Apineru v Police

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ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF VICTIM PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-485-55 [2014] NZHC 1969

ALEX APINERU

v

NEW ZEALAND POLICE

Hearing: 19 August 2014

Counsel:

S A Thistoll for Appellant
M J Ferrier for Crown

Judgment:

20 August 2014

JUDGMENT OF WILLIAMS J

[1]      The appellant pleaded guilty to one count of breaching a protection order and one count of common assault.  He was sentenced in the District Court on 11 June

2014 to two years’ imprisonment for breaching the protection order, and six months’

imprisonment to be served concurrently on the common assault charge.

[2]      Mr Apineru now appeals against the sentence for breach of protection order on  the  basis  that  the  learned  Judge  made  material  errors  in  his  sentencing

methodology causing him to impose a sentence that was manifestly excessive.

APINERU v NEW ZEALAND POLICE [2014] NZHC 1969 [20 August 2014]

The facts

[3]      The victim is S.  She is still legally married to the appellant but they have been separated for some time.   She was granted a protection order against him in

2008, but I do not know whether that reflects the date of the separation.

[4]      At  around  midday  on  28  February  2014,  S  was  at  a  relative’s  home socialising with family.   The appellant arrived uninvited.   He abused S verbally, stood over her and told her she needed to leave with him.   S left accordingly. Mr Apineru grabbed her by the arm while they were outside the property bruising it. He then took her to an empty State house nearby.  The facts do not disclose what happened there but the pair then left and spent the night at Mr Apineru’s house.

[5]      A temporary protection order was made against the appellant on 7 May 2008 and the temporary order was made final on 4 August 2008.  Mr Apineru has been found guilty of breaching that order three times prior to the current incident – on

29 June 2008, 8 July 2012, and 6 March 2013.

[6]      It is this extensive and long term history of breaches that undoubtedly caused the learned Judge to adopt a stern approach.

The decision

[7]      The learned District Court Judge adopted a “near maximum” starting point of two and a half years’ imprisonment on the breach of protection order – the offence he considered to be the dominant one.   This was, he said, “to take account of the repeated breaching of protection orders and actual violence” suffered by S.

[8]      He then discounted that 30 month term by 20 per cent – six months – to reflect Mr Apineru’s guilty pleas.   It was open to him to adopt the 25 per cent maximum available as a result of Hessell v R, but the Judge considered that the pleas

were not at the earliest opportunity, there having been negotiation over charges.1

1      Hessell v R [2010] NZSC 135; [2011] 1 NZLR…

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Details
Case
[2014] NZHC 1969
Decision Date

CaseChat Overview and Summary

The case of Apineru v Police involved an appeal against the sentence handed down by the District Court for a breach of a protection order. The appellant, Mr Apineru, was sentenced to two years' imprisonment for breaching a protection order and six months' imprisonment for common assault, to be served concurrently. The appeal was on the basis that the learned Judge made material errors in sentencing methodology causing the sentence to be manifestly excessive. The legal issues for the court were whether the learned District Court Judge erred in adopting a “near maximum” starting point of two and a half years’ imprisonment and whether the 20 per cent discount for a guilty plea was appropriate. The court found that the starting point was not out of range and the 20 per cent discount for a guilty plea was within the permissible range. The appeal was allowed, and the sentence of two years' imprisonment was quashed and replaced with a sentence of 19 months' imprisonment.

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