Gebremedhin v Police - [2018] NZHC 2824

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-323

[2018] NZHC 2824

BETWEEN
KALAYU GEBREMEDHIN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 30 October 2018

Counsel:

J Grainger for Appellant

K R Muirhead for Respondent

Judgment:

31 October 2018

JUDGMENT OF WHATA J

This judgment was delivered by me on 31 October 2018 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors: Meredith Connell, Auckland

GEBREMEDHIN v POLICE [2018] NZHC 2824 [31 October 2018]

Introduction

[1] Mr Gebremedhin pleaded guilty to failing to answer bail, possessing non- approved psychoactive drugs, possessing medicine without an excuse, possessing a class C drug, wilful damage and disorderly behaviour. He was sentenced to nine months’ imprisonment. He appeals this sentence as manifestly excessive. A table of the charges and corresponding sentences was helpfully produced by the Police and is reproduced as an appendix to this judgment.

[2] At the conclusion of argument, I indicated that I would allow the appeal and substitute a sentence of three and half months. My reasons follow.

Facts

[3] The respondent provided a helpful summary of the facts. I largely adopt it. There are three periods of offending.

The June offending

[4] On 16 June 2017, the Police conducted a bail check at a property in Avondale. They smelled freshly burnt synthetic cannabis coming from the garage. They entered the garage. They saw synthetic cannabis in a point bag and two home-made bongs on a table next to Mr Gebremedhin.

[5] Mr Gebremedhin then verbally abused Police and struggled with Police while he was being arrested. He told the two Police constables that “I remember your faces, when I’m out I’m going to get you outside of work”. He continued to threaten Police while being processed.

[6]Mr Gebremedhin subsequently entered guilty pleas to:

(a)Possessing a non-approved psychoactive product; and

(b)Speaking threateningly.

The September offending

[7] Police visited an address on an unrelated matter on 18 September 2017. They found Mr Gebremedhin sleeping on a couch. He admitted ownership of two snap-lock plastic bags containing bath salts (a class C controlled drug) and a sleeping pill.

[8]Mr Gebremedhin subsequently entered guilty pleas to:

(a)Possessing a restricted medicine without reasonable excuse; and

(b)Possessing a class C controlled drug.

[9] On 5 September 2017, Mr Gebremedhin was bailed to appear at Auckland District Court. He failed to appear. He later entered a guilty plea to failing to answer District Court bail. He was subsequently released on bail.1

The December offending

[10] Mr Gebremedhin got into a taxi on Shortland Street at about 9 pm on 29 December 2017. Because Mr Gebremedhin appeared very intoxicated, the driver asked him to choose a different taxi. Mr Gebremedhin became angry and abusive. The driver got out and called the Police.

[11] Mr Gebremedhin started kicking and throwing things around the taxi. He got out and poured beer on to the taxi. He punched a side mirror causing…

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: [2018] NZHC 2824
Decision Date: 31 October 2018

CaseChat Overview and Summary

Mr Gebremedhin appealed his sentence of nine months' imprisonment, arguing it was manifestly excessive. The appeal was heard and determined by Whata J. The Court found that the starting point of four months for the bail breach was excessive, and the subsequent uplifts were also disproportionate. The Judge substituted a sentence of three and a half months.

The legal issues in the case centred around the appropriateness of the starting point and the uplifts applied to the sentence. The Court found that the starting point for the bail breach was manifestly excessive and not supported by authority. The subsequent uplifts for prior offending and the drug charges were also found to be excessive. The guilty plea discounts were also inadequate, and the Court found that a 20-25% discount should have been applied.

The Court substituted a sentence of three and a half months, which was considered appropriate after taking into account the guilty plea discounts. The Court found that the original sentence of nine months was manifestly excessive and not justified by the offending. The appeal was allowed, and the original sentence was set aside.

The Court's decision highlights the importance of ensuring that sentences are proportionate and not manifestly excessive. The Court found that the original sentence in this case did not meet this standard and was therefore inappropriate. The substituted sentence of three and a half months is considered to be more proportionate to the offending and the principles of sentencing.

Orders