HEMARA v NEW ZEALAND POLICE [2017] NZHC 1671

HEMARA v NEW ZEALAND POLICE [2017] NZHC 1671 [21 July 2017]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYCRI-2017-441-19[2017] NZHC 1671BETWEEN LEONIE HINE HEMARAAppellantAND NEW ZEALAND POLICERespondentHearing: 18 July 2017Counsel: E J Forster for AppellantC R Stuart for RespondentJudgment: 21 July 2017JUDGMENT OF THOMAS JIntroduction[1] Judge Rea sentenced Leonie Hemara to 18 months' imprisonment for drivingwith excess breath alcohol and driving while disqualified at the District Court at Hastings on 26 April 2017, she having been convicted at least twice previously of both types of offence. In fact, the convictions were her ninth conviction for each type of offence.1 Ms Hemara appeals on the ground the sentence was manifestly excessive.Facts[2] Ms Hemara was stopped at a routine traffic stop on 16 February 2017 and was found to have a breath alcohol level of 939 micrograms, almost 2.5 times the legal limit. She was disqualified from driving at the time.1 The maximum penalty for both offences is two years' imprisonment: Land Transport Act 1998, ss 32(1)(a) and 32(4); ss 56(1) and 56(4).The District Court decision[3] Judge Rea outlined the facts and noted Ms Hemara's letter of remorse, butconsidered it was incongruent with Ms Hemara's consistent accumulation of similar convictions since 1996. The Judge considered she had many opportunities to address her issues, but instead continued to place herself and others at risk of death or serious injury due to her offending. He rejected the submission that eight months'imprisonment was an appropriate starting point, and instead set the starting point at two years and allowed a 25 per cent discount for Ms Hemara's guilty plea. The endsentence was 18 months' imprisonment and disqualification from driving for one year and one day.Submissions[4] Mr Forster for Ms Hemara draws attention to a table of other cases to compare sentence length with other circumstances such as the number of prior convictions and the level of intoxication. He suggests the offending is on par with that in McCrae v Police where the end sentence was 12 months' imprisonment.2 He also draws attention to Clotworthy v Police where Wild J tabulated similar cases, and suggests this case fits within the eight to 15 month sentence band.3[5] Mr Stuart for the respondent submits there is no identifiable error in JudgeRea's decision, and the end sentence was within range. He refers to Samson v Policewhere Whata J considered starting points for third or subsequent offending and commented on aggravating features as follows: 4[15] Unsurprisingly, sentencing for this type of offending is not amenable to tariff-like categorisation. But the resolution of EBA (third and subsequent) appeals has become encumbered by numerous and diverse responses to what, at first gloss, appear to be similar fact offending. In order to make some sense of the jurisprudence, and with the assistance of counsel in this appeal and in Bechan v Police, I have reviewed a number of authorities for the purpose of identifying where the current offending might sit in the spectrum of cases that have come before this Court. As a result, I think some broad generalisations about starting points are supportable, namely:2 McCrae v Police [2012] NZHC 2008.3 Clotworthy v Police (2003) 20 CRNZ 439 (HC).4 Samson v Police [2015] NZHC 748.(a) No seriously or only moderately aggravating factors, 9–12 months;(b) One or more seriously aggravating factors, 12–18 months;(c) Multiple offences with seriously aggravating factors, 18–20 months; and(d) Multiple offences and very serious aggravating factors (i.e. offending of the worst kind), 20–24 months.[16] Seriously aggravating factors that appeared to resonate strongly in the sentencing process included a high level of intoxication, dangerous driving, very close proximity in previous EBA offending, and/or a prolonged and continuous history of driving-related offending. Conversely, the following mitigating factors appeared significant in terms of the length of end sentence and/or the type of sentence (e.g. home detention):(a) The absence of seriously aggravating factors;(b) High levels of remorse;(c) Genuine attempts to address the underlying causes of the offending;(d) No previous sentence of imprisonment;(e) No previous sentence with a rehabilitative focus; and/or(f) Lengthy gaps between the current and prior offending.