Eneliko v Police - [2014] NZHC 3330

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI 2014-463-80 [2014] NZHC 3330

BETWEEN
WHYLENE ENELIKO

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 17 December 2014

Counsel:

J M Holmes for Appellant
N G Belton for Respondent

Judgment:

18 December 2014

JUDGMENT OF HEATH J

This judgment was delivered by me on 18 December 2014 at 4.00pm pursuant to
Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, Tauranga
Counsel:
J M Holmes, Tauranga

ENELIKO v NEW ZEALAND POLICE [2014] NZHC 3330 [18 December 2014]

The appeal

[1] Mr Eneliko appeals against an effective end sentence of one year and one month’s imprisonment, imposed by Judge Geoghegan in the District Court at Tauranga on 24 October 2014.1 The charges to which Mr Eneliko pleaded guilty were burglary (x2), unlawful interference with a motor vehicle, theft, escaping custody and intentional damage. The offending occurred between 29 August 2014 and 14 September 2014.

[2] Mr Eneliko turned 17 years on 2 August 2014. Notwithstanding his age, Mr Eneliko is not a stranger to the youth and criminal justice systems. His first appearance in the Youth Court was on 24 July 2012, and his most recent was on 29
September 2014.

[3] On 29 September 2014, a declaration was sought from the Youth Court that

Mr Eneliko had failed to comply with conditions of a supervision order made on 28

July 2014, on three charges of burglary, one of robbery, one of resisting Police and one of escaping custody.2 As it happens, Judge Geoghegan also presided at that Youth Court hearing. He was aware that further charges were being called in the District Court on 24 October 2014. In the course of his judgment he said:

[4] I have reached the view that this matter had to be dealt with on a pragmatic basis. Given that it appears likely that [Mr Eneliko] will be sentenced to a custodial sentence on 24 October, one would have to question what the practical advantage is of transferring these matters to the District Court, bearing in mind that upon granting the application I would have to direct an FGC and the matter would have to come back before the court for preparation of a plan and report. As a result of my discussion with [Mr Eneliko’s social worker], he has agreed to withdraw this application. It is probably fair to say that that was not his first choice, but there is a practicality about this matter which needs to be acknowledged. I have explained to [Mr Eneliko] that he appears to be one of those unfortunate young men who appears to be destined to spend significant periods of time in prison. I sincerely hope that that is not the case.

Grounds of appeal

[4] Mr Holmes, on behalf of Mr Eneliko, advances four grounds in support of the appeal:

1 Police v Eneliko DC Tauranga CRI-2014-070-3171, 24 October 2014 (Judge Geoghegan).
2 Police v WE [2014] NZYC 715 (Judge Geoghegan) at…

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: [2014] NZHC 3330
Decision Date: 18 December 2014

CaseChat Overview and Summary

In Eneliko v Police, Whylene Eneliko appealed against the effective end sentence of one year and one month's imprisonment, imposed by Judge Geoghegan in the District Court at Tauranga. Eneliko pleaded guilty to burglary, unlawful interference with a motor vehicle, theft, escaping custody, and intentional damage. Eneliko's counsel advanced four grounds for the appeal: (a) the starting point for the sentence was too high, (b) no uplift for previous offending was appropriate as it had not come before the District Court previously, (c) there was a failure to give appropriate credits for mitigating factors, and (d) an irrelevant consideration was likely taken into account, namely an earlier decision of the Youth Court over which Judge Geoghegan had presided.

The court considered each of these grounds in turn. Regarding the starting point, the court found that the Judge's choice of 14 months imprisonment was within a range that can be discerned from the authorities. For the uplift for prior offending, the court held that a period of six months was added to take account of both types of aggravating circumstances, and this was appropriate. As to credit, the court held that the Judge expressed his reasons for the credits adequately and there was no error in the way the credits were given. Finally, regarding the relevance of the September 2014 Youth Court decision, the court held that the Judge was entitled to take account of the numerous appearances made by Eneliko in the Youth Court, and the nature of the offending that had been proved or admitted.

The court held that it was not satisfied that the end sentence of one year and one month's imprisonment can be shown to be clearly excessive, and therefore the appeal was dismissed.

Orders