Aerenga v Police - [2012] NZHC 1375

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-144 [2012] NZHC 1375

ALLAN AERENGA
Appellant

v

NEW ZEALAND POLICE
Respondent

Hearing: 18 June 2012

Counsel: A Ives for the Appellant
J Wall for the Respondent

Judgment: 18 June 2012

(ORAL) JUDGMENT OF WOODHOUSE J

Counsel/Solicitors:
Ms A Ives, Barrister, Auckland
Mr J Wall, Meredith Connell, Office of the Crown Solicitor, Auckland

AERENGA V POLICE HC AK CRI-2012-404-144 [18 June 2012]

[1] The appellant has appealed against an end sentence of 20 months imprisonment for a total of 10 offences. One of these was committed in July 2010. The remainder occurred between February and November 2011.

[2] It will assist to set out the particulars of the offences together with the sentence imposed for each offence. All of the sentences imposed were concurrent.

Date Offence and particulars Sentence: imprisonment unless noted otherwise (maximum sentence)

14.07.10Theft: Approaches Armani watch display at DFS Galleria store, steals four watches (combined value at $3,278), places watches in jacket and runs out of store.

24.03.11 Assault: Arrives at address where ex-partner is located. Becomes threatening after ex- partner refuses entry. Rips door off hinges
to gain entry to house. Victim contacts police on mobile phone. Appellant then tackles victim on driveway and begins to drag her back to house. Victim receives scrape mark on right arm.

24.03.11 Intentional damage: Arrives at home of ex- partner carrying a brick in a pillowcase. Swings pillowcase at kitchen window. Flees address after victim contacts police.

01.05.11 Obtains by deception: Enters Strandbags (Queen Street store) with two handbags. Requests refund for those bags from staff member. Informs staff member that he has been sent from Newmarket store. Unknown female associate of appellant calls Queen Street store professing to be a staff member of Newmarket store and fraudulently corroborates appellant’s story. Queen Street staff member “refunds” appellant the sum of
$573. Newmarket store contacted after appellant leaves; advice that there were no problems with computer system and no knowledge of claim.

20 months; release conditions

(7 years)

1 month
(6 months)

1 month
(3 months)

3 months
(1 year)

Date Offence and particulars Sentence: imprisonment unless noted otherwise (maximum sentence)

28.05.11 Theft: Enters city apartment while open home in progress, steals laptop from bedroom (value of $1,070), and flees.

10.07.11 Unlicensed driver failing to comply with prohibition.

20 months; release conditions

(7 years)

Convicted and discharged

09.08.11 Breach of bail – no details on file. 1 month

(1 year)

12.08.11 Theft: Steals two women’s wallets from Gucci store on Queen Street (combined value of $1,130)

06.09.11 Theft: Appellant enters house and steals clothes (value of $200) from laundry area

1 year 8 months; release conditions

(7 years)

1 month

(3 months)

01.11.11 Breach of bail – no details on file. 1 month

(1 year)

[3] The appellant has a reasonably substantial number of previous convictions. These were summarised in the pre-sentence report as follows:

Mr Aerenga first appeared in the District Court in 1993 and he has appeared with some…

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.

Continue reading Aerenga v Police

Details

AGLC: Aerenga v Police [2012] NZHC 1375
Case: [2012] NZHC 1375
Decision Date: 18 June 2012

CaseChat Overview and Summary

Allan Aerenga appealed against an end sentence of 20 months imprisonment for 10 offences committed between July 2010 and November 2011. The offences included theft, assault, intentional damage, obtaining by deception, and breaches of bail. The District Court Judge imposed concurrent sentences, starting with an 18-month sentence for the theft of watches, uplifted by six months for other offences, and reduced by 15% for guilty pleas, resulting in a total sentence of 20 months imprisonment. The appellant's counsel argued that the starting point was excessive, the uplift for other offences was too high, the appellant's efforts to reform and his health were not considered, and the credit for guilty pleas was insufficient.

The High Court considered the appellant's arguments and found that the starting point of 18 months for the theft of watches was within range, and an effective uplift of six months for other offences was also within range. The Court noted that the Judge had referred to some mitigating factors earlier in the sentencing process, but it was not clear if they were taken into account when assessing the sentence. The Court held that the credit of 15% for guilty pleas was a matter of discretion for the sentencing Judge and was not so clearly wrong as to warrant interference on appeal. The Court concluded that the end sentence of 20 months imprisonment was not manifestly excessive, and the appeal was dismissed.

The Court did not make any orders for costs.

Orders