Hemi v Police
[2024] NZHC 1941
•15 July 2024
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 Hospital due to the seriousness of her injuries. She had a fractured talus, which required two five-centimetre screws and some wires to assist with the recovery, a normally straightforward procedure but complicated by the fact she was pregnant and could not have a general anaesthetic. She also sustained a significant knee laceration which has been a complex injury.
[6] Her statement indicates there have been ramifications for both her and her husband including anxiety, PTSD, social isolation, and unexpected costs.
Sentencing decision
[7] The Judge referred to Mr Hemi’s 45 previous convictions featuring many driving and violence offences and including five previous convictions for driving with excess blood or breath alcohol. Particular reference was made to the PAC report which said, ‘despite a zero-alcohol license… Mr Hemi is before the Court again having chosen to get behind the wheel while heavily intoxicated and aware he holds a zero-alcohol driver license’.
[8] In setting the starting point, the Judge identified as an aggravating feature of the offending that not only was Mr Hemi driving while intoxicated but was subject to a zero-alcohol license. Further, the Judge observed Mr Hemi had crossed the centre line and crashed head on with an innocent motorist who was heavily pregnant and suffered serious injuries. As to mitigating factors, the Judge noted Mr Hemi’s early guilty pleas, his remorse, offer to pay reparation, the letter Mr Hemi wrote to the victim, and Mr Hemi’s desire to engage with the Right Track Programme.
[9] The Judge considered the starting point of 36 months’ imprisonment as proposed by the police was too high and more appropriate for cases involving elements of excessive speed or reckless driving in addition to an excess breath or blood alcohol level. The Judge found that a starting point of 26 months’ imprisonment was consistent with other cases.
[10] An uplift of four months for Mr Hemi’s five previous convictions for driving with excess breath alcohol also applied, leading to an adjusted starting point of 30 months. A 25 per cent discount was afforded for Mr Hemi’s guilty pleas and a further 10 per cent discount for remorse and his longstanding problem with alcohol — an end sentence of 19 months’ imprisonment.
[11] The Judge did not consider home detention was appropriate because of Mr Hemi’s poor record of compliance with previous sentences, including a breach of supervision, two breaches of community detention, and a breach of home detention. The Judge was concerned that during one of the breaches Mr Hemi diverted to a local tavern, and on another occasion, he assaulted a barmaid while intoxicated. The Judge expressed doubts as to Mr Hemi’s level of insight into his offending.
[12] The Judge considered the sentencing principles of deterrence and denunciation were paramount in cases of repeat drink drivers and particularly when the offender was subject to a zero alcohol licence. The Judge found the least restrictive outcome in all the circumstances must be a sentence of imprisonment.
Law on appeal
[13] This Court must allow the appeal if there is an error in the sentence imposed and a different sentence should be imposed.3 Otherwise, the Court must dismiss the appeal.4 An appeal court must focus on the identification of error, having regard to the discretionary nature of the decision.5
[14] The Court of Appeal in Manikpersadh v R considered the appropriate approach in appeals against the refusal to grant home detention:6
An appeal against a refusal to grant home detention does not provide an opportunity to revisit or review the merits. The question is whether [the judge] erred in exercising his sentencing discretion: that is, did he apply an incorrect principle, give insufficient or excessive weight to a factor, or was he plainly wrong? Ms Guy Kidd for the Crown properly accepts that home detention can satisfy the objectives of deterrence and denunciation, but to a degree. We
3 Criminal Procedure Act 2011, s 250(2).
4 Section 250(3).
5 Doolan v R [2011] NZCA 542 at [39].
6 Manikpersadh v R [2011] NZCA 452 at [11].
are satisfied, in accordance with earlier authority in this Court, that the decision about whether home detention will meet those objectives in a particular case is a strictly evaluative exercise. It is a matter of judgment for the sentencing Judge to determine whether home detention is an adequate response to the seriousness of the offending.
