Aberahama v Police - [2017] NZHC 1179

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2017-409-39 [2017] NZHC 1179

METUA ABERAHAMA

v

NEW ZEALAND POLICE

Hearing:
25 May 2017

Teleconference on 31 May 2017

Appearances:

T R Nicholls for Appellant
E J Henderson and B Hawes for Respondent

Judgment:

31 May 2017

JUDGMENT OF NICHOLAS DAVIDSON J

Introduction

[1] The appellant, Mr Aberahama, was sentenced to 19 months imprisonment on eleven charges.1 In summary the sentence comprised:

(a) eight months imprisonment for eight charges of theft (under $500);2

(b) two months imprisonment cumulative for one charge of intimidation;3

(c) two months concurrent for one charge of speaking threateningly;4 and

1      Police v Aberahama [2017] NZDC 5269.
2      Crimes Act 1961, s 219, maximum penalty three months imprisonment.
3      Summary Offences Act 1981, s 21(1)(d), maximum penalty three months imprisonment.
4      Summary Offences Act 1981, s 21(1)(a), maximum penalty three months imprisonment.

ABERAHAMA v NZ POLICE [2017] NZHC 1179 [31 May 2017]

(d)nine months cumulative on one charge of contravening a protection order.5

[2] He was also disqualified from driving for four months. He appeals the sentence on the ground that it is manifestly excessive.

Offending

[3] The eight theft charges spanned three months when the appellant filled his vehicle with petrol and drove off without paying.

[4] The intimidation and threat charges arise from text messages sent to a former partner with whom, as counsel advised, there is still some relationship. The first set, in respect of which the intimidation charge was brought, involved the appellant telling the victim that he was watching her from outside her home address. In one message he said “please say yes or I’ll bring the whole house down”.

[5] The second set of messages was sent the following day, and gave rise to the charge of speaking threateningly. The texts included: “Don’t worry, I’m going to do my best to fuck you right over. Watch yourself”, and “I loved you and you treat me like this I don’t think so what goes around comes back to get you.”

[6] The breach of protection order charge arose after the appellant had appeared in Court in relation to the above offending and was on bail. He went to his former partner’s house while she was home and kicked the door. The partner did not open the door and the appellant left. In her Victim Impact Statement the partner told the Court she was fearful for her safety and the safety of her extended family because of the appellant’s actions and threats. She was afraid of going outside the house on the
night of breach because the appellant might be there hiding in wait for her.

5 Domestic Violence Act 1995 s 49, maximum penalty three years imprisonment.

District Court sentence

[7] His Honour Judge Saunders referred to the persistent dishonesty offending. Although similar in kind, the offences occurred on separate dates which meant that cumulative sentences of one month for each was appropriate. This is not challenged on appeal.

[8] The charges…

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.

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Details

Case: [2017] NZHC 1179
Decision Date: 31 May 2017

CaseChat Overview and Summary

The appellant, Mr. Aberahama, was sentenced to 19 months imprisonment on eleven charges, including theft, intimidation, and contravening a protection order. He appeals the sentence on the ground that it is manifestly excessive. The appeal was heard in the High Court of New Zealand, Christchurch Registry.

The legal issues in this appeal were whether the starting point adopted by the District Court Judge in relation to the breach of protection order was manifestly excessive and whether a guilty plea discount should have been applied to the ten months imprisonment imposed for the thefts, and threats and intimidation charges. The Court had to determine whether the sentence imposed by the Judge was manifestly excessive and outside the range available.

The Court held that a starting point of nine months to reflect the gravity of the offending was open to the sentencing Judge. The offending in this case was similar to that in Hunia v Police, and a sentence of 12 months imprisonment before discount for the plea of guilty was well within range. The Court also held that the appellant was entitled to a 25 per cent discount to recognise his guilty pleas in relation to the ten months imprisonment imposed for the thefts, and threats and intimidation charges.

The appeal was dismissed insofar as it challenged the starting point adopted by the District Court Judge in relation to the breach of protection order. However, the appeal was allowed to reflect a guilty plea discount in relation to charges for which in total he was sentenced to 10 months imprisonment. The total sentence of 19 months imprisonment was replaced by one of 16 months two weeks.

This case highlights the importance of considering the gravity of the offending and relevant case law when imposing a sentence. The Court also emphasised the need to consider the effectiveness or lack of such given repeat offending. The Court found that the sentence imposed by the Judge was not manifestly excessive and was within the range available. However, the Court did find that a guilty plea discount should have been applied to the ten months imprisonment imposed for the thefts, and threats and intimidation charges.

Orders