Kiri v Police

Case [2012] NZHC 2099


IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2012-441-0017

CRI-2012-441-0018 [2012] NZHC 2099

BETWEEN  TERIKA WILLIAM CHARLIE KIRI Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         14 August 2012

Appearances: E J Forster for Appellant

N M Graham for Respondent

Judgment:      17 August 2012

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 17 August 2012 at 4 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:           Elvidge & Partners, Crown Solicitor, Napier: nicola.graham@elvidges.co.nz

Counsel:            E J Forster, Napier:  eric.forster@xtra.co.nz

KIRI V POLICE HC NAP CRI-2012-441-0017 [17 August 2012]

Introduction

[1]     The Appellant appeals against a sentence of two years, seven months’ imprisonment imposed by a District Court Judge at Napier in May 2012.1     The sentence was imposed in respect of one charge of aggravated burglary, one of receiving, one of theft and four of failing to appear to answer bail.

[2]      The Appellant  appeals  on  the  ground  that  the  Judge  did  not  reduce  the sentence on account of his youth.  A further contention, namely that the Judge failed to reduce the sentence on account of the Appellant’s remorse, was abandoned at the hearing.   The Crown is opposed to any variation of the sentence imposed by the Judge.

Approach to appeal

[3]      The Appellant has a general right of appeal against sentence.2   Such an appeal is by way of rehearing.3   The powers of the High Court on hearing an appeal against sentence are as follows:4

121     High Court to hear and determine appeal

(3)      In the case of an appeal against sentence, the High Court may—

(a)      Confirm the sentence; or

(b)       If the sentence (either in whole or in part) is one which the Court imposing it had no jurisdiction to impose, or is one which is clearly excessive or inadequate or inappropriate, or if the High Court is satisfied that substantial facts relating to the offence or to the offender's character or personal history were not before the Court imposing sentence, or that those facts were not substantially as placed before or found by that Court, either—

(i)       quash  the  sentence  and  either  pass  such  other sentence  warranted  in  law  (whether  more  or  less

1 R v Kiri DC Napier CRI-2012-020-0604, 17 May 2012.

2 Summary Proceedings Act 1957, s 115.
3Ibid, s 119.
4 Ibid, s 121.

severe) in substitution therefor as the High Court thinks ought to have been passed or deal with the offender in any other way that the Court imposing sentence   could   have   dealt   with   him   on   the conviction; or

(ii)      quash  any  invalid  part  of  the  sentence  that  is severable from the residue; or

(iii)     vary, within the limits warranted in law, the sentence or any part of it or any condition imposed in it.

[4]      Accordingly, the High Court may vary a sentence only if it is shown to be clearly excessive or inadequate or inappropriate, or to have been imposed without jurisdiction or in the absence of substantial facts.  The High Court…

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Kiri v Police [2012] NZHC 2099
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[2012] NZHC 2099
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CaseChat Overview and Summary

In the High Court of New Zealand, the case of Kiri v Police involved the Appellant, Terika William Charlie Kiri, who was appealing against a sentence imposed by a District Court Judge at Napier. The sentence was two years, seven months’ imprisonment for one charge of aggravated burglary, one of receiving, one of theft, and four of failing to appear to answer bail. The Appellant's appeal was grounded on the argument that the Judge did not reduce the sentence due to his youth, a contention that was ultimately accepted by the court. The Crown opposed any variation of the sentence.

The court considered the Appellant's right to appeal against the sentence, and the powers of the High Court on such an appeal. The court found that the High Court could vary a sentence if it was shown to be clearly excessive or inadequate or inappropriate, or if it was imposed without jurisdiction or in the absence of substantial facts. The court then examined the facts of the case, including the details of the aggravated burglary, the receiving charge, the theft charge, and the Appellant's failure to appear in court. The court heard submissions from both the Appellant and the Crown, focusing on the issue of whether the Judge failed to take into account the Appellant's age as a mitigating factor.

The court found that the Judge was aware of the Appellant's youth and had considered his lack of previous serious convictions. However, the Judge did not reduce the sentence on account of the Appellant's youth, although he did give substantial discounts for the Appellant's guilty plea. The court concluded that a reduction in sentence on account of the Appellant's age was appropriate, and allowed the appeal in part. The sentences imposed by the Judge were varied, reducing the sentence for aggravated burglary to two years’ imprisonment and the sentence for receiving to two months’ imprisonment. In all other respects, the Judge's decision was confirmed, resulting in the Appellant's total end sentence being two years, three months’ imprisonment.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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