Kihi v Police - [2017] NZHC 2883

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2017-419-64 [2017] NZHC 2883

BETWEEN
ADAM POUWHERO JOHN KIHI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 17 November 2017

Counsel:

A J Hamblett for Appellant
M Dillon for Respondent

Judgment:

23 November 2017

JUDGMENT OF WHATA J

This judgment was delivered by me on 23 November 2017 at 12.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors: Crown Solicitor, Hamilton

KIHI v POLICE [2017] NZHC 2883 [23 November 2017]

[1] Mr Kihi pleaded guilty to charges of breach of protection order,1 assault of a child,2 wilful damage,3 male assaults female4 and assault with a weapon.5 He was sentenced to 18 months’ imprisonment.6 He now appeals against that sentence.

Background

[2] Mr Kihi was at home with his partner of 20 years and one of their sons. He became angry with his partner. In the process of trying to strike her, he hit his son. Matters escalated. He punched his partner in the head and then struck her five times with a hair straightener. She suffered a cut to her head and some numbness. Mr Kihi has six previous convictions for violence and four for breaching a protection order. The previous conviction for breach of protection order and domestic violence in 2016 attracted a sentence of three months’ imprisonment.

The sentence

[3] Judge P R Connell summarises the facts of the offending and refers to

Mr Kihi’s history of offending. In then formulating sentence, the Judge:

(a) Examines whether Mr Kihi could be suitable to take part in the Hamilton Abuse Intervention Programme (HAIP) but notes there were difficulties in identifying a suitable address.

(b)Refers to expressions of concern raised by the Probation Service, reflecting the opinions expressed by Oranga Tamariki about the children and how they may be exposed to violence if Mr Kihi is given a non-custodial sentence of home detention.

(c) Concludes there must be a term of imprisonment, though noting Mr
Kihi’s partner did not want him to go to jail and that it is preferable he be given the opportunity to take part in HAIP.

1      Domestic Violence Act 1995, s 49.
2      Crimes Act 1961, s 194(a).
3      Summary Offences Act 1981, s 11(1)(a).
4      Crimes Act 1961, s 194(b).
5      Section 202C.
6      Police v Kihi [2017] NZDC 18269.

(d)Acknowledges the victim’s expression that she still loves Mr Kihi and that they are in a good relationship.

[4] On the lead charge, assault with a weapon (the hair straightener), the Judge adopts a starting point of 18 months. He then applies an uplift for the other offences, of nine months, resulting in a global starting point of 27 months. Credit is given for guilty plea, though Judge Connell notes it was at a late stage. He, nevertheless, applies a discount of nine months, reducing the sentence to 18 months’ imprisonment on the lead charge. He then imposes concurrent sentences 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: [2017] NZHC 2883
Decision Date: 23 November 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Adam Pouwhenua John Kihi appealed against a sentence imposed by the District Court. Mr Kihi had pleaded guilty to charges of breaching a protection order, assault of a child, wilful damage, male assaults female, and assault with a weapon. The District Court Judge sentenced him to 18 months' imprisonment. The legal issues before the High Court were whether the sentence was manifestly excessive, whether the court should have adjourned sentencing to allow for another home detention address to be assessed, and whether leave should be granted for Mr Kihi to apply for home detention if a suitable address is found. The High Court found that while the starting point of 27 months was comparatively high, it was not out of range. The failure to expressly consider remorse was an error, but the Judge had considered an alternative approach involving the Hamilton Abuse Intervention Programme. The court found that the requirement to identify the least restrictive sentencing option was not properly exercised, and granted leave for Mr Kihi to apply for home detention if an appropriate address is found. The appeal was allowed in part.

The final orders of the Court were that leave is granted to Mr Kihi, pursuant to s 80I, to apply for cancellation of his sentence of imprisonment and substitution of a sentence of home detention, if an appropriate address is found. In the event an application is made, a s 27 report should be provided by counsel for Mr Kihi addressing the matters set out in that section.

Orders