Kataina-Marii v Police - [2012] NZHC 3497

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2012-412-000055 [2012] NZHC 3497

ANDREW KATAINA-MARII
Appellant
v

NEW ZEALAND POLICE
Respondent

Hearing: 17 December 2012

Counsel: C Savage for Appellant
R Smith for Respondent

Judgment: 17 December 2012

JUDGMENT OF PANCKHURST J

[1] This is an appeal against an effective sentence of nine months imprisonment imposed in relation to a Summary Offences Act assault and two breaches of parole conditions.

[2] The assault occurred on 11 August last. The appellant when intoxicated became involved in an altercation with a security guard working at an inner city bar. He intended to strike the guard, but as Mr Savage aptly put it, it was a swing and a miss. He was then restrained, overcome by numbers, and the incident promptly came to an end.

[3] The breaches of parole preceded the assault by a few days, having occurred in early August and late July. The appellant was released from prison in early April,

KATAINA-MARII V NEW ZEALAND POLICE HC DUN CRI 2012-412-000055 [17 December 2012]

initially required to report to a Probation Officer weekly, but that became a daily reporting requirement when he became a street dweller. He failed to report on occasions.

[4] Mr Kataina-Marii is a tragic figure. He is 36 years of age. He has any number of previous convictions. A considerable number of them for assault and also numerous convictions for what might be termed nuisance offending. He has both an alcohol problem, and also what the reports refer to as mental health issues. I note that psychiatric reports were obtained in the District Court in order to ensure his fitness to stand trial.

[5] The appellant was sentenced on 23 October. In relation to the assault, Judge Crosbie fixed a starting point of two months imprisonment, uplifted that starting point by three months on account of the appellant’s previous history for assaults, to arrive at a sentence of five months for the assault. In relation to the two parole breaches, he determined four months imprisonment was the appropriate starting point, uplifted this by four months, to reach eight months imprisonment. Given that the offending was different in kind and circumstance, he rightly considered that the two periods of imprisonment needed to be accumulated, but made an allowance of four months for the plea of guilty to the assault, and hence, the effective sentence became nine months imprisonment.

[6] The Judge in the course of his remarks, referred to the Appellant as a complex individual, noted the length of his previous record and, as I have, the flavour of his past offending which is very similar to the subject charges. Judge Crosbie also used the phrase

He fell within an awkward category of offenders.

No doubt, a reference to his mental health issues, and alcohol dependence. In support of the appeal, Mr Savage submitted that uplifts of 150% and 100% respectively, were effectively wrong in principle, and hence, that it was necessary for this Court to revisit…

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 3497
Decision Date: 17 December 2012

CaseChat Overview and Summary

The appeal in Kataina-Marii v Police involved the appellant, Andrew Kataina-Marii, contesting the nine-month imprisonment sentence imposed on him by the District Court for an assault under the Summary Offences Act and two breaches of parole conditions. The assault occurred on 11 August, where Kataina-Marii, while intoxicated, attempted to strike a security guard at an inner-city bar but missed. The breaches of parole, which took place in early August and late July, involved Kataina-Marii failing to report to a Probation Officer as required. The appellant, a 36-year-old with a significant history of assault and nuisance offences, was deemed to have mental health issues and an alcohol problem.

The legal issues before the court were the appropriateness of the uplifts applied to the starting points for the assault and the parole breaches. Counsel for the appellant argued that the uplifts were excessive, while counsel for the police suggested that the overall sentence, though the uplifts were high, was still within the appropriate range. The court considered whether to adjust the starting points or maintain them, leading to a discussion on the appropriate sentence considering the plea discount.

The court decided to leave the starting points for the assault and parole breaches intact but increased each by one month to three months and five months, respectively, resulting in an end sentence of eight months. The court then allowed for a reduction of a month and a half for the guilty plea, which resulted in a final sentence of six and a half months imprisonment. The appeal was allowed, and the original sentence was substituted with two and a half months for the assault charge and four months for the breach of parole charges.

The final orders of the court were to substitute the original sentence with two and a half months imprisonment for the assault charge and four months imprisonment for the breach of parole charges.

Orders