Ikahihifo v Police - [2012] NZHC 3553

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2012-419-000067 [2012[ NZHC 3553

GARFIELD IKAHIHIFO

v

NEW ZEALAND POLICE

Hearing: 18 December 2012

Counsel: L Walkington as Agent for P J Morgan QC for the Prisoner
R B Annandale for the Crown

Judgment: 18 December 2012

[ORAL] JUDGMENT OF WYLIE J

Distribution:
L Walkington: lynwalkington@xtra.co.nz
R B Annandale: rba@ almaodouch.co.nz

IKAHIHIFO V POLICE HC HAM CRI 2012-419-000067 [18 December 2012]

[1] Having pleaded guilty to one charge of burglary, on 30 July 2012, the appellant, Mr Ikahihifo, was sentenced by Judge Ruth in the District Court at Hamilton to 21 months’ imprisonment in respect of one charge of burglary committed at the Te Kuiti New World Supermarket on 6 March 2012.

[2] Mr Ikahihifo appeals against the sentence on the ground that it is manifestly excessive.

[3] The notice of appeal also asserted that a four month uplift applied by Judge Ruth was excessive, that a reparation order should not have been made and that special release conditions should not have been imposed. Further, it requested that this Court should remit outstanding fines at the same time as determining the appeal. Ms Walkington, appearing for the appellant, has confirmed that these other aspects in the notice of appeal are not pursued. The only matter at issue is whether or not the sentence of imprisonment imposed by Judge Ruth was manifestly excessive.

Background

[4] On 6 March 2012, at about 4.00 am, Mr Ikahihifo and an associate entered the carpark of the New World Supermarket on Te Kumi Road, in Te Kuiti. They had driven from Auckland. They got out of the vehicle and, using a jemmy bar, forced open the front doors of the supermarket, knocking the entire door out of its track and breaking the glass. They entered the supermarket and made their way to the Lotto counter. They also forced open various cabinets containing cigarettes, tobacco and other items. They had brought a woolsack with them from Auckland, and they filled the woolsack with cigarettes and tobacco valued at over $20,000, and put the woolsack in the back of their vehicle. They then left the scene.

[5] Following a report to police of suspicious activity, Mr Ikahihifo and his associate were stopped in their vehicle between Otorohanga and Pirongia. Mr Ikahihifo was driving. They were arrested. The supermarket goods were recovered in their totality. As I have noted above, Mr Ikahihifo pleaded guilty to the charge of burglary.

[6] Mr Ikahihifo came before the Court for sentence on 30 July 2012. Judge Ruth noted the Crown submissions that the burglary was a planned operation. He noted that disguises were found in the possession of Mr Ikahihifo and his associate. He noted the time of day, the fact that Mr Ikahihifo and his associate drove from Auckland to Te Kuiti to commit the burglary, and that they targeted specific items in the supermarket. He noted that the appellant appeared to think of the offending as a way of…

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: [2012] NZHC 3553
Decision Date: 18 December 2012

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal by Mr Ikahihifo against his sentence for burglary, imposed by Judge Ruth in the District Court. The appellant argued that the sentence was manifestly excessive. The Court was required to determine whether the sentence imposed by the District Court was within the range that could properly be justified by accepted sentencing principles. The Court found that the starting point adopted by Judge Ruth was too high and that the appropriate starting point should have been 20 months' imprisonment rather than two years. The Court also found that the discount applied by Judge Ruth for the guilty plea was appropriate. The Court substituted a sentence of 18 months' imprisonment and allowed the appeal.

The Court ordered that the sentence imposed by Judge Ruth be substituted with a sentence of 18 months' imprisonment. In all other respects, the sentence imposed by Judge Ruth was upheld.

Orders