Hamiora v Police - [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…

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 Hamiora v Police

Details

AGLC: Hamiora v Police [2013] NZHC 98
Case: [2013] NZHC 98
Decision Date: 8 February 2013

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