Kiri v Police - [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…

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 Kiri v Police

Details

AGLC: Kiri v Police [2012] NZHC 2099
Case: [2012] NZHC 2099
Decision Date: 17 August 2012

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