Cave v Police - [2023] NZHC 361

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-404

[2023] NZHC 361

BETWEEN
RAWIRI CAVE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 13 February 2023

Counsel:

E Butler and S Poulton for Appellant O Southern for Respondent

(Via VMR)

Judgment:

2 March 2023

JUDGMENT OF HINTON J

This judgment was delivered by me on 2 March 2023 at 4.00 pm.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors: Kayes Fletcher Walker, Manukau

CAVE v NEW ZEALAND POLICE [2023] NZHC 361 [2 March 2023]

[1] Mr Cave appeals against a sentence of home detention given by Judge Clark in the District Court on 20 October 2022. The charges were:

(a)Assault on a person in a family relationship (x2);1

(b)Assault with a weapon;2 and

(c)Threatening behaviour.3

Summary of offending

November 2021 offending

[2] The victim and the appellant, who were in a relationship, were together at an address on 16 November 2021. The victim was 20 weeks’ pregnant.

[3] At around 11:30 am, the victim went outside the address and began cleaning up the garden. The appellant followed her outside and started calling her a “slut” over something that happened the night before.

[4] The appellant then punched the victim five times in the face, causing her to fall over and become dizzy. The victim tried to get up by pulling herself up on the step railing, at which point the appellant hit her hands twice with a spade.

January 2022 offending

[5] The appellant appeared in the Manukau District Court on 16 November 2021. He was granted bail simpliciter, with a standard 7 pm to 7 am curfew, and conditions not to offer violence and not to associate with the victim.

[6] At around 7:30 am on 9 January 2022, the victim was sleeping at her home address with the appellant (who was in breach of his conditions by associating with the victim). She was 28 weeks’ pregnant.

1      Crimes Act 1961, s 194A, maximum penalty 2 years’ imprisonment.
2      Crimes Act 1961, s 202C, maximum penalty 5 years’ imprisonment.
3      Summary Offences Act 1981, s 21(1)(a), maximum penalty 3 months’ imprisonment.

[7] The appellant woke her by slapping her three times to the left side of her forehead with an open palm. He told her, “This is what you get, and this is why I am going to slap you all day”. He said, “I’m going to rape you, put you in the closet, and tie you up.” The victim got up and went to the lounge. The appellant followed her, told her that he would continue to hurt her, and slapped her to the left side of her face with an open palm.

[8] The appellant then picked up a plastic gun and started shooting the victim's legs and arms with gel bullets. The victim walked to the bedroom. According to the victim’s impact statement, the appellant followed her, saying, “I’ll kill you when my baby is born.” The victim feared for…

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 Cave v Police

Details

AGLC: Cave v Police [2023] NZHC 361
Case: [2023] NZHC 361
Decision Date: 2 March 2023

CaseChat Overview and Summary

Rawiri Cave appeals against a sentence of home detention imposed by Judge Clark in the Manukau District Court. The charges against Mr Cave were assault on a person in a family relationship (x2), assault with a weapon, and threatening behaviour. Mr Cave’s grounds of appeal were that the sentencing Judge erred in: (a) applying an excessive uplift for the fact that the offending was while on bail; (b) applying an excessive uplift for his previous criminal history; (c) not discounting enough for time spent on electronically monitored (EM) bail and in custody; and (d) failing to properly consider whether a sentence less than home detention was appropriate. The High Court found that the sentence was not manifestly excessive and dismissed the appeal. The Judge was entitled to impose a three-month uplift to account for the fact that Mr Cave had offended against the same victim while on bail, and a four-month uplift for his previous convictions. The High Court considered that the uplifts were within the range available to the Judge and proportionate to the seriousness of the offending. The Judge had correctly calculated the discount for the time Mr Cave had spent on EM bail and in custody, and was correct to reject a sentence of community detention in favour of home detention. The sentence was favourable to Mr Cave and did not amount to a manifest injustice.

Orders