Kingi v Police - [2020] NZHC 1896

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2020-425-000017

[2020] NZHC 1896

BETWEEN
NGAPUAHI HURIWAKA TE PAEA KINGI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 14 July 2020

Appearances:

R J Little for the Appellant

M B Brownlie for the Respondent

Judgment:

31 July 2020

JUDGMENT OF NATION J

Introduction

[1] On this appeal, Mr Kingi’s counsel argued Mr Kingi should not have been sentenced to imprisonment. In doing so, he referred to the report from He Waka Roimata written by Uepū Hāpai i te Ora – the safe and effective justice advisory group. This report noted the concerning statistics regarding the rate of imprisonment for Māori. While one in 12 New Zealand males have been imprisoned by age 35, for Māori males this figure is one in five.

[2] This appeal is a paradigm case demonstrating the difficulties the courts face in endeavouring to keep such an offender out of prison.

[3] To support the appeal, a cultural report was presented by the defence. It referred to the way Mr Kingi had deep mātauranga (knowledge) of Te Ao Māori (the Māori World), a strong connection to Māori culture and was fluent in Te Reo. Mr Kingi was motivated to engage in programmes with a Māori focus and there was other

KINGI v POLICE [2020] NZHC 1896 [31 July 2020]

information to suggest Mr Kingi could benefit from a non-violence programme with a Kaupapa Māori focus.

[4] It appears Judges in the District Court have recognised the need for Mr Kingi to engage in rehabilitative programmes. However, they were also conscious that Mr Kingi has been violent to people he lived with and so needed to be somewhere safe while engaged in such a programme. Mr Kingi has thus received a number of relatively short sentences of imprisonment with leave to apply for home detention if an appropriate address became available. No such applications have been made.

[5] Although the s 27 cultural report identified ways Mr Kingi might benefit from a Māori focused rehabilitation programme, it provided no information as to processes that are available to resolve issues relating to his offending or how support from his whānau or community might be available to help prevent further offending. These are matters which the Sentencing Act expressly says may be addressed in a s 27 report.1
[6] On this appeal, as the Judge in the District Court likely recognised, there could have been benefit to Mr Kingi, the victim of his offending and the community generally if he could be given the opportunity and challenge of being in the community while engaged in such a programme. The information before the Court however was that, if in the community, Mr Kingi would need to be in a pro-social environment where there would be minimal risk of him doing harm to others through further violent offending.

[7] Two potential family addresses were identified for consideration. Information from Corrections indicates that at one such…

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 Kingi v Police

Details

AGLC: Kingi v Police [2020] NZHC 1896
Case: [2020] NZHC 1896
Decision Date: 31 July 2020

CaseChat Overview and Summary

In Kingi v Police, the Court considered an appeal against sentence by Ngapuahi Huriwaka Te Pae Kingi, who had pleaded guilty to breaching a protection order and breaching the conditions of his release. The District Court had sentenced Mr Kingi to 11 months’ imprisonment with leave to apply for home detention if an appropriate address became available. On appeal, Mr Kingi argued that a sentence of imprisonment was inappropriate and that a sentence of intensive supervision should have been imposed instead. The appeal was dismissed.

The court considered the principles of denunciation and deterrence in sentencing for breaches of a protection order. It was noted that the purpose of a penalty is to convey a clear message that family violence is unacceptable and tough penalties will be applied. Once made, protection orders must be upheld by the Court and dealt with firmly otherwise they will become meaningless. The court found that the sentence of imprisonment imposed on Mr Kingi was not manifestly excessive.

The court also considered whether a sentence of imprisonment was the appropriate sentence in Mr Kingi’s circumstances. It was noted that the court must have regard to the desirability of keeping an offender in the community as far as that is practicable and consonant with the community's safety. The court found that, in the particular circumstances of this case, for the protection of the public and for the victim, the least restrictive sentence the Court could potentially have imposed was one of intensive supervision, subject to conditions. However, the court was not satisfied that the sentence imposed in the District Court was manifestly excessive or that a different sentence should have been imposed.

In summary, the appeal against sentence was dismissed, and Mr Kingi will remain subject to the sentence of imprisonment with leave to apply for home detention if he can come up with an address which the Department of Corrections can approve for a sentence of home detention. On his release from prison, he will remain subject to special conditions which should ensure he can participate in suitable rehabilitation programmes.

Orders