A tourist driver has had her appeal heard in the Napier High Court this morning after being jailed for killing a young motorcyclist earlier this year.
Jieling Xiao's appeal was heard by Justice Mallon, two months into a 17-month prison sentence.
Her lawyer Scott Jefferson argued for a sentence of home detention.
Xiao pleaded guilty in May to driving dangerously and causing a crash on State Highway Five, north of Napier, in February, which killed Tauranga man Rhys Middleton.
Mr Middleton was travelling with five motorcycle companions, including his father and brother, as they returned home from a gathering of bike enthusiasts in Havelock North.
Xiao, who was also disqualified from driving for three years and paid $10,000 reparation the day she was sentenced, was on a New Zealand on a 12-month working visa.
She had a full driver's licence in China for six years but had limited experience driving in 100kph zones or on single lane rural roads.
Mr Jefferson said Judge Bridget Mackintosh, who sentenced Xiao, ought to have also taken into account his client's immigration status. The tourist was due to return to China in July.
He said a sentence of home detention clearly met the need for denunciation and held people to account.
A sentence of greater than two years' imprisonment indicated very serious offending, and if it falls below that threshold then home detention was considered.
"We have a young Chinese woman in New Zealand for a 12 month period, she is a licenced driver, she complied with the licencing programme in this country," Mr Jefferson said.
"We have foreign nationals in the country for a very short period of time all clearly aware that they're probably falling short of experience [who] do drive."
He said it was "manifestly excessive" to expect Xiao to serve a full time custodial sentence.
Xiao had driven to Waimarama Beach the day before the tragic crash to gain some more driving experience.
Despite admitting her inexperience she continued still chose to drive to Rotorua the next day. She had planned a rest stop in Taupo before continuing to Rotorua.
Appearing for the crown, Clayton Walker said Xiao's drive to the beach demonstrated to her, her lack of experience.
He said it was "relevant in assessing her level of culpability on the day of the accident".
"It is the combination of what happened on the day together with what she knew or ought to have known about her own ability."
Mr Jefferson said his client had fulfilled every requirement to drive in New Zealand and disagreed with the crown's submission that it was "simply an accident waiting to happen".
Justice Mallons said while other motorists had observed fluctuations in speed the tourist had not been speeding and that worked in her favour.
She said changes in speed were normal on windy roads.
But Mr Walker said this had not been the case.
The crash involved Xiao driving completely off the left side of the road before veering back into her lane which was when she struck Mr Middleton.
"What was involved here was grossly incompetent driving," Mr Walker said.
He said a judge should not take into account the immigration status of a defendant during sentencing.
Justice Mallons said it was up to immigration to issue a deportation notice
She said foreign drivers had "become an issue of widespread public concern".
But if they complied with New Zealand laws and the regulatory environment then they were entitled to drive here.
Mr Jefferson said his client had not acted like a "hoon".
"If we are sending people to prison due to lack of experience in my respect that is a poor state of affairs to be in."
Justice Mallons reserved her decision.
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