Apiata v Police - [2021] NZHC 3224

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2021-463-000125

[2021] NZHC 3224

BETWEEN
KIRIKAA LEEAM POU APIATA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 26 November 2021

Appearances:

M R Douglas (on behalf of W T Nabney) for Appellant B Smith for Respondent

Judgment:

29 November 2021

JUDGMENT OF LANG J

[on appeal against sentence]

This judgment was delivered by me on 29 November 2021 at 3 pm.

Registrar/Deputy Registrar Date……………

Solicitors:
Crown Solicitor, Rotorua

APIATA v NEW ZEALAND POLICE [2021] NZHC 3224 [29 November 2021]

[1] Mr Apiata pleaded guilty to charges of being in unlawful possession of a firearm and ammunition as well as assault with intent to injure and behaving in a disorderly manner that was likely to cause violence against persons to continue.

[2] On 30 September 2021 Judge T R Ingram sentenced Mr Apiata to two years six months imprisonment.1 Mr Apiata appeals against sentence on the basis that errors in the Judge’s approach to sentencing resulted in an end sentence that was manifestly excessive. He also challenges the sentence on the basis of disparity. He says the sentence he received is unjustifiably greater than the sentence imposed on one of his co-offenders.

The charges

[3] The first set of charges related to an incident that occurred on 23 March 2021. On that date Mr Apiata was travelling in a motor vehicle with two patched members of the Mongrel Mob. Mr Apiata is also a patched member of the Mongrel Mob. They pulled up at a set of traffic lights and began making abusive gestures towards a person who was travelling in another vehicle with a female associate.

[4] Approximately 15 minutes later Mr Apiata and his associates saw the same person and his partner on the street. They stopped their vehicle and confronted the male about his association with the rival Black power gang because he was wearing a blue T-shirt. The male denied having any association with the Black power gang. The group then chased the victim into commercial premises, where they were told by staff on numerous occasions to leave. They then engaged in a concerted attack on the victim. He was punched to the ground and Mr Apiata kicked him at least twice in the head. His co-offender, a Mr Diesel Withers, also punched the victim, stomped on his back on two occasions and kicked him in the torso.

[5] Later the same day the police subsequently executed a search warrant at a property occupied by Mr Apiata’s co-offenders. There they discovered a .22 calibre rifle and 27 rounds of the same calibre ammunition. Mr Apiata claimed responsibility

1 New Zealand Police v Apiata [2021] NZDC 19509.

for both the firearm and the ammunition. He does not hold a firearms licence entitling him to be in possession of the firearm.

The sentence

[6] The Judge adopted a starting point of 18 months imprisonment on the charge of assault with intent to…

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 [2021] NZHC 3224
Case: [2021] NZHC 3224
Decision Date: 29 November 2021

CaseChat Overview and Summary

The Court heard an appeal against sentence brought by Kirikaa Leeam Pou Apiata, who had pleaded guilty to charges of being in unlawful possession of a firearm and ammunition, assault with intent to injure, and behaving in a disorderly manner that was likely to cause violence against persons to continue. Judge T R Ingram had sentenced Mr Apiata to two years six months imprisonment. Mr Apiata appeals on the basis that the Judge’s approach to sentencing resulted in a sentence that was manifestly excessive and that the sentence was unjustifiably greater than the sentence imposed on one of his co-offenders. The Court considered whether the starting points selected by the Judge were justified, and whether the Judge failed to consider the issue of totality when imposing cumulative sentences. The Court found that the starting point selected for the charge of assault with intent to injure was justified. The Court found that the starting point for the charge relating to the unlawful possession of a firearm and ammunition was probably at the upper end of the available range, but not outside it. The Court found that the disparity between the sentence imposed on Mr Apiata and the sentence imposed on one of his co-offenders was gross and unjustified, and so the Court reduced the starting point on the charge of assault with intent to injure to one of 12 months imprisonment. The Court found that the effective end sentence of two years two months imprisonment was not out of all proportion to the overall gravity of Mr Apiata’s offending, and so there was no adjustment for totality. The appeal is allowed in relation to the charge of assault with intent to injure, and Mr Apiata is sentenced to eight months imprisonment on that charge.

The final orders of the Court are as follows: (1) The appeal is allowed in relation to the charge of assault with intent to injure. (2) Mr Apiata is sentenced to eight months imprisonment on the charge of assault with intent to injure. (3) That sentence is to be served concurrently with the sentence imposed on the charge of disorderly conduct but cumulatively on the concurrent sentences of 18 months imprisonment imposed on the charges relating to the unlawful possession of firearms and ammunition.

Orders