Hetariki v Police

Case [2015] NZHC 2461


IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2015-409-000081 [2015] NZHC 2461

BETWEEN

LYALL ANZAC HETARIKI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 7 October 2015

Appearances:

D Matthews for Appellant
K B Bell for Respondent

Judgment:

8 October 2015

JUDGMENT OF DUNNINGHAM J

Background

[1]      Lyall Hetariki appeals his sentence of two years five months’ imprisonment

imposed by Judge Strettell on 4 August 2015 on two counts of burglary.1

[2]      Although  the  appeal  was  originally  lodged  against  both  conviction  and sentence, the conviction appeal has been abandoned.

The offending

[3]      The two offences occurred on 11 May 2015 between 11.45 am and 2.40 pm, when  Mr  Hetariki  was  in  the  suburb  of  Redwood.    He  went  to  a  property  in Vaughan Way, discovered there was nobody present, and then attempted to enter the property using a screwdriver and an aluminium cricket wicket, but was unable to open the rear window.  He then moved to a property close by, found that the owner

was not home there, took a ladder from the rear of the address and threw it at a

1      Police v Hetariki [2015] NZDC 15433.

HETARIKI v NEW ZEALAND POLICE [2015] NZHC 2461 [8 October 2015]

window.  It did not break.  He then found a rock, smashed the glass and climbed in. He located a wallet in a bedroom and took $150 from it before leaving.

District Court sentencing

[4]      When sentencting on the two charges, Judge Strettell took the appellant’s

14 previous burglary convictions, as well as numerous other dishonesty offending, as an aggravating feature noting that Mr Hetariki had a history of 132 previous convictions.2

[5]      The Judge took a starting point of two years and six months’ imprisonment having regard to the offending and uplifted that by six months to reflect the aggravating features relevant to the offender, noting that he is a “recalcitrant and regular serious offender whom the public requires protection from”.3   That took the sentence to three years, which the Judge then reduced by seven months to reflect the guilty pleas entered at an earlier stage and his expressed willingness to look at an

alternative to offending upon his release.   That reduced the sentence to a term of two years, five months,  which was the sentence ultimately imposed, along with reparation of $550 and $400 in respect of each property owner who was burgled.

Principles on appeal

[6]      Mr Hetariki may appeal his sentence as of right.4   This Court must only allow the appeal if satisfied that:5

(a)       for  any  reason,  there  is  an  error  in  the  sentence  imposed  on conviction; and

(b)      a different sentence should be imposed.

2      It  would appear from the criminal record that the number is in fact 15 previous  burglary offences.

3 At [4].

4      Criminal Procedure Act 2011, s 244.

5      Section 250.

[7]      The  Court  of  Appeal  has  recently  confirmed  that  where  a  sentence  is “manifestly excessive”, that is an error which justifies setting the sentence aside on appeal.6     Importantly, as was noted…

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Hetariki v Police [2015] NZHC 2461
Case
[2015] NZHC 2461
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CaseChat Overview and Summary

Lyall Anzac Hetariki appealed against his sentence of two years and five months’ imprisonment for two counts of burglary, imposed by Judge Strettell on 4 August 2015. The appeal was originally against both conviction and sentence, but the conviction appeal has been abandoned. The court was required to decide whether the sentence imposed was manifestly excessive and whether a different sentence should be imposed. The appellant argued that the burglaries were at the lower level of culpability and that a starting point of no more than 16 to 18 months should have been taken. The court considered that while the offending was relatively minor, there was some degree of premeditation and the appellant had a history of previous offending. The court upheld the sentence imposed by the District Court, finding that it was not manifestly excessive or that a different sentence should have been imposed. The appeal was dismissed.

The court's reasoning was based on the fact that the appellant had a history of previous offending, including 132 previous convictions, 15 of which were burglary offences and a further 40 of which were other dishonesty offences. The court considered that a 12-month uplift was justified to reflect the appellant's criminal history. The court also accepted the discount applied by Judge Strettell to reflect remorse and the guilty plea, which amounted to a seven-month discount. The final sentence was two years and three months, which was only two months less than the sentence imposed by the District Court. The court concluded that to do so would simply be tinkering.

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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