Hunia v Police

[2014] NZHC 3217

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2014-463-71 [2014] NZHC 3217

BETWEEN

PHILLIP HUNIA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	15 December 2014
Appearances:	R Vigor-Brown for Appellant A Hill for Respondent
Judgment:	15 December 2014

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

HUNIA v NEW ZEALAND POLICE [2014] NZHC 3217 [15 December 2014]

[1]      Mr Hunia pleaded guilty in the District Court to one charge of breach of community  work,  one  charge  of  theft,  one  charge  of  trespass,  one  charge  of breaching his bail, and a charge of breaching the terms of a protection order.   On

28 August 2013, Judge Weir sentenced Mr Hunia to an effective term of nine months imprisonment on all charges.1   He now appeals against sentence on the basis that the end sentence was manifestly excessive.

Background

[2]      In order to understand the circumstances in which the Judge came to impose the sentence, it is necessary to have regard to the chronology leading to the charges.

[3]      The  earliest  charge  in  time  is  the  charge  of  breaching  a  sentence  of community work.   This charge related to Mr Hunia’s failure to comply with the terms of his sentence of community work on 19 March 2014.  The charge was filed on 18 June 2014, but could not be served on Mr Hunia.  Ultimately, a warrant for his arrest was issued on 7 August 2014.

[4]      The theft charge was laid as a result of an incident on 20 June 2014, when Mr Hunia went to a supermarket and stole two bottles of wine.  This charge required Mr Hunia to appear for the first time on 24 July 2014.  Mr Hunia duly appeared on that date, and was bailed to appear again on 6 August 2014.  He did not appear on that date, and a warrant for his arrest was accordingly issued.   This was  ultimately executed on 22 August 2014.

[5]      The trespass charge was laid after Mr Hunia went to another supermarket on

21 July 2014.  He had earlier been served with a trespass notice forbidding him from going to that supermarket.   He claimed when arrested that he was aware of the existence of the trespass, but believed that it had expired.  Mr Hunia also appeared for the first time on that charge on 24 July 2014 and was bailed to appear again on

6 August 2014.   Given his non-appearance on 6 August a warrant to arrest was

issued on this charge as well.

1      New Zealand Police Department of Corrections v Hunia DC Rotorua CRI-2014-063-002496, 28

August 2014.

[6]      After Mr Hunia was arrested on 22 August 2014, he appeared in front of the Justices of the Peace.   They then bailed him to appear on 26 August 2014 on the charges of theft, trespass and breaching his community work.

[7]      Within  24  hours  of  being  released  on  bail  on  this  occasion,  Mr  Hunia breached the terms of a protection order by going to the premises of his former partner and her daughter.   This occurred at approximately 11.25 pm on Saturday

23 August 2014.  Mr Hunia demanded to be let into the property in spite of requests by his former partner for him to leave immediately.  When the police were called, they found Mr Hunia on a neighbouring property in an agitated state.  Mr Hunia then remained in custody on this charge until 28 August 2014, when he was sentenced by Judge Weir on all charges after having entered guilty pleas.

Grounds of appeal

[8]      Counsel for Mr Hunia acknowledges that Mr Hunia has no fewer than 175 previous convictions, and that he has served 96 sentences of imprisonment.   He submits, however, that a period of three months imprisonment would have been sufficient to reflect the seriousness of the charge of breaching the protection order. Applying the totality principle, an uplift of three months would have been justified to reflect all remaining charges.  This ought to have resulted in an end sentence of six months imprisonment.

Decision

[9]      I  consider  that  the  charge  of  breaching  the  protection  order  has  two aggravating factors justifying a higher starting  point than that suggested by Mr Hunia’s counsel.  First, Mr Hunia has one previous conviction in 2012 for breaching a  protection  order  in  respect  of  the  same  complainant.    Of  itself,  that  is  a significantly aggravating factor.   A further factor increasing the culpability of this offending is the fact that it occurred within 24 hours after Mr Hunia had been released on bail on the remaining charges.  He must have known that he was courting disaster if he was to offend so shortly after being released on bail having failed to appear on earlier occasion.

[10]     I consider that  the charge of breaching the protection  order  warranted  a starting point of not less than six months imprisonment, and that a reasonably significant uplift was required to reflect the aggravating factors to which I have referred.  An uplift of around 50 per cent, or three months, would have been appropriate.   This would have led to an end starting point of nine months on that charge before taking into account the mitigating factor of the guilty plea.

[11]     Having regard to totality factors, I consider a further uplift of three months was justified to reflect the remaining charges.   Mr Hunia has a chronic history of shoplifting and theft.   Any further charges of this nature will inevitably lead to sentences to imprisonment.  The trespass matter was also of moderate seriousness, given the fact that he clearly knew that he was not supposed to be at the supermarket. An uplift of three months was therefore well within range.

[12]     This leads to an end starting point of 12 months imprisonment before taking into account the discount to be given for the guilty plea.  In applying the discount of

25 per cent, an end sentence of nine months imprisonment is produced.   This is exactly the sentence that the Judge imposed.  For the reasons I have outlined, it must be viewed as being within range.

Result

[13]     The appeal against sentence is dismissed.

Lang J

Solicitors:

Crown Solicitor, Rotorua