Haere v Police
[2015] NZHC 2397
•1 October 2015
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 RespondentJudgment:
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 with intent to injure, the Judge took a starting point of 18 months imprisonment. He then applied an uplift of three months to reflect the fact that in assaulting his partner Mr Haere had breached the terms of a protection order that was then in existence. He imposed a further uplift of two months to deal with the re-sentencing on the sentence of community detention. This produced a starting point of 23 months imprisonment. The Judge noted that Mr Haere has numerous previous convictions for similar types of offences. He applied an uplift of three months to reflect that factor, together with a further uplift of two months to reflect the fact that the Judge understood Mr Haere had committed the offences on
28 October whilst serving a sentence of community detention. From the end starting point of 28 months imprisonment the Judge applied a reduction of four months to reflect the fact that Mr Haere had expressed remorse and had attended a successful restorative justice counselling session with his partner. He then applied a discount of six months or 25 per cent to produce an end sentence of 18 months imprisonment.
[7] Mr Webby submits that the Judge erred in two ways when imposing the sentence. The Crown agrees that the Judge errs in the first but does not accept that he erred in relation to the second.
The uplift to reflect the fact that Mr Haere was serving a sentence of community detention on 28 October 2014
[8] Both counsel now accept that the sentence of community detention was imposed shortly after the incident that occurred on 28 October 2014. As a result, there was no basis for the Judge applying an uplift of two months to reflect that factor in relation to the offending on 28 October. The appeal must accordingly be allowed to the extent necessary to remedy this error.
The uplift to reflect previous convictions
[9] The second alleged error flows from the following passage of the Judge’s
decision:
[4] Your previous convictions, (most recently in May of last year for a breach of protection order) you were sentenced to community detention. In
2008, for assault, you received supervision and community work and in
2006, for male assaults female and an assault child, you went to prison for six months. All of those offences are against the same victim. There are lots
of other offences of violence in the 1990s.
[10] It is clear from this passage that the Judge appears to have accepted that Mr Haere received a sentence of community detention in May 2014 on an earlier charge of breaching a protection order. If so, the Judge was clearly mistaken because on the previous charge of breaching a protection order Mr Haere was only ordered to pay court costs of $130 on that charge. He was not sentenced to community detention. The sentence of community detention was imposed in respect of a charge of driving while disqualified.
[11] Mr Webby submits that the relevance of this error for present purposes is that it is likely to have affected the uplift that the Judge applied in relation to the charge of breaching a protection order. In other words, the Judge may have mistakenly been under the impression that the sentence previously imposed on the earlier charge of breaching a protection order was one of community detention when that was not the case. This may have influenced his decision to impose a sentence of three months’ imprisonment rather than a lesser sentence.
[12] The Crown points out that the penalties for this type of offence were increased in September 2013. The maximum sentence is now three years’ imprisonment, whereas previously it was two years’ imprisonment. The Crown submits that the uplift of three months to reflect the charge of breaching a protection order was within the available range.
[13] I accept that submission, but I also agree with Mr Webby that the Judge’s sentencing remarks suggest that he believed Mr Haere had previously served a sentence of community detention after being convicted of breaching a protection
order. If so, that may well have influenced him in his decision to impose a sentence of three months’ imprisonment. Although the charge of breaching a protection order must be given discrete recognition, I prefer to err on the side of caution and to reduce the sentence that the Judge imposed to guard against the possibility of error. I propose to reduce the sentence imposed on that charge to one of one months imprisonment.
Result
[14] The effect of the foregoing is that the end starting point of 28 months imprisonment must be reduced by four months to 24 months imprisonment. I retain the discount the Judge applied in respect of remorse and the steps taken in relation to the restorative justice conference. This produces a sentence of 20 months imprisonment before taking into account guilty pleas. Applying a discount of five months or 25 per cent to reflect this factor, an end sentence of 15 months imprisonment is produced.
[15] I therefore quash the sentence of 18 months imprisonment on the charge of assault with intent to injure. In its place I substitute a sentence of 15 months imprisonment. In all other respects the sentences imposed in the District Court are
confirmed.
Lang J
0