Aiono v Police - [2012] NZHC 1603

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2012-443-020 [2012] NZHC 1603

MORESI AIONO
Appellant

v

NEW ZEALAND POLICE
Respondent

Hearing: 4 July 2012

Appearances: K Pascoe for the appellant
A W M Britton for the respondent

Judgment: 6 July 2012

JUDGMENT OF CLIFFORD J

[1] The appellant, Mr Aiono, pleaded guilty to one charge of injuring with intent to injure under s 189(2) of the Crimes Act 1961. Mr Aiono was sentenced by Judge Ross in the District Court at New Plymouth on 16 May 2012 to 16 months’ imprisonment and to paying emotional harm reparation of $1,000 to his victim. Mr Aiono now appeals that sentence as being manifestly excessive.

Facts

[2] The statement of facts to which Mr Aiono pleaded guilty records that at

11.30pm on Thursday, 2 February 2012 Mr Aiono was in a vehicle on Tavistock

Street, New Plymouth with several associates. He observed an associate (whom I

AIONO v POLICE HC NWP CRI-2012-443-020 [6 July 2012]

understand was not in the vehicle with him) punch the victim, knocking him unconscious. Mr Aiono then got out of the car, approached the victim as he lay unconscious on the ground and stomped on the side of his head. One of Mr Aiono’s associates pulled him away from the victim, but Mr Aiono managed to break away and attempted to, once again, kick his victim in the head. On that occasion, the kick was blocked by one of the victim’s friends. Mr Aiono explained his actions by reference to the effects of alcohol.

[3] As a result of the attack on him, the victim sustained a blackened left eye, bruising to the left side of his head and cheek and a cut and bruised lip. When talking to a restorative justice manager, as Mr Aiono had expressed a wish to attend a restorative justice meeting, Mr Aiono’s victim spoke of lasting injuries for which he required specialist assistance. I acknowledge that it is not possible with any precision to determine the extent to which Mr Aiono’s associate, or Mr Aiono himself, contributed to those injuries. Clearly, however, they both did.

[4] Mr Aiono was remanded in custody as a result of his offending. During that time, Mr Aiono completed two art sketches which were purchased by a local organisation for $150. Mr Aiono wrote to his victim, apologising, and also paid him that $150. His victim was recorded as being grateful for that payment, although he sought a further amount of reparation. He said he would have been happy for a total of about $600.

The Judge’s sentencing decision

[5] When sentencing Mr Aiono, the Judge identified an initial starting point of

18 months’ imprisonment. Then, by reference to Mr Aiono’s substantial list of previous convictions, one of which was for assault, he determined that an uplift of three months was appropriate. His reasoning was that the assault with intent to injure offending represented an escalation of earlier disorderly and anti-social behaviour offending, most of…

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 Aiono v Police

Details

AGLC: Aiono v Police [2012] NZHC 1603
Case: [2012] NZHC 1603
Decision Date: 6 July 2012

CaseChat Overview and Summary

In the case of Aiono v Police, the appellant, Mr Aiono, appealed against the sentence imposed on him by the District Court at New Plymouth for injuring with intent to injure, which was 16 months' imprisonment and an emotional harm reparation of $1,000. Mr Aiono argued that the sentence was manifestly excessive and that the Judge had failed to properly consider his offer of reparation and his ability to pay the reparation ordered. The High Court of New Zealand was required to determine whether the sentence was manifestly excessive, and if the Judge had properly considered the offer of reparation and the appellant's ability to pay the reparation ordered. The Court found that the sentence was not manifestly excessive, but the order for reparation could not stand as the Judge had failed to have regard to the payment of $150 made by Mr Aiono. The Court also found that the Judge may not have had a reasonable measure of confidence that Mr Aiono could pay the reparation ordered, and thus the order for $1,000 emotional harm reparation was quashed. The sentence was otherwise upheld.
[1] R v Harris [2008] NZCA 528; R v Taueki [2005] 3 NZLR 372 (CA).
[2] R v Wonnacott [2009] NZCA 414; R v Story [2012] NZCA 98.
[3] R v Pender & Roberts [2007] NZCA 465 at [15].
[4] R v Wonnacott [2009] NZCA 414.

Orders