Kaihau v Police - [2012] NZHC 191

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-000430 [2012] NZHC 191

PETER RICHARD KAIHAU
Appellant
v

NEW ZEALAND POLICE
Respondent

Hearing: 9 February 2012

Counsel: S M Cowdell for the Appellant
L J Clancy for the Respondent

Judgment: 20 February 2012

JUDGMENT OF DUFFY J

This judgment was delivered by Justice Duffy on 20 February at 4.00 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel: S M Cowdell P O Box 76683 Manukau City Manukau 2241 for the Appellant

Solicitors: Meredith Connell P O Box 2213 (DX CP24063) Shortland Street
Auckland 1140

KAIHAU v POLICE HC AK CRI-2011-404-000430 [20 February 2012]

[1] The appellant, Peter Kaihau, was convicted on charges of injuring with intent to injure, theft and assault with intent to injure. He was sentenced in the District Court to two years, three months’ imprisonment. He now appeals that sentence on the grounds of disparity with the sentence imposed on his co-offender, and that the sentence was manifestly excessive. The appeal is opposed.

Facts

[2] There were two separate incidences of offending. The first group of offences, which involves the offences of theft and assault with intent to injure, occurred on
30 September 2010. The appellant approached the victim, Kurt Honey, and asked to borrow his mobile phone. After Mr Honey gave him the phone, the appellant attempted to swap the SIM card. After a short while, Mr Honey asked for his phone back. The appellant refused, stating that the phone was now his. When asked again, he replied, “it’s not yours, it’s mine now”.

[3] The appellant then walked away with the phone. Mr Honey followed him, repeatedly asking for the phone. Eventually the appellant turned around, grabbed Mr Honey, and told him not to “tell anybody or [the appellant would] burn [Mr Honey’s] house down”. The appellant then punched Mr Honey in the face several times, during which his shirt was ripped, and ran off with the phone.

[4] Though the phone has been recovered, Mr Honey suffered severe swelling and bruising to his left cheek, bruising to his right cheek, a small cut to the chin and scratches on his left forearm. According to his victim impact statement, his cheek was swollen for a week and a half, during which he struggled to eat, and although he has physically recovered, he has struggled to sleep and has ongoing anxiety. Mr Honey was 17 years old at the time of the attack.

[5] The second offending occurred on 4 February 2011, at a time while the appellant was on bail for the 2010 offending. The appellant was drinking with his associates at a marae. It is unclear exactly how the altercation started. The judgment records that the victim, Mr Arnold Kaihau (the appellant’s uncle), accused the appellant of taking his alcohol. According to the caption summary, the appellant and

his co-offender, his cousin, Teuwira Kaihau, confronted Mr Arnold Kaihau while he was sitting in his car and…

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 191
Decision Date: 20 February 2012

CaseChat Overview and Summary

The appellant, Peter Kaihau, appealed his sentence of two years and three months’ imprisonment, imposed by the District Court. The appeal was based on the grounds that the sentence was manifestly excessive and disproportionate compared to the sentence imposed on his co-offender, Teuwira Kaihau. The respondent opposed the appeal. The court was required to determine whether the sentence imposed was procedurally incorrect and if it was manifestly excessive, as well as if there was an unjustified disparity in sentencing between the appellant and his co-offender.

The court found that the sentencing process was procedurally incorrect because the sentencing judge did not give sufficient consideration to the statutory requirement of imposing the least restrictive outcome when sentencing an offender for the first time. The judge also did not make a sufficient reduction for the mitigating factors of the appellant's remorse and willingness to participate in a restorative justice conference. The court found that the uplift of six months’ imprisonment for the appellant's earlier offending was too much and pushed the end sentence outside the range of available sentences. Instead, the court found that an uplift of no more than three months’ imprisonment was all that was required.

The court further found that the sentence imposed was manifestly excessive because the error in the sentencing process resulted in the appellant being on the wrong side of the threshold of eligibility for a sentence of home detention. The court also found that there was an unjustified disparity in sentencing between the appellant and his co-offender, as the disparity would lead to any independent, reasonable observer thinking that something had gone wrong with the administration of justice.

The court quashed the sentence of two years and three months’ imprisonment and directed an updating pre-sentence report on possible non-custodial sentences, as well as a home detention report, to be prepared as soon as possible. The court did not consider bail in the meantime, as further investigation may reveal that a mix of non-custodial sentences is no longer suitable, in which case, the court may have no alternative but to sentence the appellant to a term of imprisonment.

Orders