Aurupa v Police - [2012] NZHC 2750

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-000307 [2012] NZHC 2750

BETWEEN MIDDLEMORE AURUPA Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 9 October 2012

Appearances: H Kim for Appellant
H W Y Yiu for Respondent

Judgment: 19 October 2012

JUDGMENT OF DUFFY J [re Appeal Against Sentence]

This judgment was delivered by Justice Duffy on
19 October 2012 at 12.30 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:
Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland 1140
Copy to:
H N Kim, PO Box 97247, Manukau

AURUPA V NEW ZEALAND POLICE HC AK CRI-2011-404-000307 [19 October 2012]

[1] Middlemore Aurupa was charged with receiving a stolen computer valued at

$2,000, which he then sold to the owner of a second-hand dealership for $300. The charge carries a maximum penalty of seven years’ imprisonment.

[2] In the District Court, Judge Gibson sentenced Mr Aurupa to 16 months’ imprisonment, with leave to substitute the sentence with eight months’ home detention. Mr Aurupa appeals against this sentence on the basis that it is manifestly excessive and that the refusal to adjourn the sentencing was unjust in the circumstances.

District Court sentencing

[3] Judge Gibson considered that given Mr Aurupa’s previous history and the seriousness of the charge, the only options available were imprisonment or home detention. The Judge adopted a starting point of 15 months’ imprisonment, which was uplifted by five months for his previous relevant convictions. A discount of 20 per cent was then applied. Though Mr Aurupa had pleaded guilty at the earliest opportunity, the Judge did not grant the full discount of 25 per cent (recognised in
Hessell v R1) because the Judge did not believe that Mr Aurupa was genuinely

remorseful. This led to an end sentence of 16 months’ imprisonment.

[4] The Judge was prepared to impose eight months’ home detention, but a report on Mr Aurupa’s suitability to serve this sentence was not available as he had not consented to electronic monitoring. Accordingly, a sentence of 16 months’ imprisonment was imposed, with leave to substitute the sentence with eight months’ home detention.

Submissions of the appellant
[5] Counsel points to the following mitigating features of the offending: (a) The stolen item was recovered without any loss to the owner.

1 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

(b) The item, though high in value, was a single item.

(c) Mr Aurupa was to be sentenced for only one offence. (d) Mr Aurupa pleaded guilty on his first appearance.
(e) The second-hand dealer suffered a relatively minor loss of $300, which Mr Aurupa has offered to repay.

(f) The contributing factors identified in the pre-sentence report were

“lack of problem solving” and Mr Aurupa’s financial issues.

[6] It was submitted that the sentence is manifestly excessive in comparison to the following cases:

(a) Edmonds v R:2 Ms Edmonds was charged with receiving stolen property and conspiracy to receive stolen property, arising…

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 Aurupa v Police

Details

AGLC: Aurupa v Police [2012] NZHC 2750
Case: [2012] NZHC 2750
Decision Date: 19 October 2012

CaseChat Overview and Summary

Middlemore Aurupa appealed against his 16-month imprisonment sentence for receiving a stolen computer, arguing that it was manifestly excessive and that the refusal to adjourn the sentencing was unjust. The District Court had imposed the sentence, with leave to substitute it with eight months' home detention, after considering Aurupa's previous history and the seriousness of the charge. Aurupa's counsel argued that the sentence was manifestly excessive in comparison to other cases with similar charges, and that insufficient weight was given to his remorse and offer to pay reparation. The respondent submitted that the sentence was not manifestly excessive by comparison to Vansilfhout v Police. The court considered that the starting point was too high and that insufficient regard was given to the discounting factors. The end sentence that the court reached was less than half the end sentence reached by the District Court, showing that the sentence imposed was manifestly excessive. The appeal was allowed, the sentence imposed in the District Court was quashed, and is replaced with a sentence of six months' imprisonment. An application to replace this sentence with a sentence of home detention will be heard on 25 October 2012.

Orders