet the purposes of denunciation and deterrence, and that home detention would not be an adequate response to the seriousness of the offending.

The appeal was dismissed. The court found no error in the judge's sentencing decision and noted that Hemi had almost served his sentence. The court did not consider a sentence of two months’ home detention to have any real rehabilitative benefit in these circumstances.

Orders