Haere v Police - [2015] NZHC 2397

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2015-416-000016 [2015] NZHC 2397

BETWEEN
RENALDO KOMARU HAERE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 1 October 2015

Appearances:

B Webby for Appellant
C R Walker for Respondent

Judgment:

1 October 2015

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

Solicitors:
Crown Solicitor, Napier
Counsel:
B Webby, Wairoa

HAERE v NEW ZEALAND POLICE [2015] NZHC 2396 [1 October 2015]

[1] Mr Haere pleaded guilty in the District Court to charges of assault with intent to injure, trespass and breaching the terms of a protection order.1 In addition, he was to be re-sentenced on a charge in respect of which he had earlier been sentenced to two months community detention. On 7 August 2015 Judge Down imposed an effective sentence of 18 months imprisonment on Mr Haere. Mr Haere now appeals against sentence on the basis that the Judge erred in fact, and that this led him to
impose a sentence that was manifestly excessive.

Background

[2] The principal charges for which Mr Haere was sentenced related to an incident that occurred on 28 October 2014. On the afternoon of that day Mr Haere was at the address that he occupies with his partner and young child. He and his former partner were drinking alcohol and got into an argument. This led to Mr Haere kicking his partner on the legs on several occasions. He then punched her with some force on three or four occasions to the area of her ribs. When she yelled at him to stop, he refused and slapped her four times with moderate force to her face. Mr Haere’s partner then ran from the address and sought help from a neighbour.

[3] As a result of this incident Mr Haere’s partner was left with bruising to her legs and a sore chest. Although the summary of facts refers to the victim sustaining a cracked rib, medical notes made at the time suggest that there was a possibility of a cracked rib rather than a certainty.

[4] The trespass charge arises out of a separate incident that occurred on

26 February 2015. On that occasion Mr Haere went to a residential property from which he had previously been trespassed. He knocked on the door of the address on several occasions and then began knocking on a bedroom window. When the occupant called the police, they found Mr Haere at the address. He told the police that he was just visiting a friend and that he was not harming anybody.

[5] The re-sentencing on the sentence of community detention was necessary because Mr Haere had previously been serving that sentence at his partner’s address.

1 New Zealand Police v Haere [2015] NZDC 15753.

The incident that occurred on 28 October 2014 meant that he could not continue to serve the sentence at that address. As a result, it was necessary to impose an alternative sentence upon him.

The structure of the sentence

[6] On the charge of assault…

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: [2015] NZHC 2397
Decision Date: 1 October 2015

CaseChat Overview and Summary

In the High Court of New Zealand, Renaldo Komaru Haere appealed against his sentence, which had been imposed by Judge Down in the Gisborne District Court. Haere was found guilty of assault with intent to injure, trespassing, and breaching a protection order. He was also re-sentenced for an earlier charge in respect of which he had been sentenced to two months of community detention. The District Court had imposed an effective sentence of 18 months imprisonment on Haere. The primary legal issue in this appeal was whether the District Court Judge erred in imposing the sentence. Haere argued that the Judge's errors led to a manifestly excessive sentence. The court considered two specific errors in the sentencing process. The first error was the imposition of a two-month uplift to reflect that Haere was serving a sentence of community detention at the time of the assault, which was not applicable as the community detention sentence was for a separate offence. The second error was the imposition of a three-month uplift to reflect previous convictions, where the Judge mistakenly believed Haere had served community detention for a breach of a protection order, when in fact he had only been ordered to pay court costs. The High Court accepted the appeal and reduced the sentence to 15 months imprisonment, taking into account the errors in the original sentencing process. The court also confirmed the sentences imposed for the other charges.

Orders