Areaiti v Police - [2014] NZHC 2150

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2014-425-30 [2014] NZHC 2150

BETWEEN
TEREMOANA AREAITI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:
4 September 2014

(By way of audio-visual link)

Appearances:

K L McHugh for Appellant
E L Higbee for Respondent

Judgment:

5 September 2014

INTERIM 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 2150 [5 September 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…

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 Areaiti 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 2150
Decision Date: 5 September 2014

CaseChat Overview and Summary

The appellant, Teremoana Areaiti, appealed against his sentence for three charges: male assaults female, and two charges of breaching a protection order. The District Court sentenced Areaiti to 18 months imprisonment for each charge, to be served concurrently. Areaiti argued that the sentence was manifestly excessive, particularly the starting point of 18 months imprisonment, and that there was inadequate recognition of his rehabilitative efforts. Areaiti further submitted that the sentencing judge should have articulated a starting point for each offence and indicated the components of the overall sentence attributable to each charge. It was submitted that the sentence should not exceed 12 to 13 months imprisonment. The appeal was allowed in principle to allow Areaiti to transition immediately from imprisonment to a residential treatment programme for alcohol and drug addiction. The judgment was issued on an interim basis, pending receipt of further information.

The issue on appeal was whether the sentencing judge erred by imposing a manifestly excessive sentence. The sentencing judge considered the appellant's criminal history, which largely comprised violence and dishonesty offences. The judge also noted that a residential treatment programme for alcohol and drug addiction was imperative given the findings of the pre-sentence report. The sentencing judge indicated that she would approach the offending as a whole, taking the first two offences as the lead, with the breach of the protection order arising out of the second incident being a further component to be added to the sentence that would otherwise have been imposed. The sentencing judge took 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 afforded for Areaiti's guilty pleas, resulting in a final sentence of 18 months imprisonment on each charge to be served concurrently. The court considered the appropriate starting point, the failure of previous sentences to arrest the appellant's reoffending, and the need for deterrence and protection in imposing a stern sentence. The court held that while there may be grounds to criticise the way in which the sentencing judge structured the sentence, the ultimate sentence imposed was one that was legitimately available. The court further held that the sentencing judge was unable to take into account the appellant's commitment to undertake residential alcohol and drug treatment at the time of sentencing. The court granted the appeal to allow the appellant to transition immediately from imprisonment to the residential treatment programme.

Orders