Awarau v Police - [2017] NZHC 1603

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2017-404-182 [2017] NZHC 1603

BETWEEN
TIKIAHI AWARAU

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 11 July 2017

Counsel:

N Silich for Appellant
D M A Wiseman for Respondent

Judgment:

12 July 2017

JUDGMENT OF HEATH J

This judgment was delivered by me on 12 July 2017 at 11.00am pursuant to
Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, Auckland
Counsel:
N Silich, Waitakere

AWARAU v NEW ZEALAND POLICE [2017] NZHC 1603 [12 July 2017]

The appeal

[1] Following a sentence indication given on 7 March 2017,1 Mr Tikiahi Awarau pleaded guilty to one charge of cultivating the Class C controlled drug cannabis. On
29 May 2017, he was sentenced in the District Court at Waitakere,2 to a term of

imprisonment of nine months.

[2] Mr Awarau appeals against that sentence on the grounds that the sentencing Judge erred in imposing a period of imprisonment, as opposed to one of home detention.

[3] An appeal to this Court against a sentence imposed by the District Court is governed by s 250 of the Criminal Procedure Act 2011. It provides:

250 First appeal court to determine appeal

(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.

(2) The first appeal court must allow the appeal if satisfied that—

(a) for any reason, there is an error in the sentence imposed on conviction; and

(b) a different sentence should be imposed.

(3) The first appeal court must dismiss the appeal in any other case.

The facts

[4] Mr Awarau resided at [address redacted]. On 27 November 2016, he was at home. Police officers called at about 2.30pm that day on an unrelated matter. When they entered the house they discovered an elaborate cannabis growing operation. Two bedrooms had been adapted for the purpose of cultivating cannabis; each had windows fully blocked, with ventilation and lighting systems to facilitate their use.

[5] Some 24 mature cannabis plants were found growing under lights in one of the bedrooms. In the other there were six medium sized plants. A third area had

1 New Zealand Police v Awarau DC Waitakere CRI-2016-090-6578.
2 New Zealand Police v Awarau [2017] NZDC 11368.

been established in a shed adjacent to a carport. 31 cannabis seedlings were found in the shed, also growing under lights.

[6] On being questioned, Mr Awarau accepted responsibility for growing the cannabis, but said it was for personal use.

The sentencing indication

[7] Judge Jelas gave a sentencing indication on 7 March 2017. She indicated, on the basis of those facts, that she would adopt a starting point of 14 months imprisonment. The Judge considered no uplift would be made for any personal aggravating factors. However, if a guilty plea were entered a sentence of 11 months imprisonment was likely to be imposed. Judge Jelas added:

[6] That would then make it possible for me to consider an electronically-monitored sentence,…

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 Awarau v Police

Details

AGLC: Awarau v Police [2017] NZHC 1603
Case: [2017] NZHC 1603
Decision Date: 12 July 2017

CaseChat Overview and Summary

Tikiahi Awarau appeals against a sentence of imprisonment imposed for cultivating cannabis, contending that the sentencing Judge erred in imposing a period of imprisonment as opposed to one of home detention. Awarau had a history of criminal offending, including violence and drug-related charges. At the time of the cannabis cultivation, he was on intensive supervision for an earlier violence offence. The District Court Judge was concerned that Awarau had minimised the seriousness of his offending, and that he had a history of failing to complete rehabilitative programmes. The Judge imposed a sentence of imprisonment, but reduced the indicated sentence from one of 11 months’ imprisonment to one of nine months’ imprisonment. Awarau contends that the sentencing Judge gave excessive weight to assertions of non-compliance with previous sentencing orders. He submitted that a period of home detention should be substituted for the term of imprisonment imposed by the Judge. The Court accepted that the information about completion of certain programmes could be taken into account. The appeal was allowed, and a period of eight months’ home detention was imposed, together with special conditions.

Orders