Hunia v Police - [2013] NZHC 333

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2012-463-000058 [2013] NZHC 333

BETWEEN ANARU TAWHARANGI HUNIA Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 27 February 2013

Appearances: A Sykes for Appellant
S Simmers for Respondent

Judgment: 27 February 2013

(ORAL) JUDGMENT OF ANDREWS J [Appeal against sentence]

Solicitors:
Aurere Law : PO Box 1693, Rotorua 3040 - DX JP30025 (A Sykes) Gordon Pilditch : PO Box 740, Rotorua 3040

HUNIA V NEW ZEALAND POLICE HC ROT CRI 2012-463-000058 [27 February 2013]

Introduction

[1] On 23 August 2012 the appellant pleaded guilty to and was convicted on a charge laid under s 189(2) of the Crimes Act 1961, of injuring with reckless disregard for the safety of others. He was sentenced the same day to imprisonment for one year, ten months. That sentence had been indicated at a sentence indication immediately prior to the appellant’s entering the guilty plea.

[2] On the same day the appellant entered guilty pleas to and was convicted on charges of breaching a protection order, resisting arrest, and threatening to kill. On each of those charges he was sentenced to one month’s imprisonment, to be served concurrently.

[3] The appellant has appealed against sentence.

The offending

[4] The victim in respect of the charges of injuring and breaching a protection order had been in an on-and-off relationship with the appellant for some three years. At the time of the offending, she was 16 weeks pregnant with their child.

[5] The Police summary of facts records that on the evening of the offending the appellant was at the victim’s house. This was despite there being a final protection order in place against the appellant, and strict bail conditions that he not associate with her. The appellant was intoxicated.

[6] The summary of facts further records that an argument developed and the appellant became enraged when he thought the victim was laughing at him. He grabbed hold of her bag straps and pulled her towards him, causing her to fall and smash her head on a nearby kitchen table. The victim then lay motionless on the ground for approximately ten minutes. She then slowly made her way to the door to get fresh air. The appellant grabbed her arm from behind, using his right arm to

place her in a “choker” hold, squeezing on her neck and causing her to lose her breath and become faint. The victim’s child was present during the incident.

[7] As a result of the incident the victim had a 3 cm laceration above her right eye, a minor cut inside her lip, soreness to her neck, bruising to her hip, and on her lower left leg.

[8] The charges of resisting arrest and threatening to kill arose when the Police arrived at the address the following day. The appellant was at the address. The attending Constable arrested the appellant for breach of his bail condition of non- association with the victim. The appellant became abusive, and shouted that if the Constable…

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: [2013] NZHC 333
Decision Date: 27 February 2013

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal from Anaru Tawharangi Hunia against the sentence he received following his conviction on multiple charges, including injuring with reckless disregard for the safety of others, breaching a protection order, resisting arrest, and threatening to kill. The appellant was sentenced to a total of one year and ten months imprisonment. The appeal was against the severity of the sentence. The court was required to determine whether the sentence was manifestly excessive and whether mitigating factors were adequately considered.

The court considered the nature and severity of the appellant's previous convictions, the circumstances of the offending, and the appropriate sentencing guidelines. The court noted that the appellant had a lengthy history of previous convictions, particularly for violent offending and contravention of protection orders. The injuries sustained by the victim were classified as moderate, justifying the starting point of two years imprisonment. However, the court found that some reduction should have been applied in respect of the mitigating factors relating to the offending and the appellant, such as the appellant's cooperation and efforts to avoid further contact with the victim. The court concluded that a reduction of three months from the starting point was appropriate, resulting in a final sentence of one year and seven months imprisonment.

The appeal was allowed, and the original sentence was quashed. The court substituted a sentence of one year and seven months imprisonment, considering the totality of the circumstances and the appropriate range of sentencing options available to the original sentencing judge.

Orders