Areaiti v Police - [2014] NZHC 2413

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2014-425-30 [2014] NZHC 2413

BETWEEN TEREMOANA AREAITI Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 3 October 2014 (On the papers)

Appearances:

K L McHugh for Appellant
E L Higbee for Respondent

Judgment:

3 October 2014

JUDGMENT OF MANDER J

[1] Teremoana Areaiti and his partner were drinking and socialising in their home when an argument developed between them. Mr Areaiti threw a glass bottle at his partner before grabbing her by the throat and pinning her against a wall. His victim struggled for breath and believed she was going to die. After some minutes she managed to force Mr Areaiti away and left the address.

[2] Two days later, Mr Areaiti and his partner came into contact at his sister’s address. His partner was in the process of leaving the address in her vehicle when the two of them began to argue. Mr Areaiti picked up a bicycle to head height, and threatened his partner who locked herself in the vehicle. He kicked the rear of his partner’s car, struck the side window and yelled that he was going to kill her, her brother and her parents. After the intervention of Mr Areaiti’s sister, the victim was able to reverse out of the driveway but not before Mr Areaiti kicked the front of the
vehicle.

AREAITI v NEW ZEALAND POLICE [2014] NZHC 2413 [3 October 2014]

[3] Mr Areaiti pleaded guilty to a charge of male assaults female and two charges of breaching a protection order. He was sentenced by Judge Bouchier to 18 months imprisonment on each of the charges. It is against those sentences which the appeal lies.

[4] Mr Areaiti submitted that the end sentence was manifestly excessive. In particular, that the overall starting point of 2 years imprisonment was too high and that there was inadequate recognition of his rehabilitative efforts. It was submitted that the Judge erred in not articulating a starting point for each of the offences and indicating the components of the overall sentence attributable to each of the charges that Mr Areaiti had pleaded guilty to. It was submitted that an end sentence of no more than 12 to 13 months imprisonment should have been imposed.

[5] In support of the appeal, leave was sought to adduce further evidence advising of Mr Areaiti’s placement in a residential facility for the purposes of alcohol and drug treatment. This information was received by me without objection from the Crown.

The District Court sentence

[6] Of understandable concern to Judge Bouchier was Mr Areaiti’s criminal history which largely comprised violence and dishonesty offending. The present conviction for male assaults female is the fourth of its kind, and he has numerous previous convictions for contravening protection orders. He has, over the past 15 years, accumulated 48 convictions with 21 sentences of imprisonment. The risk of harm that he presents to others is considered high.

[7] In the pre-sentence report his use of violence and alcohol in relationship…

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.

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Details

Case: [2014] NZHC 2413
Decision Date: 3 October 2014

CaseChat Overview and Summary

The appeal in Areaiti v Police [2014] NZHC 2413 was brought by Teremoana Areaiti, who was sentenced by Judge Bouchier to 18 months imprisonment on each of three charges, to be served concurrently. Areaiti argued that the sentence was manifestly excessive and that there was inadequate recognition of his rehabilitative efforts. He sought leave to adduce further evidence advising of his placement in a residential facility for alcohol and drug treatment, which was granted without objection from the Crown. The appeal was allowed in principle to allow for Areaiti's placement at He Waka Tapu residential treatment programme.

The issue for determination on appeal was whether the sentencing Judge erred by imposing a sentence that was manifestly excessive. The Court noted that Areaiti's criminal history, which largely comprised violence and dishonesty offending, was of understandable concern to the sentencing Judge. The Court noted that Areaiti's use of violence and alcohol in relationship issues was identified as contributing to his offending and that it was recommended that he receive residential treatment for alcohol and drug counselling. Given the findings of the pre-sentence report, the Court noted that such treatment was imperative. The Court also noted that the sentencing Judge had considered the totality of the offending, taken the first two offences as the lead, and imposed a starting point of 18 months imprisonment with an uplift of six months imprisonment to reflect the aggravating feature of the appellant's prior convictions. A 25% discount was also afforded for Areaiti's guilty pleas, resulting in a final sentence of 18 months imprisonment on each charge to be served concurrently.

The Court found that while the starting point of 18 months imprisonment could be considered high, the sentence imposed was within the sentencing Judge's discretion. The Court also noted that the sentence imposed was coupled with proposed release conditions in the hope that this would prevent further offending. The Court concluded that the ultimate sentence imposed was one that was legitimately available, given the totality of the offending and the circumstances of the offender. The Court also found that the sentencing Judge was unable to take into account Areaiti's commitment to undertake residential alcohol and drug treatment at the time of sentencing. The Court granted the appeal in principle to allow for Areaiti's placement at He Waka Tapu residential treatment programme and reduced his sentence to 1 year, 4 months and 26 days to allow his release from prison on the morning of 28 October 2014. The Court also imposed a further special condition that Areaiti attend Nga Kete Matauranga Pounamu Trust in Spey Street, Invercargill, for any follow-up treatment and assistance following his release from He Waka Tapu.

Orders