Iwikau v Police - [2012] NZHC 2027

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2012-443-000030 [2012] NZHC 2027

BETWEEN COLE ANDREW OWEN IWIKAU Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 15 August 2012

Counsel: J C Hannam for Appellant
S A Law for Respondent

Judgment: 15 August 2012

ORAL JUDGMENT OF COLLINS J

Introduction

[1] On 1 June 2012 Mr Iwikau pleaded guilty in the Huntly District Court to one charge of burglary (s 231 of the Crimes Act 1961). He was sentenced in the Hawera District Court to one year and nine months’ imprisonment in relation to that charge on 26 June 2012.

[2] Also on 26 June 2012 Mr Iwikau pleaded guilty to driving while disqualified

(s 32(1)(a) and (4) of the Land Transport Act 1998) and a charge of theft (ss 219 and

223(d) of the Crimes Act 1961). A concurrent sentence of nine months’ imprisonment was imposed in relation to the driving while disqualified offence. Mr Iwikau was convicted and discharged in relation to the theft matter.

[3] Mr Iwikau appeals against the sentences of imprisonment that were imposed by the District Court at Hawera on 26 June 2012. He submits that those sentences
were manifestly excessive.

IWIKAU V NEW ZEALAND POLICE HC NWP CRI-2012-443-000030 [15 August 2012]

The offending

Burglary

[4] At about 10.40pm on 7 June 2011, Mr Iwikau broke into the Te Kauwhata Sports Club. He entered the Sports Club by smashing a window and unlatching the window stay. He then entered through the window space. Once inside he stacked a number of tables on top of each other. He climbed to the top of those tables and removed a projector from the ceiling. He then left the premises. The equipment which Mr Iwikau took was worth approximately $2,500. The equipment has not been recovered. Mr Iwikau was apprehended after his fingerprints were detected at the scene.

Driving whilst disqualified

[5] On 11 February 2012 Mr Iwikau was seen driving into a petrol station in Stratford. He was apprehended and charged with driving whilst disqualified. Mr Iwikau had previously been convicted of driving whilst disqualified:

(1) on two occasions on 14 June 2005; (2) on 8 February 2006;
(3) on 12 October 2010; and

(4) on 8 November 2011.

Previous convictions

[6] In addition to his previous five driving whilst disqualified convictions, Mr Iwikau has a total of 27 convictions for offences such as shoplifting, driving with excess breath alcohol, taking motor vehicles, assault, cultivating cannabis and breaching community work conditions. He was also convicted of burglary:

(1) on 10 January 2005 for which he was sentenced to 200 hours’

community work; and

(2) on 20 September 2005, when he was sentenced to 160 hours’

community work and given a final warning.

Pre-sentence report

[7] The pre-sentence report recommended the imposition of a sentence of imprisonment together with an order for reparation.

District Court sentencing decision

[8] In determining a starting point for the burglary offence, the District Court Judge assessed that Mr Iwikau’s offending fell within category…

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 2027
Decision Date: 15 August 2012

CaseChat Overview and Summary

Cole Andrew Owen Iwikau appeals against the sentences of imprisonment imposed by the District Court for burglary and driving while disqualified. Iwikau submits that the sentences were manifestly excessive. The court is required to decide whether the sentences imposed by the District Court were manifestly excessive. The court considered the maximum sentence prescribed by law for the offences, the level of sentencing customarily observed with respect to that offence, the place which the conduct in question assumes on the scale of seriousness of offences of that type, and the personal circumstances of the offender. The appeal is allowed. The prison sentences imposed by the District Court are replaced with a sentence of 13 and a half months’ imprisonment for the burglary conviction, and three months’ imprisonment for the driving whilst disqualified offence. Both sentences are to be served concurrently. The 12 month period of disqualification imposed by the District Court remains in force, with the period of disqualification commencing from the date that Iwikau is released from prison.

Orders