Kaneri v Police - [2017] NZHC 2065

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2017-404-000156 [2017] NZHC 2065

BETWEEN
ALLAN KANERI

Appellant

AND

NEW ZEALAND POLICE Respondenet

Hearing: 28 August 2017

Appearances:

M A Edgar for Appellant
M J Mortimer for Respondent

Judgment:

28 August 2017

ORAL JUDGMENT OF PALMER J

Counsel/Solicitors:
M A Edgar, Barrister, Auckland
Meredith Connell, Auckland

KANERI v NEW ZEALAND POLICE [2017] NZHC 2065 [28 August 2017]

Facts

[1] Mr Allan Kaneri aged 33, was convicted of:

(a) burglary, with a maximum sentence of 10 years’ imprisonment; (b) assault, with a maximum penalty of 12 months’ imprisonment;
(c) possession of methamphetamine, with a maximum penalty of six months’ imprisonment or a $1,000 fine; and

(d)breaching his release conditions under the Parole Act 2002, with a maximum penalty of one year imprisonment or a $2,000 fine

[2] The offences were committed on Tuesday 8 November 2016. Around

11.30 pm Mr Kaneri entered the Spicy House Restaurant on Dominion Road in Auckland through the rear door, which is not open to the public. He had no authority to do so. He climbed a ladder to an upper floor office area, opened a tin and took
$160 cash. Climbing down the ladder Mr Kaneri was confronted by a worker at Spicy House. He punched the worker in the face with a closed fist, leaving him dazed, in an attempt to flee. Other staff overheard the commotion and helped detain Mr Kaneri until Police arrived.

[3] Upon being searched pursuant to arrest Police found approximately 0.5 of a gram of methamphetamine in Mr Kaneri’s pocket. Mr Kaneri has previous convictions for drug-related offences, dishonesty, driving and violence-related charges and multiple charges of failing to answer bail and breaching community based sentences. He had been released from prison just two weeks before this offending.

[4] Mr Kaneri was originally charged with aggravated assault rather than common assault, which carries a maximum of three years’ imprisonment rather than one year. That charge was reduced as a result of a plea negotiation. Mr Kaneri pleaded guilty two days after being apprehended.

Victim

[5] As a result of the assault, the victim suffered swelling to his right eyebrow area, an open cut to his eyebrow that was bleeding, and bleeding inside his eye requiring hospitalisation. In his Victim Impact Statement, the victim notes he now fears for his safety and the safety of the others that work at the restaurant, if Mr Kaneri was to return.

Corrections’ Report

[6] The Department of Corrections assesses Mr Kaneri as being at high risk of re-offending, including medium risk of harm to others, given his current and previous violent offending. It recommended a sentence of imprisonment.

District Court decision

[7] On 5 April 2017 Judge Collins in the District Court sentenced Mr Kaneri to two years, three months imprisonment.1 Judge Collins observed it was likely that this offending was driven by Mr Kaneri’s need to fund his methamphetamine addiction.

[8] For the burglary charge, the Judge took an 18 month starting point.…

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 Kaneri v Police

Details

AGLC: Kaneri v Police [2017] NZHC 2065
Case: [2017] NZHC 2065
Decision Date: 28 August 2017

CaseChat Overview and Summary

In this case, Allan Kaneri appeals against his conviction and sentence, which was handed down by Judge Collins in the District Court on 5 April 2017. Mr Kaneri was found guilty of burglary, assault, possession of methamphetamine, and breaching his release conditions. He was sentenced to two years and three months’ imprisonment. The High Court was required to determine whether the sentence imposed by the District Court was appropriate, and whether any error warranted a different sentence. In considering the appropriate sentence, the Court considered the purposes of sentencing and the principles of sentencing, which include holding Mr Kaneri accountable for the harm done to the victims and the community, promoting in him a sense of responsibility for, and acknowledgement of, that harm, denouncing his conduct and deterring him and others from committing such offences, protecting the community from Mr Kaneri, and assisting in his rehabilitation and reintegration into the community.

The Court found that while the uplift for the assault conviction may have been excessive, the overall sentence was within the range that can properly be justified by accepted sentencing principles. The Court took into consideration the seriousness of Mr Kaneri’s offending, which involved the invasion of commercial premises, burglary, assault when confronted and possession of Class A drugs. The Court also considered the overall starting point of two and a half years for the multiple charges, which was within the acceptable range of similar offences. The Court also noted that the discount for the guilty plea was generous and that acceptance of a plea to a lesser charge can be a concession in itself. The Court held that while the specific amount of the uplift for the assault charge may have been too heavy, it did not consider a different sentence should be imposed. The Court dismissed the appeal.

Orders