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…

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.

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Details

Case: [2014] NZHC 3217
Decision Date: 15 December 2014

CaseChat Overview and Summary

Phillip Hunia appealed against his sentence for multiple charges, including breach of community work, theft, trespass, breaching bail, and breaching a protection order. The District Court Judge sentenced him to nine months imprisonment. Hunia argued that the sentence was manifestly excessive. The High Court had to determine whether the sentence was within the appropriate range given the circumstances and legal principles.

The court examined the aggravating factors of Hunia's offending, particularly his previous conviction for breaching a protection order involving the same complainant and his breach occurring shortly after release on bail. These factors justified a higher starting point for the protection order breach charge. The court also considered the totality principle in sentencing, which requires consideration of all charges together. Hunia's history of shoplifting and theft warranted additional uplift in the sentence to reflect his chronic offending pattern. The court concluded that the sentence of nine months, after applying the discount for the guilty plea, was within the appropriate range.

The appeal was dismissed as the sentence was found to be within the appropriate range considering the totality of the charges and mitigating factors such as the guilty plea.

Orders