[17] To be clear, the foregoing summary does not purport to provide tariffs or a complete list of matters to be considered. It is simply the outcome of a canvass of authorities which I have found useful for the purpose of commencing the finer grained assessment required in this appeal.[6] Mr Stuart contends that the aggravating factors of multiple offences, high level of intoxication, associated driving while disqualified, previous sentences of imprisonment, and the close proximity of time between this and Ms Hemara'sprevious conviction warrant the high starting point. He canvasses similar cases to suggest the sentence is within range.Analysis[7] This case involves Ms Hemara's ninth conviction for driving with excess breath alcohol and driving while disqualified. Prior to that her most recent offending occurred in 2013 which again involved driving with excess breath alcohol as well as driving while suspended. This same pattern was generally repeated in the earlierdrink driving convictions in 2011, 2010, 2008, 2007, 2006, 2005 (two instances) and 1996. In 2007 there were two discrete charges of driving while disqualified, one of them third or subsequent. Although the convictions span 20 years, Ms Hemara has driven with excess breath alcohol and driven while disqualified seven times since 2005. In addition the levels of alcohol in Ms Hemara's system have invariably beenextremely high. I cannot ascertain any mitigating features of the offending or the offender. Ms Hemara is remorseful, but the pre-sentence report suggests she has entitlement problems and a disdain for the law in relation to her driving following drinking.[8] Neither does an analysis of the various cases referred to assist the appellant. For example the case of McCrae relied on by the appellant as broadly analogousinvolved the appellant's sixth conviction for driving with excess blood or breathalcohol, two of which occurred when he was under 20 and at least one of those was at the youth limit.5 Furthermore, although there were prior convictions for driving while disqualified, the exact number was unclear. In the case of Corbett v Police a starting point of 18 months was upheld on charges of a sixth driving with excess breath alcohol and fifth driving while disqualified.6[9] In Koopu v Police a sentence of 21 months' imprisonment was considered within range for the appellant's eighth drink driving and seventh driving whiledisqualified offences.7 The previous convictions predated those under appeal by six years. In that case a starting point of 16 months' imprisonment on the driving with excess breath alcohol and 12 months' imprisonment cumulative for driving while disqualified were upheld.[10] In Hughes v R the Court of Appeal concluded the sentencing Judge did not err in imposing cumulative sentences in respect of driving while disqualified and driving with excess breath or blood alcohol when the offences were committed in a single act of driving.8 The Court observed:95 Above, n 2.6 Corbett v Police [2016] NZHC 2012.7 Koopu v Police [2013] NZHC 1356.8 Hughes v R [2012] NZCA 388.9 At [22].We are satisfied that the two offences involved in this case are different in kind. As the District Court Judge said, the offence of driving with excess breath alcohol is concerned with road safety. While the offence of driving while disqualified also bears upon road safety, it is primarily concerned with the enforcement of court orders. Those who flout the orders of the court challenge the authority of the court and must be dealt with accordingly as part of the administration of justice. In those circumstances, cumulative sentences of imprisonment are generally appropriate in terms of s 84(1) whether or not they relate to a connected series of offences.[11] In this case the Judge adopted a starting point of 24 months' imprisonment in respect of both charges. Even accepting Mr Forster's submission that the drivingwith excess breath alcohol offending was not at the most serious end of the spectrum, it would still attract a starting point of around 18 months' imprisonment.The starting point would then require an increase of at least six months to take account of the driving while disqualified offending. This could hardly be consideredout of range and would result in an overall starting point of 24 months'imprisonment. With the 25 per cent discount for the guilty plea, the end sentencewould still be 18 months' imprisonment.[12] I am satisfied there was no error in the Judge's approach and the appeal isdismissed.Thomas JSolicitors:Crown Solicitors' Office, Napier