Himiona v Police - [2012] NZHC 1756

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI 2012-463-25 [2012] NZHC 1756

BETWEEN TE AO MAAKARIINI HIMIONA Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 18 July 2012

Appearances: S R Franklin and K Scott for Appellant
N G Belton for Respondent

Judgment: 18 July 2012

(ORAL) JUDGMENT OF HEATH J

Solicitors: Hamertons, Tauranga Crown Solicitor, Tauranga

HIMIONA V NEW ZEALAND POLICE HC TAU CRI 2012-463-25 [18 July 2012]

The appeal

[1] Mr Himiona appeals against a sentence imposed in the District Court at Whakatane, on 2 May 2012, on charges of driving with an excess breath alcohol concentration and driving while disqualified. Judge P A Moran sentenced Mr Himiona to an effective term of imprisonment of two years. Counsel for Mr Himiona submit that sentence was clearly excessive.

Facts

[2] At about 12.10pm on Friday 23 March 2012, Mr Himiona was driving a motor vehicle along Goulstone Road, Whakatane. Police officers had been searching for Mr Himiona’s vehicle. They had received a telephone call from a concerned citizen regarding his sobriety. Mr Himiona had been refused permission to purchase alcohol at a local supermarket. When he was stopped, he was leaving another liquor outlet, after making a purchase.

[3] When spoken to by a police officer, Mr Himiona was severely intoxicated. The summary of facts records that he “smelt strongly of alcohol, was slurring his words and was stumbling around”.

[4] Mr Himiona refused to undergo a roadside breath screening test. An evidential breath test was administered. The result was a reading of 1520 micrograms of alcohol per litre of breath. That is nearly four times the legal limit of
400 micrograms of alcohol per litre of breath. No blood test was requested.

[5] Mr Himiona admitted to the Police that he had consumed “a box” of beer before driving. Also, he admitted freely that he was a disqualified driver. At the time of his arrest, Mr Himiona was aged 41 years.

Previous traffic history

[6] This is not the first occasion on which Mr Himiona has been before the Courts on charges of this kind. He has six previous convictions, spanning the period between 1990 and 2008, arising out of alcohol impaired driving. He has also accumulated some 12 convictions for driving while disqualified over that period.

[7] Not only have there been six previous convictions, but they have been at levels which cause much concern. On two prior occasions in 1993 and 1997, Mr Himiona was apprehended driving with 1101 micrograms of alcohol per litre of breath and 1023 micrograms of alcohol per litre of breath, respectively. On two other occasions the levels were 700 micrograms of alcohol per litre of breath and
760 micrograms of alcohol per litre of breath respectively. On one occasion, in

2002, the level of alcohol is unknown as Mr Himiona was convicted on a charge of refusing to supply a sample.

[8] That is the context in which the sentence imposed falls to be considered.

Sentencing in the District Court

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 Himiona v Police

Details

AGLC: Himiona v Police [2012] NZHC 1756
Case: [2012] NZHC 1756
Decision Date: 18 July 2012

CaseChat Overview and Summary

Te Ao Maakarini Himiona appeals against the sentence imposed by Judge P A Moran in the District Court at Whakatane on 2 May 2012, following his conviction for driving with an excess breath alcohol concentration and driving while disqualified. Himiona was sentenced to an effective term of imprisonment of two years, which his counsel contends was clearly excessive. The appeal involves the assessment of the appropriate sentence for a repeat offender with a history of alcohol-impaired driving and driving while disqualified.

The central legal issue before the court was whether the sentence imposed by the District Court was clearly excessive. The court had to consider the gravity of Himiona’s repeated alcohol-impaired driving and disqualified driving, as well as the need to protect the public and ensure deterrence.

The court found that the starting points for the sentences were within the appropriate range, and the accumulation of sentences was justified. The court emphasised the need to protect the community from Himiona, given his history of driving with extremely high breath alcohol concentrations and his persistent disregard for driving disqualification orders. The court noted that cumulative sentences are appropriate in such cases to reflect the totality of the criminality involved. The court concluded that the sentence of two years imprisonment was not clearly excessive and dismissed the appeal.

The final orders of the court were to dismiss Himiona's appeal against the sentence imposed by the District Court. The court further commented on the appropriate credit for early guilty pleas in light of recent Supreme Court decisions, noting that sentencing courts should consider more flexible credits for pleas when there is limited opportunity to challenge the prosecution case.

Orders