Hiki v The Queen - [2014] NZHC 2570

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2014-416-0011 [2014] NZHC 2570

BETWEEN
MATTHEW RORO REWI HIKI

Appellant

AND

THE QUEEN Respondent

Hearing: 20 October 2014

Appearances:

M Prinsloo and A M Sceats for Appellant
S B Manning for Respondent

Judgment:

21 October 2014

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 21 October 2014 at 11.00 am pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date: ...................................

Solicitors: Woodward Crisp, Gisborne A M Sceats, Gisborne Elvidge & Partners, Napier

HIKI v R [2014] NZHC 2570 [21 October 2014]

Introduction

[1] The Appellant appeals against sentence imposed on two offences, committed at different times and in different circumstances. Sentence was imposed by Judge A J Adeane in the District Court at Gisborne on 23 July 2014, following guilty pleas by the Appellant.1

[2] The first offence was one of attempting to obstruct the course of justice, for which the maximum penalty is seven years’ imprisonment.2 This offence was committed in May 2014.

[3] The Judge adopted a starting point of two years’ imprisonment. The Judge uplifted the starting point by six months for a previous offence of the same nature, committed in 2011 and for which the Appellant had been sentenced to nine months’ imprisonment. The Judge allowed the Appellant a discount of 25 per cent for an early guilty plea, giving an end sentence of 22 months.

[4] The Appellant takes issue with the starting point, the extent of the uplift and submits that the Judge erred in failing to give a separate discount for remorse. The Appellant submits that a starting point of 18 months was appropriate, with an uplift of one month for the prior offending, less 25 per cent for the early guilty plea, giving an end sentence of 14 months’ imprisonment.

[5] The second offence was one of injuring with intent to injure, committed on

9 June 2014 whilst the Appellant was remanded in custody on the obstruction charge. The maximum penalty for this offence is five years’ imprisonment.3 Apparently the Appellant asked the complainant, another inmate, for some nicotine patches. The complainant replied that he did not have any. The Appellant then punched the complainant in the eye, fracturing his eye socket. The Judge sentenced the Appellant
to nine months’ imprisonment for this offending.

1      R v Hiki DC Gisborne CRI-2014-016-1147, 23 July 2014.
2      Crimes Act 1961, s 117(e).
3      S 189(2).

[6] The Judge determined that the two sentences should be served cumulatively as they arose out of separate incidents. Accordingly, the total period of imprisonment imposed was 31 months.

[7] No issue is taken with the starting point or end sentence on the injuring with intent charge. Counsel for the Appellant submitted, however, that the total period of imprisonment was wholly out of proportion to the gravity of the overall offending, as to which see s 85(2) Sentencing Act 2002.

Approach to appeal

[8] The Appellant has a general right of appeal against…

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 Hiki v The Queen

Details

AGLC: Hiki v The Queen [2014] NZHC 2570
Case: [2014] NZHC 2570
Decision Date: 21 October 2014

CaseChat Overview and Summary

Matthew Roro Rewi Hiki appeals against his sentence for two separate offences, committed in different circumstances. The first offence involved attempting to obstruct the course of justice, for which the maximum penalty is seven years' imprisonment. The second offence involved injuring with intent to injure, for which the maximum penalty is five years' imprisonment. The District Court Judge sentenced the appellant to 22 months' imprisonment for the first offence and nine months' imprisonment for the second offence, to be served cumulatively, resulting in a total of 31 months' imprisonment. The appellant contests the starting point for the first offence, the extent of the uplift for prior offending, and argues that the total sentence is disproportionate to the gravity of the overall offending. The High Court has the power to vary a sentence only if it is shown to be clearly excessive or one of the other prerequisites is met. The Court found that the appropriate starting point for the first offence was 18 months' imprisonment, and the uplift for prior offending should be three months' imprisonment, bringing the sentence to 21 months. The Court did not find any error on the part of the Judge in failing to reduce the sentence on account of expressions of remorse by the appellant. The appellant does not contest the sentence for the second offence. The Court found that the total sentence was not wholly out of proportion to the gravity of the overall offending, particularly as the offending involved violence within prison. The appeal is allowed in part, and the sentence imposed by the Judge on the offence of attempting to obstruct the course of justice is reduced to 16 months' imprisonment. In all other respects, the Judge's decision is confirmed. The appellant's total sentence is two years, one month's imprisonment.

Orders