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Fataiki v Police

Fataiki v Police

Case [2021] NZHC 3446 14 December 2021

Appeal

Sentencing

Breach of Release Conditions

Driving While Disqualified

Unlawful Possession of Explosive

Unlawful Possession of Police Property

Misuse of Drugs

Receiving Stolen Property

Fiduciary Duty

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-442

[2021] NZHC 3446

BETWEEN
KYLE JACK FATAIKI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 13 December 2021

Appearances:

M Timmins for the Appellant Z Trinder for the Respondent

Judgment:

14 December 2021

JUDGMENT OF GAULT J

This judgment was delivered by me on 14 December 2021 at 4:00 pm.
Registrar/Deputy Registrar

……………………………………

Solicitors:
Mr M Timmins, Timmins Law, Auckland
Ms Z Trinder, Meredith Connell, Office of the Crown Solicitor, Auckland

FATAIKI v POLICE [2021] NZHC 3446 [14 December 2021]

Introduction

[1] Mr Fataiki appeals against his sentence of 20 months’ imprisonment imposed by Judge J M Jelaš in the Waitākere District Court on 2 September 2021 following guilty pleas to the following charges:1

(a)one charge of possession of explosive;2

(b)one charge of driving while disqualified (third or subsequent);3

(c)one charge of possession of methamphetamine;4

(d)one charge of possession of utensils;5

(e)one charge of receiving $500 to $1,000;6

(f)one charge of receiving under $500;7

(g)one charge of unlawful possession of Police property;8 and

(h)one charge of breaching release conditions.9

[2] Mr Fataiki had previously accepted a sentence indication given by Judge Glubb on 3 May 2021.10 Judge Jelaš sentenced Mr Fataiki in line with this sentence indication. Mr Fataiki appeals on the basis that the end sentence was manifestly excessive because the starting point for the lead offence of unlawful possession of explosive was too high.

1      New Zealand Police v Fataiki [2021] NZDC 17567.
2      Arms Act 1983, s 45(1). Maximum penalty: 4 years’ imprisonment and/or $5,000 fine.
3      Land Transport Act 1998, ss 32(1)(a) and 32(4). Maximum penalty: 2 years’ imprisonment or
$6,000 fine.
4      Misuse of Drugs Act 1975, s 7(1)(a) and (2). Maximum penalty: 6 months’ imprisonment and/or
$1,000 fine.
5      Misuse of Drugs Act 1975, s 13(1)(a) and (3). Maximum penalty: 1 year’s imprisonment and/or
$500 fine.
6      Crimes Act 1961, ss 246 and 247(b). Maximum penalty: 1 year’s imprisonment.
7      Crimes Act 1961, ss 246 and 247(c). Maximum penalty: 3 months’ imprisonment.
8      Policing Act 2008, s 50. Maximum penalty: 3 months’ imprisonment and/or $2,000 fine.
9      Sentencing Act 2002, s 96(1). Maximum penalty: 1 year’s imprisonment or $2,000 fine.
10     New Zealand Police v Fataiki DC Waitākere CRI-2020-090-5204, 3 May 2021.

The offending

[3] On 5 March 2007 Mr Fataiki was convicted in the Manukau District Court on two charges of driving while disqualified.

[4] On 8 April 2008 Mr Fataiki was convicted in the Manukau District Court on a further two charges of driving while disqualified.

[5] On 29 July 2014 Mr Fataiki was convicted in the Manukau District Court on two more charges of driving while disqualified.

[6] Sometime between July 2014 and December 2014, Detective P’s vehicle was broken into outside his Manukau address and his Police photo identification badge and detective badge were stolen from the vehicle.

[7] On 12 September 2019 Mr Fataiki was disqualified from driving for one year…

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 Fataiki v Police

Details

AGLC: Fataiki v Police [2021] NZHC 3446
Case: [2021] NZHC 3446
Decision Date: 14 December 2021

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Fataiki v Police saw the appellant, Mr Fataiki, appealing against his sentence of 20 months’ imprisonment imposed by the Waitākere District Court. Mr Fataiki had pleaded guilty to multiple charges, including possession of explosive, driving while disqualified, possession of methamphetamine, and possession of stolen property. The central issue was whether the sentence imposed was manifestly excessive, particularly concerning the starting point for the lead offence of unlawful possession of explosive. The court considered the arguments of both parties, focusing on whether the starting point for the lead offence was appropriately set, and whether the overall sentence was within the justifiable range. The court found that while the starting point for the possession of explosive was indeed too high, treating the driving while disqualified charge as the lead offence was more appropriate. Consequently, the court concluded that the sentence, while within the range, was still manifestly excessive and reduced the sentence to 17 and a half months’ imprisonment. The appeal was thus allowed, and the sentence was amended accordingly.

Orders