Hunter v Police - [2012] NZHC 107

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2011-463-000092 [2012] NZHC 107

ELLIOTT SHANE HUNTER
Appellant
v

NEW ZEALAND POLICE
Respondent

Hearing: 29 February 2012

Counsel: S J Clarkson for the Appellant
N Tahana for the Respondent

Judgment: 29 February 2012

(ORAL) JUDGMENT OF DUFFY J

Counsel: S J Clarkson P O Box 1737 Taupo for the Appellant

Solicitors: Gordon Pilditch P O Box 740 Rotorua 3040 for the Respondent

HUNTER v POLICE HC ROT CRI-2011-463-000092 [29 February 2012]

[1] The appellant, Mr Hunter, appeals against sentences totalling 16 months’

imprisonment. He was sentenced, having pleaded guilty to charges of:

(i) Wilful damage under s 11(1) of the Summary Offences Act

1981;

(ii) Male assaults female under s 194B of the Crimes Act 1961; (iii) Performing a threatening act under s 307 of the Crimes Act;
(iv) Wilful trespass under ss 3, 4 and 11 of the Trespass Act 1980;

and

(v) Two breaches of conditions of supervision under s 70(b) of the

Sentencing Act 2002.

Facts

[2] Regarding the first three charges, the facts are as follows. On 22 September

2011 at 10.00 pm, Mr Hunter arrived home grossly intoxicated. His partner was asleep in the bedroom. Mr Hunter entered the bedroom and began to rant that he was a Taupo gangster and he berated the victim for the absence of food in the house. He poured beer on the carpet. He punched holes in the doors and walls of the house, while yelling at the victim. He then spat in the victim’s face and wrote “ES", which identifies the East Side gang, on the walls numerous times. The victim ran from the address to her mother’s house and then telephoned the Police.

[3] Regarding the wilful trespass charge, on 9 August 2011, Mr Hunter was served with a trespass notice by the Police requiring him to stay off the property at Rawhiti Street, Taupo, which is occupied by the victim. At approximately 12.13 am on 3 September 2011, Mr Hunter was on Rawhiti Street, Taupo. He entered the property. He said he wanted to see his partner, who came outside and left with him. These facts constitute the wilful trespass charge. Mr Hunter’s explanation to the Police was that he believed the trespass notice had been lifted.

[4] There are also breaches of conditions of supervision.

[5] The pre-sentence report shows that Mr Hunter is 27 years old, has two children, and he has been violent toward two of his partners. He was employed in the forestry industry. He has significant issues with alcohol and drugs. He is said to be affiliated with the Mongrel Mob gang, although he has denied gang involvement. He has a gang tattoo and scrawled gang identifiers on the walls of his home on the night of the most recent offending.

[6] In regards to the male assaults female charge, Mr Hunter minimised his offending, stating that, unlike other prisoners sentenced for the same offence, all he did was to…

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 Hunter v Police

Details

AGLC: Hunter v Police [2012] NZHC 107
Case: [2012] NZHC 107
Decision Date: 29 February 2012

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Hunter v Police involved Mr. Hunter appealing against sentences totalling 16 months' imprisonment. He was convicted of wilful damage, male assaults female, performing a threatening act, wilful trespass, and breaches of conditions of supervision. The District Court Judge had placed significant emphasis on Mr. Hunter's history of violence towards women, his drug and alcohol problems, and his extensive criminal history, which led to the imposition of a 16-month imprisonment sentence. Mr. Hunter argued on appeal that the starting point of eight months' imprisonment was too high, the uplift of 12 months' imprisonment was excessive, and his early guilty plea did not attract sufficient credit.

The court found that the starting point of eight months' imprisonment was appropriate, but the uplift of 12 months' imprisonment was excessive. Instead, the court considered that a six-month uplift was appropriate to reflect Mr. Hunter's criminal history. Furthermore, the court recognised that Mr. Hunter's early guilty plea should have entitled him to a full 25 per cent discount. The effect of the discount brought the sentence of imprisonment down to 12 months. The court granted the appeal, quashed the sentence of 16 months' imprisonment, and imposed a sentence of 12 months' imprisonment on the charge of male assaults female and performing a threatening act, to be served concurrently. The wilful damage charge resulted in a two-month imprisonment sentence, to be served concurrently with the other charges. The remaining charges of wilful trespass and breach of a supervision order resulted in a two-month imprisonment sentence, also to be served concurrently with the other sentences.

In conclusion, the court granted Mr. Hunter's appeal, reducing his sentence to 12 months' imprisonment, taking into account his early guilty plea and the excessive uplift of 12 months' imprisonment. The court also upheld the reparation order made by the District Court.

Orders