Apineru v Police - [2014] NZHC 1969

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…

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.

Keep reading for free

Create a free CaseChat account to read Apineru v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] NZHC 1969
Decision Date: 20 August 2014

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.

Orders