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Durie v Police

Durie v Police

Case [2023] NZHC 3497 4 December 2023

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IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI-2023-454-000027

[2023] NZHC 3497

BETWEEN
TAMIHANA DURIE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 29 November 2023

Appearances:

J A Younger for Appellant

K S Barber and N H Brown for Respondent

Judgment:

4 December 2023

JUDGMENT OF JOHNSTONE J

This judgment was delivered by me on 4 December 2023 at 2.41 pm

Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, Palmerston North

DURIE v POLICE [2023] NZHC 3497 [4 December 2023]

[1] At the age of 33, Tamihana Durie had by March 2023 been in a family relationship with a woman for around 10 years. There had been 10 family harm incidents between them.

[2] At around 3 am on 3 March 2023, Mr Durie and the woman were at a Palmerston North lodge. They engaged in a heated argument. Mr Durie assaulted the woman by grabbing her, pushing her onto a bed, and pulling her jacket collar across her throat restricting her breathing. Then Mr Durie threw the woman to the floor. And he grabbed her collar again, pulling it over her throat and restricting her breathing to the extent she momentarily lost consciousness.

[3] Mr Durie pleaded guilty to charges of assault in a family relationship, and strangulation. On 7 September 2023, Mr Durie was sentenced in the Palmerston North District Court to a total of 21 and a half months’ imprisonment.1 He appeals to this Court against that sentence.

[4] I must allow Mr Durie’s appeal if satisfied that there is an error in the sentence and a different sentence should be imposed. Otherwise, I must dismiss the appeal.2 In most sentence appeals brought by a defendant, the appeal court will not intervene unless the sentence is manifestly excessive. Whether the sentence is manifestly excessive is to be assessed in terms of the final sentence imposed, rather than the process by which it was reached. 3

[5] Mr Durie’s argument is that his sentence is manifestly excessive, because the overall starting point for the offending was too high, the discount for personal factors of 15 per cent was inadequate, and as a short-term sentence of imprisonment it should have been converted to home detention.

1      Police v Durie [2023] NZDC 19697.
2      Criminal Procedure Act 2011, s 250.
3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[36].

Was the overall starting point too high?

[6] The sentencing chose to select an overall starting point for the entire episode of violence, noting that there were two incidents of strangulation covered by a single charge.4

[7] In doing so, the Judge referred to the effects of Mr Durie’s offending, drawing from the victim impact statement. Mr Durie’s former partner says that since the offending she now suffers from post-traumatic stress disorder, insomnia, anxiety and depression. She feels she has to remind herself that Mr Durie cannot hurt her. Engaging with other people is extremely difficult.

[8] The Judge rejected…

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 Durie v Police

Details

AGLC: Durie v Police [2023] NZHC 3497
Case: [2023] NZHC 3497
Decision Date: 4 December 2023

CaseChat Overview and Summary

In the case of Durie v Police, the appellant, Tamihana Durie, sought to appeal his sentence of 21 and a half months’ imprisonment for charges of assault in a family relationship and strangulation. The appeal was heard by Johnstone J in the High Court of New Zealand at Gisborne. The appellant argued that his sentence was manifestly excessive due to an incorrect starting point for the offending, an inadequate discount for personal factors, and the failure to convert his short-term sentence to home detention. The court was tasked with determining whether the sentence imposed was manifestly excessive and, if so, what alternative sentence should be imposed.

The court first assessed whether the overall starting point for the offending was too high. The sentencing judge had selected a starting point of three years and three months’ imprisonment, considering the two incidents of strangulation and the victim impact statement. The court compared this starting point with the case of Shramka v R, where a similar starting point was adopted for moderate level strangulation. Despite some differences in the cases, the court concluded that the starting point in this case was appropriate.

Next, the court considered whether the discount for personal factors was inadequate. The sentencing judge had applied a 15 per cent discount for personal factors, which the appellant argued was insufficient given his background of exposure to violence and substance abuse. The court found that the 15 per cent discount was appropriate, as the appellant’s background, while difficult, was not as severe as in cases where a higher discount was applied.

Lastly, the court examined whether the sentence should have been converted to home detention. The sentencing judge had declined to commute the sentence to home detention, considering the seriousness of the charge and the need for imprisonment as the least restrictive outcome. The court found no error in this decision, as the appellant’s sentence would expire in the near future, and he would be subject to post-release conditions to support his reintegration into the community.

In conclusion, the court dismissed the appellant’s appeal, finding that the sentence imposed was not manifestly excessive and that the sentencing judge had appropriately exercised his discretion in determining the sentence.

Orders