Ah Hi v The Queen - [2019] NZHC 678

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-044

[2019] NZHC 678

BETWEEN
LAAUOLEOLA PATRICK LAITITI AH HI

Appellant

AND

THE QUEEN

Respondent

Hearing: 1 April 2019

Counsel:

C Ross for Appellant Z Fuhr for Respondent

Judgment:

3 April 2019

JUDGMENT OF BREWER J

This judgment was delivered by me on 3 April 2019 at 3:00 pm

Registrar/Deputy Registrar

Solicitors:
Public Defence Service (Manukau) for Appellant Crown Law (Wellington) for Respondent

AH HI v R [2019] NZHC 678 [3 April 2019]

Introduction

[1] On 30 November 2018, Mr Ah Hi was sentenced by Judge DJ McNaughton to three years’ imprisonment on one representative charge of indecent assault and one charge of doing an indecent act in a public place.1 The maximum penalties are seven years’ imprisonment2 and two years’ imprisonment3 respectively. Mr Ah Hi appeals the sentence as being manifestly excessive.

[2] In order to succeed, Mr Ah Hi must satisfy me there is an error in the sentence such that a different sentence should be imposed.4

Background

[3] The charge of doing an indecent act in a public place arose from an incident which took place on 29 July 2017. The charge of indecent assault arose some five months later on 21 December 2017 while Mr Ah Hi was on bail for the first charge. The facts of each incident are usefully set out in the Crown’s submissions:

Indecent act in a public place

8.On 29 July 2017, the first victim (aged 13) noticed the appellant watching her at the Manurewa indoor netball courts. She walked away to a public area to buy food, feeling uncomfortable about the way the appellant was looking at her. The appellant followed her and intercepted her in a hallway near the toilets. The appellant gestured towards the toilets and said in Samoan “let’s go to the toilets and have sex”. The victim alerted members of the public who intercepted the appellant and called the police. The appellant claimed that he thought the victim was 23 (even though she had been wearing a school uniform at the time).

Indecent assault

9.The second incident occurred in Takanini five months later, while the appellant was on bail for the first charge. On 21 December 2017, the second victim, an 84-year-old woman [Ms D], was returning home from the dairy when she was approached by the appellant. The appellant followed her, initiating a conversation with her. He asked her how she was and if she was going for a walk – the victim replied that she was walking home. When she stopped outside her house and said she was going in, the appellant asked her if it was her house and

1      R v Ah Hi [2018] NZDC 25249.
2      Crimes Act 1961, s 135.
3      Section 125.
4      Criminal Procedure Act 2011,…

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 Ah Hi v The Queen

Details

AGLC: Ah Hi v The Queen [2019] NZHC 678
Case: [2019] NZHC 678
Decision Date: 3 April 2019

CaseChat Overview and Summary

The appeal in Ah Hi v The Queen was heard in the High Court of New Zealand, Auckland Registry, on 1 April 2019. Mr. Ah Hi, the appellant, was sentenced to three years' imprisonment for one count of indecent assault and one count of doing an indecent act in a public place. He appealed the sentence, arguing it was manifestly excessive. The legal issues before the court were whether the sentence imposed by Judge McNaughton contained an error warranting a different sentence, and if the sentence was proportionate to the appellant's culpability.

The court considered the appellant's arguments that the starting point of four years' imprisonment was too high and the sentence should have been around 26.4 months. The court noted the difficulties in finding analogous cases due to the wide range of circumstances in indecent assault cases. The court compared the case with Khangura v Police, Milne v Police, and others, but found that none provided substantive guidance on the specific combination of characteristics in this case. The court determined that the appellant's culpability was high due to the premeditation, extent of sexual conduct and violence, home invasion, and the harm done to the victim. While the starting point was stern, the court found it justified and within the appropriate range.

The court also considered the discounts applied to the sentence for the appellant's pleas of guilty and participation in literacy and Pacifica Identity programs. The court found that the discount for the pleas of guilty was more generous than warranted, and the discount for the programs was difficult to justify given the appellant's lack of remorse and high risk of reoffending. However, the court concluded that the sentence in its totality was a proportionate response to the appellant's offending and did not find the sentence to be manifestly excessive.

The appeal was dismissed, and the sentence of three years' imprisonment was upheld.

Orders