Hemi v The Queen

[2005] NZCA 140

IN THE COURT OF APPEAL OF NEW ZEALAND

CA501/04

THE QUEEN

v

ADAM HEMI

Court:Hammond, O'Regan and Robertson JJ

Counsel:R G Glover for Appellant

A J Mills for Crown

Judgment:2 June 2005 

(On the Papers)

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by Robertson J)

[1]        This appeal against sentence has been heard on the papers under s 392B of the Crimes Act 1961.  The relevant materials, including written submissions which have been received in accordance with r 29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.

[2]        Mr Hemi appeals against a total effective sentence of three years imprisonment imposed on him in the District Court at Christchurch on 25 November 2004.  He entered pleas of guilty to one charge of breaching a protection order and one of threatening to kill. He was found guilty by a jury on a charge of attempting to burgle a liquor store. There was also a summary jurisdiction charge of breach of parole.

[3]        The Judge concluded that, if the matter had gone to trial on all issues, a sentence of four to four and a half years would have been imposed, but because of his eventual admission of guilt on some matters a total sentence of three years was appropriate.  A two year term of imprisonment was imposed on the attempted burglary, three months on the breach of protection order (which was concurrent), nine months on the threatening to kill (which was cumulative) and a further three months cumulatively on the breach of parole.

[4]        The appeal is advanced on the basis that the sentence was manifestly excessive and in particular that the facts of the attempted burglary placed it near the bottom of the scale for offending of that type and that the Judge’s overall assessment of four to four and a half years was too high.  Appellant’s counsel submitted that a sentence on the burglary of no more than one year was all that was justified.

[5]        The Crown argued that, in light of the actual culpability and bearing in mind the previous offending of the appellant, he must be seen as having a high risk of re‑offending.  In particular reference was made to the decision of this Court in R v Williams CA91/00 31 May 2000 the philosophy of which is reflected in s 85 of the Sentencing Act.  The Crown further submitted that in light of this man’s history he was to be seen as within the category of a recidivist burglar as identified by the High Court in Senior v Police (2000) 18 CRNZ 240.

[6]        We are not satisfied that any error is demonstrated in this case or that the cumulative effect of the sentences was too high.  In R v Cruden [2001] 2 NZLR 338 this Court held that the appropriate starting sentence for attempted burglary on an offender whose history and involvement was very similar to the present case was two years.

[7]        There may be room for differences as to how the three years might have been constructed but there were several offences which were separate.  The breach of parole was a fourth conviction of its type.  The counts involving the threats were matters of serious concern. We have no doubt that a sentence of three years imprisonment was well within the available sentencing discretion.

[8]        The appeal against sentence is accordingly dismissed.

Solicitors:
Crown Law Office, Wellington