And further:7
…the proper approach of an appellant Court in cases such as this is that “the choice between home detention and a short sentence of imprisonment is the exercise of a fettered discretion, with appellant review focusing … on the identification of error, if any, in the court below.”
[15]In Fairbrother v R, the Court of Appeal stated:8
…the judge must make a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.
[16]And finally, the Court of Appeal relevantly observed in Doolan v R:9
…In our view the critical point is that the sentencing decision as between imprisonment or home detention involves a discretionary exercise that necessarily engages all of the principles and purposes in ss 7 and 8 in the Sentencing Act. Those provisions of the Sentencing Act do not accord greater weight to factors such as denunciation or deterrence than the personal circumstances of the offender. The relative weight to be given to the principles and purposes of the Act is left to be determined by the sentencing judge in all the circumstances of the case.
(footnote omitted)
Submissions
Appellant submissions
[17] Mr Ross does not challenge the starting point adopted by the Judge or the level of credits allowed. He submits the Judge erred in favouring a sentence of imprisonment over a sentence of home detention. He challenges the reasons the Judge advanced for not imposing a sentence of home detention.
7 At [12].
8 Fairbrother v R [2013] NZCA 340 at [30].
9 Doolan v R [2011] NZCA 542 at [38].
[18] He submits that Mr Hemi’s attitude towards rehabilitation did not signal a lack of motivation but rather his concern as to the most effective type of rehabilitation. He says Mr Hemi’s remorse, as recognised by the Judge is at odds with a finding that Mr Hemi had a lack of insight.
[19] Mr Ross acknowledges Mr Hemi’s prior breaches of sentence and observes that on each occasion Mr Hemi was permitted to continue serving his sentence in the community and indeed completed each of those sentences. He submits there is nothing in Mr Hemi’s past that would indicate he would not comply with and complete a home detention sentence. He acknowledges Mr Hemi has offended whilst serving an electronically monitored sentence but observes he was subsequently sentenced to home detention and did not offend during that sentence.
[20] Mr Ross submits the Judge failed to properly consider whether a sentence of home detention could serve the principles of denunciation and deterrence, observing there is no presumption of imprisonment for offending of this nature. He submits the Judge failed give due regard to the countervailing sentencing principles including rehabilitation and reintegration.
[21] Shortly before the appeal hearing, Mr Ross filed a brief email from Mr Hemi’s partner describing a personal issue and her strong desire for Mr Hemi to be released on EM bail to provide her with ongoing support.
Respondent submissions
[22] Mr Brownlie, for the respondent, submits the Judge was not wrong to decline to impose a sentence of home detention. Mr Brownlie submits that the sentencing purposes of denunciation and deterrence, both general and specific, render a sentence of home detention inappropriate, having regard to Mr Hemi’s recidivist history of driving with excess breath alcohol; his history of breaching electronically monitored sentences; the risk his untreated alcohol issues pose to the community; an established principle that imprisonment for recidivist drink drivers is now the usual, if not necessarily the consequence; and the clear legislative intent that repeat drink drivers will be sentenced more severely.
Analysis
[23] Mr Ross is quite right to emphasise that there is no presumption either for or against commuting a sentence of imprisonment to one of home detention.10 The Court of Appeal has recognised that this is an issue that may be finely balanced and that the principles and purposes of sentencing as set out in the Sentencing Act 2002 (the Act) may sometimes point in opposing directions.11
[24] Mr Ross places significant reliance on s 16 of the Act. That provision requires the Court to have regard to the desirability of keeping offenders in the community and provides that a Court cannot impose a sentence of imprisonment unless satisfied that a purpose contained in s 7 of the Act could not be achieved by another type of sentence.
[25] Judge Walker concluded that denunciation and deterrence required a sentence of imprisonment. I find no error in the approach taken by the sentencing Judge.
[26] More particularly, the Judge did not err in finding that Mr Hemi had no insight into his offending. That finding was justified on the basis that as a recidivist drink driving offender, Mr Hemi reoffended whilst subject to a zero-alcohol license. I do not doubt that this offending, and the fact that he could so easily have killed a pregnant woman have caused him to reflect, express what I accept as genuine remorse and express a desire to engage in rehabilitation. But that of itself does not demonstrate insight. Mr Hemi would demonstrate insight by either ceasing drinking alcohol or ceasing to drive a motor vehicle. That much is plain.
