Hunuhunu v Police - [2013] NZHC 1746

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2013-463-46 [2013] NZHC 1746

BETWEEN THOMAS HUNUHUNU Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 11 July 2013

Appearances:

A Burns for Appellant
A Hill for Respondent

Judgment:

11 July 2013

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

THOMAS HUNUHUNU v NEW ZEALAND POLICE [2013] NZHC 1746 [11 July 2013]

[1] Mr Hunuhunu pleaded guilty in the District Court to three charges of driving whilst suspended, one charge of resisting arrest, one charge of possession of cannabis simpliciter, two charges of being in possession of cannabis for sale or supply and one charge of dangerous driving.

[2] On 4 June 2013, Judge Thomas sentenced Mr Hunuhunu to an effective term of two years imprisonment.1 He also imposed various periods of disqualification from holding or obtaining a driver’s licence. Mr Hunuhuu now appeals to this Court against the sentence the Judge imposed. He urges this Court to find that the Judge ought to have sentenced him to home detention, coupled with other conditions designed to treat his cannabis addiction.

The facts

[3] The charges arise out of a series of incidents that occurred between

18 January and 4 April 2013. Throughout this period Mr Hunuhunu was subject to an order suspending him from driving. The first charge, that of driving whilst suspended, occurred after Mr Hunuhunu was stopped at a routine traffic stop on
18 January 2013 whilst driving his motor vehicle. He acknowledged that he had lost his licence through accumulating excessive demerit points. He said, however, that he was the most sober person in his vehicle, and had driven for that reason.

[4] Approximately two weeks later, on 2 February 2013, Mr Hunuhunu attended a concert at a stadium in Rotorua. The concert had imposed a ban on patrons wearing gang regalia. Mr Hunuhunu had ignored the ban, and arrived in a Black Power t-shirt. When the authorities sought to question him about this, he was seen to attempt to pass a sunglasses case to an associate. The police endeavoured to take the sunglasses case off Mr Hunuhunu. He then resisted violently, and needed to be subdued and handcuffed. When the police opened the sunglasses case, they found nine tinnies of cannabis inside it. This led to the charges of resisting arrest and being
in possession of cannabis.

1 Police v Hunuhunu DC Rotorua CRI-2013-063-000319, 4 June 2013.

[5] The next charge arose out of an incident four days later, on 6 February 2013. On that date, Mr Hunuhunu was again found driving a motor vehicle whilst his driver’s licence was suspended. He said on this occasion he was driving his partner’s car home to her.

[6] The next series of charges arise out of an incident that occurred on

21 February 2013, just two weeks after Mr Hunuhunu had last been caught driving whilst suspended. On this occasion, Mr Hunuhunu was driving a motor vehicle towards Taupo with his partner. Something about either him or the manner in…

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 1746
Decision Date: 11 July 2013

CaseChat Overview and Summary

Thomas Hunuhunu appealed against a sentence of two years imprisonment imposed on him by Judge Thomas in the Rotorua District Court for various charges including driving while suspended, resisting arrest, possession of cannabis, possession of cannabis for sale or supply, and dangerous driving. Hunuhunu argued that he should have been sentenced to home detention instead of imprisonment to treat his cannabis addiction. The District Court found that a sentence of imprisonment was necessary due to the seriousness of the offences and Hunuhunu's history of disobeying court orders and dealing in cannabis. The High Court agreed that the District Court was justified in imposing a sentence of imprisonment rather than home detention, given the gravity and scope of Hunuhunu's offending and his disregard for court orders. The appeal against the sentence was dismissed.

The legal issues were whether the District Court judge was correct in imposing a sentence of imprisonment rather than home detention. The High Court found that the judge was justified in imposing a sentence of imprisonment given the seriousness of the offences and Hunuhunu's history of disobeying court orders and dealing in cannabis. The power to impose a sentence of home detention is governed by the Sentencing Act 2002 and requires a degree of trust in the offender by the court. However, Hunuhunu's repeated and blatant breaches of court orders and his acknowledged cannabis addiction meant that home detention was not appropriate. The High Court concluded that the District Court judge was entirely justified in imposing a sentence of imprisonment rather than home detention.

Orders