Hetariki v Police - [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…

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 Hetariki v Police

Details

AGLC: Hetariki v Police [2015] NZHC 2461
Case: [2015] NZHC 2461
Decision Date: 8 October 2015

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