[27] Mr Ross questions whether the Judge was correct to doubt the likelihood of Mr Hemi complying with a sentence of home detention. Mr Hemi has previously complied with a sentence of home detention, but he does have a history of non-compliance with electronically monitored sentences. It was open to the Judge to doubt whether Mr Hemi would comply with the restrictions of a sentence of home detention.
10 R v Vhavha [2009] NZCA 588, at [29]; adopted in Osman v R [2010] NZCA 199 at [20]; and
Doolan v R [2011] NZCA 542, at [37].
Palmer v R [2016] NZCA 541, at [19].
[28] In my view the relevant question in this appeal is not so much whether Mr Hemi would comply with a community-based sentence, but whether a sentence of home detention would meet the principles and purposes of sentencing.
[29] Mr Hemi appeared before Judge Walker with a shocking driving record featuring convictions for driving with excess breath or blood alcohol on 27 October 2000, 10 March 2009, 18 April 2010, 15 May 2018, and 6 December 2021.
[30] As was recognised by Venning J in Swenson v Police,12 imprisonment for recidivist offending is now the usual, if not necessarily, the inevitable consequence. This reflects the fact recidivist offending shows a disinclination on the part of the offender to change or address their offending behaviour despite intervention from the criminal justice system.
[31] Aggravating Mr Hemi’s sixth conviction for driving under the influence of alcohol is that at the time he was on a zero-alcohol license and that his offending caused a very serious injury to an innocent road user. The consequences for the victim have been profound. The Judge was therefore quite right to consider the sentencing purposes of denunciation and deterrence were paramount.
[32] Mr Hemi’s offending reflects very serious offending of its type. The victim suffered a very serious injury. She could easily have been killed given the speeds at which the respective vehicles were travelling. That Mr Hemi, a recidivist offender who has previously been permitted to serve community-based sentences was driving on a zero-alcohol license with such a high blood alcohol level seriously aggravates his offending and highlights the need for a deterrent sentence. In my view that must be a sentence of imprisonment.
[33] I do not accept that the Judge failed to consider whether a sentence of home detention could satisfy the sentencing purposes of denunciation and deterrence.
[34] This is not a case where Mr Hemi has not previously received a sentence with a strong rehabilitative component. On his fourth conviction for driving with excess
12 Swenson v Police [2016] NZHC 1625.
blood alcohol, Mr Hemi was sentenced to 100 community work and six months’ supervision. On his fifth conviction, and although the record is not entirely clear, it does seem he was sentenced on 6 December 2021 to home detention. It is highly likely that sentence had a rehabilitative component. Further, the Judge saw fit to impose special release conditions on the current sentence of imprisonment intended to address Mr Hemi’s rehabilitative needs. Mr Hemi’s rehabilitative needs were not overlooked.
[35] I have considered the email from Mr Hemi’s partner. It is natural that she should seek his support. Those personal circumstances cannot impact the assessment of the appropriate sentence in a case involving such serious offending.
[36] Finally, I observe that the Judge incorrectly applied Moses v R.13 If correctly applied, on my calculations, the end sentence would have been one of 21 months’ imprisonment and not 19 months. I do not propose to interfere with the sentence on that account.
[37] Finally, and as Mr Ross acknowledges, given the period of pre-sentence incarceration, Mr Hemi has now almost served his complete sentence. If I had been inclined to substitute a sentence of home detention, it could only have been for a period of around two months. I do not consider a sentence of two months’ home detention in the circumstances of this case to have any real rehabilitative benefit.
Result
[38]The appeal is dismissed.
...................................................
Eaton J
Solicitors:
Crown Solicitors, Invercargill
Counsel:
J A T Ross, Barrister, Invercargill
13 Moses v R [2020] NZCA 296.
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