Awatere v Police - [2015] NZHC 1374

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2015-485-19 [2015] NZHC 1374

BETWEEN
WIPEI AWATERE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 16 June 2015

Counsel:

P R Strachan for Appellant
S W P Woods for Respondent

Judgment:

17 June 2015

JUDGMENT OF BROWN J

[1] The appellant, Mr Awatere, pleaded guilty on 19 February 2015 to a series of charges in respect of offences that occurred between November 2014 and January
2015. On 13 March 2015 he was sentenced by Judge A I M Tompkins in the District Court at Lower Hutt to a cumulative term of two years and six months’ imprisonment.1

[2] The appellant had previously pleaded guilty to a March 2014 burglary and was sentenced in August 2014 to 10 months’ home detention. He appeared in the District Court on 13 March 2015 following a Crown application to substitute for that sentence one of imprisonment. Judge Tompkins granted the application and it was in
that context that the appellant was sentenced on the remaining charges.

1 Police v Awatere [2015] NZDC 4236.

AWATERE v NZ POLICE [2015] NZHC 1374 [17 June 2015]

was sentenced:

Date

Offence

Section

Maximum penalty

Sentence imposed

22 March 2014

Burglary

Crimes Act

1961, s 231

Ten years’

imprisonment

Six months’ imprisonment (substituted sentence from

10 months’ home detention)

9-10 November

2014

Breach of

home detention conditions

Sentencing Act

2002, s 80S

One year imprisonment; fine not exceeding

$2,000

Three months’ imprisonment (cumulative)

19 November 2014

Breach of

home detention conditions

Sentencing Act

2002, s 80S

One year imprisonment; fine not exceeding

$2,000

Three months’ imprisonment (cumulative)

19 November 2014

Reckless operation of motor vehicle

Land Transport

Act 1998, s 35(1)(a)

Three months’ imprisonment; fine not exceeding

$4,500

Three months’ imprisonment (cumulative); one year disqualification

19 November 2014

Failure to stop on blue and red flashing police signal (third or subsequent)

Land Transport

Act 1998,

ss 52(1)(c) and

52(4)

Three months’ imprisonment; fine not exceeding

$10,000

One year disqualification (cumulative on

19 November disqualification)

19 November 2014

Driving while forbidden

Land Transport

Act 1998, ss
113(2)(e) and

52(1)(c)

Fine not exceeding

$10,000;

disqualification

Convicted and discharged

9 December 2014

Escape from custody

Crimes Act

1961, s

120(1)(c)

Five years’

imprisonment

Six months’ imprisonment (cumulative)

19 December 2014

Escape from custody

Crimes Act

1961, s

120(1)(c)

Five years’

imprisonment

Six months’ imprisonment (cumulative)

4 January 2015
Reckless operation of motor vehicle

Land Transport

Act 1998, s

35(1)(a)

Three months’ imprisonment; fine not exceeding

$4,500

Three months’ imprisonment (cumulative); one year disqualification (concurrent on

19 November

2014 disqualification

for reckless driving)

4 January 2015

Failure to stop on blue and red flashing police signal (third or subsequent)

Land Transport

Act 1998, ss

52(1)(c) and

52(4)

Three months’ imprisonment; fine not exceeding

$10,000

One year disqualification (concurrent on

19 November disqualification

for failing to stop)

4 January 2015

Driving while forbidden

Land Transport

Act 1998, ss

113(2)(e) and

52(1)(c)

Fine not exceeding

$10,000;

disqualification

Convicted and discharged

Total
Two years, six months’ imprisonment;…

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: [2015] NZHC 1374
Decision Date: 17 June 2015

CaseChat Overview and Summary

The appeal in Awatere v Police involves the appellant, Mr Awatere, challenging the sentence imposed on him by the District Court at Lower Hutt. Mr Awatere was sentenced to two years and six months’ imprisonment for various offences, including burglary, breaches of home detention conditions, escapes from custody, and driving offences. The appellant argued that the sentence was manifestly excessive on several grounds: the Judge incorrectly used cumulative sentences, failed to take into account his guilty pleas, and did not sufficiently consider his personal circumstances.

The legal issues before the Court were whether the Judge erred in his employment of cumulative sentences, whether he failed to adjust the sentence for totality, whether he ignored the appellant’s guilty pleas, and whether he neglected to consider the appellant’s personal circumstances. The Court had to determine whether the sentence was within the range available to the Judge and if a different sentence should be imposed.

The Court found that while cumulative sentences were generally appropriate given the nature of the offences, the sentence for the 19 November breach of home detention conditions should have been concurrent rather than cumulative. The Court also determined that the appellant’s guilty pleas were considered by the Judge, and that the Judge was entitled to conclude that the appellant’s personal circumstances did not warrant a lesser sentence given the seriousness and repetitive nature of the offending. As a result, the appeal was allowed to the extent that the sentence was reduced to two years and three months’ imprisonment.

The final orders of the Court were that the total sentence imposed is imprisonment of two years and three months.

Orders