Hamiora v Police

Case [2013] NZHC 98


IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-419-87 [2013] NZHC 98

BETWEEN  AARON JAMES HAMIORA Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         7 February 2013

Counsel:         T Sutcliffe for Appellant

J E Tarrant for Respondent

Judgment:      8 February 2013

JUDGMENT OF KATZ J

In accordance with r 11.5 High Court Rules

I direct the Registrar to endorse this judgment with a delivery time of 3 p.m. on 8 February 2013.

Solicitors:           Crown Solicitor, Hamilton – jet@almaodouch.co.nz

Copy to:            T Sutcliffe, Hamilton –  thomas@sutcliffe.co.nz

HAMIORA V NEW ZEALAND POLICE HC HAM CRI-2012-419-87 [8 February 2013]

Introduction

[1]      Aaron Hamiora appeals against a sentence of two years and seven months’ imprisonment imposed by Judge Tompkins in the District Court at Hamilton following his pleas of guilty to charges of attempting to pervert the course of justice and assault with a weapon.

[2]      Mr Hamiora appeals on the grounds that:

(a)       the  sentence  was  manifestly  excessive  because  the  starting  points adopted in respect of both charges were too high; and

(b)      the Judge failed to give proper consideration to the totality principle.

Facts

Assault with a weapon

[3]      On  19  December  2011,  the  complainant  and  an  associate  went  to  Mr Hamiora’s home as the complainant had arranged to sell his car to Mr Hamiora. After speaking for approximately 30 minutes, Mr Hamiora left for a short time.  He returned holding a rifle.

[4]       Mr Hamiora pointed the rifle at the complainant’s face, stating “It’s gonna go down like this” and “this is how it’s gonna go down”.  As the complainant walked away, Mr Hamiora demanded he walk back toward him otherwise he would shoot him.   Fearful of being shot, the complainant started to walk back towards Mr Hamiora, while Mr Hamiora continued to point the weapon at him.

[5]      Mr Hamiora then attempted to push the complainant into a shed, but the complainant resisted.   Following this Mr Hamiora pointed the weapon at the complainant again and threatened to “put a hole in him.”  The complainant was able to  escape  when  Mr  Hamiora  became  distracted  by  the  complainant’s  associate

driving up the driveway in a vehicle.   The complainant and his associate fled and contacted police, who arrested Mr Hamiora a short time later.

Attempting to defeat the course of justice

[6]      Mr  Hamiora’s  then  partner  witnessed  the  above  incident.     She  was subsequently served with a witness summons to appear as a prosecution witness.  Mr Hamiora became aware of this and told the victim in a phone conversation not to go to court because without her evidence he would walk free.  He also told her to hide at his sister’s house until the court case was finished.   The victim indicated she would not go into hiding and would attend court.

[7]      Mr Hamiora then sent a series of text messages to the victim on 22 May

2012, stating:

8:52 am: 24th of june n dnt go witness or nuthnk n avoid pigs

9:11am: Koz they wnt u 2 testifie against me

1:50pm: I dnt…

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Hamiora v Police [2013] NZHC 98
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[2013] NZHC 98
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CaseChat Overview and Summary

Aaron James Hamiora appeals against a sentence of two years and seven months' imprisonment imposed by the District Court at Hamilton following his pleas of guilty to charges of attempting to pervert the course of justice and assault with a weapon. The appeal is on the grounds that the sentence was manifestly excessive because the starting points adopted in respect of both charges were too high and that the judge failed to give proper consideration to the totality principle.

The court considered the starting point for the assault with a weapon charge, noting that there is no guideline authority for assault with a weapon. The court found that the starting point of 18 months was within the appropriate sentencing range available to the judge, taking into account the lethal nature of the weapon, the manner in which it was used, and the potential for harm. The court also considered the starting point for the perverting the course of justice charge, observing that witness intimidation is particularly serious and that the starting point of two years was not manifestly excessive.

In relation to the totality principle, the court found that the judge had appropriately considered the principle and that the cumulative sentences were appropriate. While a small reduction could possibly have been justified for totality, the end sentence was certainly within the sentencing range available to the judge. A total end sentence of two years and 7 months was not manifestly excessive or out of proportion to the overall gravity of the offending.

The appeal against sentence is dismissed.

The final orders of the court are that Mr Hamiora's appeal against sentence is dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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