Apiata v Police - [2024] NZHC 3332

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2024-443-41

[2024] NZHC 3332

BETWEEN
JASON PAUL APIATA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 7 November 2024

Appearances:

J C Hannam for Appellant

R L Hicklin and P Lange for Respondent

Judgment:

11 November 2024

JUDGMENT OF McQUEEN J

[1] On 9 September 2024, the appellant, Mr Apiata was sentenced to 18 months’ imprisonment in the Hawera District Court.¹ That sentence related to five charges:

(a)using a document (two counts);²

(b)theft;³

(c)escapes custody;⁴ and

(d)assaults a police officer.⁵

¹      Police v Apiata [2024] NZDC 21774.
²      Crimes Act 1961, s 228(1)(b): maximum penalty seven years’ imprisonment.
³      Crimes Act 1961, ss 219 and 223(d): maximum penalty three months’ imprisonment.
⁴      Crimes Act 1961, s 120: maximum penalty five years’ imprisonment.
⁵      Crimes Act 1961, s 192(2): maximum penalty seven years’ imprisonment.

APIATA v NEW ZEALAND POLICE [2024] NZHC 3332 [11 November 2024]

[2] Mr Apiata appeals against the sentence on the basis it was manifestly excessive. Mr Apiata says that a further discount should have been allowed for personal mitigating factors, namely remorse and drug addiction.

[3] The Police oppose the appeal, submitting that there is no tangible evidence of genuine remorse and therefore no credit was available for this factor, and that any credit available for Mr Apiata’s background including drug addiction was adequately reflected in the limited uplift given by the sentencing Judge for Mr Apiata’s previous offending.

The judgment under appeal

[4] The Judge first described the offending. The Judge explained the dishonesty offending as the use of a debit card to purchase tobacco and then top up a mobile phone. The Judge described Mr Apiata as calculating in the use of the card, given that each time he used it, the amount that was available was reduced. The theft charge relates to taking fuel from a fuel tank in a boat at the victim’s address.

[5] The assault on police and escaping police custody charges arose on 29 May 2024. Mr Apiata was driving a vehicle but had run out of petrol and was in the car on the side of the road. Police recognised him and worked out that there was a warrant for Mr Apiata’s arrest. Police told Mr Apiata he was under arrest but he ran. Mr Apiata was pursued by police and at one point he turned around and ran directly at the constable who was pursuing him. Mr Apiata struck the constable in the face with his fist and the constable fell to the ground. Mr Apiata carried on running to avoid arrest by crossing the medium barrier into the oncoming lane of traffic. Mr Apiata was later arrested.

[6] The Judge noted that Mr Apiata has well over 100 previous convictions spanning from 1998 through to 2023. Those convictions include 23 for dishonesty and 44 for non-compliance. The Judge recorded the concern expressed by Corrections that…

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 Apiata v Police

Details

AGLC: Apiata v Police [2024] NZHC 3332
Case: [2024] NZHC 3332
Decision Date: 11 November 2024

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Apiata v Police involves an appeal by Jason Paul Apiata against his sentence, which was imposed by the Hawera District Court. Apiata was sentenced to 18 months' imprisonment for various offences, including using a document, theft, escaping custody, and assaulting a police officer. He argues that the sentence is manifestly excessive and that additional credit should have been given for his remorse and drug addiction.

The legal issues before the court were whether the sentence imposed by the sentencing Judge was manifestly excessive and whether the Judge appropriately considered mitigating factors such as remorse and addiction. The court considered the nature and seriousness of the offences, the appellant's extensive criminal history, and the mitigating factors presented by the defence. The court held that the sentence was not manifestly excessive and that the sentencing Judge had appropriately considered the mitigating factors, albeit in an unorthodox manner. The court found that while the Judge did not explicitly address remorse and addiction, the overall sentence, including the uplift for previous offending, demonstrated consideration of these factors. Consequently, the appeal was dismissed.

The final orders of the court were that the appeal against the sentence is dismissed, and the original sentence of 18 months' imprisonment remains in place.

Orders