Hikaka v Police - [2020] NZHC 716

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2019-454-23

[2020] NZHC 716

TOBY BRYAN HIKAKA

v

NEW ZEALAND POLICE

Hearing: 7 April 2020

Appearances:

W Kronast for the Appellant J Harvey for the Respondent

Judgment:

7 April 2020

JUDGMENT OF COOKE J

[1] On 27 August 2019 Mr Hikaka was sentenced before Judge Rowe in the District Court at Palmerston North to 19 months’ imprisonment for the following charges:1

(a)Two charges of breach of community detention,2

(b)One charge for breach of intensive supervision,3

(c)Three charges of theft (under $500),4

1      New Zealand Police v Hikaka [2019] NZDC 16907.
2      Sentencing Act 2002, s 69G, maximum penalty six months’ imprisonment or $1,500 fine.
3      Section 70(A)(a), maximum penalty six months’ imprisonment or $1,500 fine.
4      Crimes Act 1961, s 219 and 223(d), maximum penalty three months’ imprisonment.

HIKAKA v NEW ZEALAND POLICE [2020] NZHC 716 [7 April 2020]

(d)One charge of intentional damage,5

(e)Two charges of driving contrary to an alcohol interlock licence,6

(f)One charge of driving in a dangerous manner,7 and

(g)One charge of failing to stop for red/blue flashing lights while exceeding the applicable speed limit.8

[2] Mr Hikaka appeals his sentence on the grounds that the District Court erred in failing to grant Mr Hikaka leave to cancel his sentence of imprisonment.

[3] For the reasons set out in my decision in White v New Zealand Police, the Court retains the jurisdiction to make decisions such as bail decisions, or decisions concerning substituting a sentence of imprisonment for home detention notwithstanding the COVID-19 situation.9 The COVID-19 situation may, however, affect the decision the Court should make. For example the Court may need to have information to be satisfied that the bail address, or home detention address, remains suitable notwithstanding the COVID-19 situation.10

[4] By memorandum dated 6 April 2020 the respondent suggested that this appeal should be adjourned in light of such considerations. I declined that application as it is important that the Court proceed to deal with important matters, such as matters affecting the liability of the person, notwithstanding the COVID-19 situation.

Factual background

[5] The two breaches of community detention relate to two instances where Mr Hikaka returned to his address after curfew. On 30 December 2018 Mr Hikaka

5      Section 269(3), maximum penalty seven years’ imprisonment.
6      Land Transport Act 1998, ss 32(1)(b) and 32(3), maximum penalty three months’ imprisonment or $4,500 fine.
7      Section 35(1)(b), maximum penalty three months’ imprisonment or $4,500 fine and minimum six month disqualification.
8      Sections 52A(1)(a)(ii), 52A(3), 52A(6) and 114(2), maximum penalty $10,000 fine and six month disqualification.
9      White v New Zealand Police [2020] NZHC 684 at [11]–[15].
10     At [24]–[26].

returned home almost an hour late. Prior to that occasion Mr Hikaka had returned late almost every day prior for the previous week despite repeated warnings from his parole officer. Then in early January, non-compliance with curfew continued. On 6 January Mr Hikaka returned home…

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.

Keep reading for free

Create a free CaseChat account to read Hikaka v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] NZHC 716
Decision Date: 7 April 2020

CaseChat Overview and Summary

The case of Hikaka v Police involves the appellant, Toby Bryan Hikaka, appealing against his sentence imposed by the District Court for a number of criminal charges. The respondent, New Zealand Police, was represented by J Harvey, while the appellant was represented by W Kronast. The appeal was heard on 7 April 2020 and the judgment was delivered on the same day by Cooke J. The central issue in this appeal is whether the District Court erred in declining to grant Mr Hikaka leave to cancel his sentence of imprisonment and substitute it with a sentence of home detention. The appellant argues that the District Court should have considered granting him leave to apply for cancellation of the sentence of imprisonment under section 80I of the Sentencing Act 2002, which allows for the substitution of a sentence of imprisonment with a sentence of home detention if a suitable residence is found at a later date.

The court considered the appellant's history of non-compliance with court orders and sentence conditions, which extended back to 2007, and his recent offending while subject to a sentence of intensive supervision and while on bail for theft charges. The court also noted that Mr Hikaka had failed to attend programmes in accordance with the special conditions of his sentence of intensive supervision, including alcohol and drug counselling. Given the appellant's extensive history of non-compliance and failure to attend rehabilitation programmes, the court was not satisfied that a sentence of home detention would be appropriate. The court further noted that the pre-sentence report had recommended a sentence of imprisonment and that Mr Hikaka had not displayed any motivation to address his non-compliance or demonstrated any remorse for his offending.

The court concluded that the District Court did not err in declining to grant leave to apply for cancellation of the sentence of imprisonment, as there was no basis to believe that Mr Hikaka would comply with the conditions of a home detention sentence. The appeal was dismissed, and the original sentence of 19 months' imprisonment imposed by the District Court was upheld.

In summary, the court held that Mr Hikaka's history of non-compliance and recent offending demonstrated that he was an unsuitable candidate for home detention, and the District Court's decision not to grant leave to cancel the sentence of imprisonment was not in error. The appeal was dismissed, and the original sentence was upheld.

Orders