Te Amo v R - [2010] NZCA 307

IN THE COURT OF APPEAL OF NEW ZEALAND
CA230/2010
[2010] NZCA 307
BETWEENPEARL JANINE WIKI TE AMO

Appellant

ANDTHE QUEEN

Respondent

Hearing:6 July 2010

Court:Ellen France, Stevens and Wild JJ
Counsel:N Levy for Appellant

F Sinclair for Respondent

Judgment:20 July 2010 at 10.30 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT
(Given by Stevens J)
Introduction
[1]        Shortly after being charged with one count of driving with excess breath alcohol causing death, the appellant pleaded guilty. To a second charge of failing to stop and ascertain injury after an accident in which a person had been killed, the appellant entered a plea of not guilty but changed the plea to guilty on the eve of the trial. Subsequently, she was sentenced by Judge Phillips in the District Court at Invercargill to two years and four months’ imprisonment.[1] The appellant appeals against that sentence. The Judge also ordered the appellant to make an emotional harm reparation payment of $20,000 to the family of the person killed in the accident, the $20,000 having been offered by the appellant. The Judge disqualified the appellant from driving for a period of three years. These aspects of the sentencing are not appealed.
Factual background
[1]      R v Te Amo DC Invercargill CRI-2009-025-2206, 30 March 2010.
[2]        On 15 May 2009, the appellant and her partner attended a work function at a local hotel. They arrived at around 4.30pm. They consumed a considerable amount of alcohol. At around 10pm the appellant’s intoxicated partner was asked to leave. The function was shut down. The appellant continued consuming alcohol in the public bar. The appellant’s partner returned and was again asked to leave. The appellant and her partner became abusive. Both were asked to leave.
[3]        Notwithstanding that the hotel operated a free courtesy coach, the appellant decided to drive home. Her partner travelled in the passenger’s seat. At a nearby intersection, the appellant drove through a red light and collided with another car. The sole occupant of that car suffered fatal head injuries on impact. The impact caused the appellant’s vehicle to spin and collide with a traffic light. The appellant drove off. After some 200 metres the appellant stopped. The appellant’s partner went to the driver’s door and the appellant moved over to the passenger’s seat. The appellant’s partner drove the vehicle to their home.
[4]        Police arrived at the home shortly afterwards. Evidential breath tests showed the appellant’s breath alcohol level was 938 micrograms per litre, and her partner’s was 481 micrograms (the legal limit for driving being 400). The appellant initially denied having been in the vehicle. She claimed that she and her partner had walked home. Only later did she admit to having driven.
Sentencing
[5]        In assessing the appellant’s culpability, Judge Phillips took into account her “extremely high” level of breath alcohol, the death of the victim and her failure to stop and ascertain injury. These were described as “majorly aggravating” factors as a…

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 Te Amo v R

Details

AGLC: Te Amo v R [2010] NZCA 307
Case: [2010] NZCA 307
Decision Date: 20 July 2010

CaseChat Overview and Summary

Pearl Janine Wiki Te Amo appealed against her sentence in the Court of Appeal of New Zealand. Te Amo was sentenced to two years and four months' imprisonment after pleading guilty to driving with excess breath alcohol causing death and failing to stop and ascertain injury after an accident in which a person was killed. The appeal against the sentence was dismissed by the Court of Appeal, which found no error in the sentencing Judge's assessment of Te Amo's culpability and the factors considered in determining the sentence. The Court of Appeal considered the appellant's arguments that the sentencing Judge erred in assessing culpability, imposing an uplift for a prior conviction, making an allowance for the emotional harm reparation payment, and imposing a sentence inconsistent with that of her partner. The Court of Appeal found that the final starting point adopted by the sentencing Judge was within range, and there was no merit in the argument that the sentencing Judge failed to hold a disputed facts hearing. The Court of Appeal also found that the amount of discount for an emotional harm payment depended on the facts of the case and the impact on the victim, and the final sentence was reached after allowing a significant discount of 15 months' imprisonment. The Court of Appeal was satisfied that there was nothing inconsistent with the sentence imposed on Te Amo's partner that would assist her appeal. The appeal against the sentence was dismissed.

Orders