Jieling Xiao is two months into a 17-month prison sentence and her appeal was heard by Justice Mallon this morning.
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 5, north of Napier, in February, which killed Tauranga man Rhys Middleton.
Middleton was travelling with five companions, including his father and brother, returning 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 in 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 100kmh zones or on single-lane rural roads.
Jefferson said Judge Bridget Mackintosh, who sentenced Xiao, should have taken into account his client's immigration status. The tourist was due to return to China last month.
He said a sentence of home detention clearly met the need for denunciation and held people to account.
A sentence 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 licensed driver; she complied with the licensing programme in this country," Jefferson said.
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 crash to gain more driving experience.
Despite admitting her inexperience she 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 the drive to the beach demonstrated to Xiao 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."
Jefferson said his client had fulfilled every requirement to drive in New Zealand and disagreed that it was "simply an accident waiting to happen".
Justice Mallon said other motorists had noticed Xiao's speed fluctuating but she had not been speeding and that worked in her favour.
She said changes in speed were normal on windy roads.
But Walker said Xiao drove completely off the left side of the road before veering back into her lane and striking Middleton.
"What was involved here was grossly incompetent driving," Walker said.
He said a judge should not take into account the immigration status of a defendant during sentencing.
Justice Mallon 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 they were entitled to drive here.
Jefferson said his client had not acted like a "hoon".
"If we are sending people to prison due to lack of experience, that is a poor state of affairs to be in."
Justice Mallon reserved her decision.
