IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI 2016-441-25 [2016] NZHC 1947
BETWEEN JIELING XIAO
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 16 August 2016
(Heard at Wellington via AVL)
Appearances:
S Jefferson for the Appellant
S Walker for the CrownJudgment:
19 August 2016
JUDGMENT OF MALLON J
Introduction
[1] Ms Xiao has pleaded guilty to a charge of dangerous driving causing death.1
She was sentenced in the District Court to 17 months imprisonment, ordered to pay emotional harm reparation of $10,000 and disqualified from holding or obtaining a driver’s licence for three years.2 Ms Xiao appeals against her sentence. She contends the Judge erred in deciding not to impose home detention.
The circumstances
[2] Ms Xiao is a 27 year old visitor from China. She was in New Zealand on a one year working visa which was due to end on 6 July 2016. She holds a full Chinese driver’s licence, which entitled her to drive in New Zealand. She had never driven a vehicle on an open road, in a rural environment at speeds in excess of
50 km/h. By her own admission she is not a confident driver.
1 Land Transport Act 1998, s 36AA(1)(b). Maximum penalty 10 years imprisonment or a $20,000 fine.
2 R v Xiao [2016] NZDC 11043.
XIAO v NEW ZEALAND POLICE [2016] NZHC 1947 [19 August 2016]
[3] She and a friend, who was also from China, purchased a car in late January
2016. She says she had studied the Road Code and practised driving around town to ensure she was feeling confident.
[4] She and her friend planned to drive from the Napier area to Te Puke on 7
February 2016 to attend a work-site induction event. On 6 February 2016 she drove on the open road towards Waimarama Beach (a return drive of approximately one and half hours), with her friend as a passenger, to practice driving on the open road. Her passenger later described to the police that Ms Xiao was not slowing down for the corners and was turning sharply, and that it was not until she told Ms Xiao to slow down that she started to feel safe. For her part, Ms Xiao says she felt nervous and lacking confidence, but felt more confident on the return trip.
[5] On 7 February 2016 Ms Xiao and her friend embarked on the intended drive to Te Puke. Ms Xiao says she was not feeling confident but thought she would be able to drive to Taupo, and then rest, before travelling on to Rotorua, and then on to Te Puke. The road from Napier to Taupo is a windy road with a 100 km/h speed limit.
[6] At about 9.50am Ms Xiao and her passenger were driving along State Highway 5 through Eskdale making their way to Taupo. The weather was fine and the traffic conditions were moderate. Two occupants of a Toyota Corolla following Ms Xiao’s car later reported to the police that Ms Xiao’s…
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