Anae v Police - [2016] NZHC 1476

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000123 [2016] NZHC 1476

BETWEEN
SEKOA ANAE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 20 June 2016

Appearances:

M J Kidd for Appellant
T Bellingham for Respondent

Judgment:

1 July 2016

JUDGMENT OF GILBERT J

This judgment is delivered by me on 1 July 2016 at 10 am pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Solicitors:
Kidd Legal, Auckland
Merediths, Auckland

ANAE v NEW ZEALAND POLICE [2016] NZHC 1476 [1 July 2016]

Introduction

[1] Mr Anae pleaded guilty to assault with a weapon, threatening to kill and possession of methamphetamine. On 16 March 2016, Mr Anae was sentenced by Judge Fraser in the Auckland District Court to a term of 22 months’ imprisonment.1

[2] Mr Anae has been granted leave to appeal out of time on the basis that the Judge should have made an order under s 80I of the Sentencing Act 2002 granting Mr Anae leave to apply for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if a suitable residence became
available.2

Facts

[3] At about 7.00 pm on 21 April 2015, Mr Anae went to the victim’s address to collect $30 that he claimed was owed by another resident at the address. Mr Anae was in a highly agitated state and was shouting and acting aggressively. When the victim asked Mr Anae to calm down, Mr Anae replied “you pull a knife on me I’ll kill you”. Mr Anae went back to his home but returned approximately five minutes later wearing gloves and holding a 30 centimetre long-handled butcher’s boning knife. He confronted the victim in the kitchen and held the knife to the victim’s throat and torso for approximately five minutes while shouting threats and abuse. He repeatedly stated that he would cut and kill the victim. The victim managed to escape and call the police. The victim was shaken but uninjured.

[4] When the police arrived, they located a clear plastic zip lock bag containing

approximately .1 grams of methamphetamine in Mr Anae’s possession.

Prior convictions

[5] Mr Anae, who is now aged 45, has previous convictions for violent offending: indecent assault of a female in 2011; indecent assault of a female in 2003;
breaking and entering and using a weapon in 2003; assault with intent to commit

1 New Zealand Police v Anae [2016] NZDC 4499.
2 Minute of Woolford J dated 13 May 2016.

sexual violation in 2003; and assaulting police (x 2) in 1991. Mr Anae was also imprisoned in Australia. He lived there from the early 1990s until about 2004. However, the Court has not been given details of this offending.

Sentence indication

[6] On 11 November 2015, Judge Fraser gave a sentencing indication in the

Auckland District Court. The police submitted that a starting point of around

32 months should be adopted for the assault with a weapon and threatening to kill charges with a modest uplift…

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 Anae v Police

Details

AGLC: Anae v Police [2016] NZHC 1476
Case: [2016] NZHC 1476
Decision Date: 1 July 2016

CaseChat Overview and Summary

Mr Anae appealed against his sentence, arguing that the Judge should have made an order under s 80I of the Sentencing Act 2002, granting him leave to apply for cancellation of the sentence of imprisonment and substitution of a sentence of home detention if a suitable residence became available. The appeal was allowed and leave was granted to Mr Anae to apply for home detention. The court held that the Judge had been bound by his earlier sentence indication and should have granted leave under s 80I. The appeal was allowed and leave was granted to Mr Anae to apply for home detention. The court held that the Judge had been bound by his earlier sentence indication and should have granted leave under s 80I. The court held that the Judge was wrong in principle to take into account the new charges that had been laid against Mr Anae in determining the appropriate sentence on the existing charges. The fact that these new charges had been laid provided no justification for departing from the sentence indication. Mr Anae is entitled to the presumption of innocence and the existence of these charges should not have been taken into account by the Judge in departing from his sentence indication and rejecting home detention as the appropriate outcome.

Orders