Kunaiti v Police - [2015] NZHC 3342

IN THE HIGH COURT OF NEW ZEALAND

PALMERSTON NORTH REGISTRY

CRI 2015-454-24

[2015] NZHC 3342

BETWEEN
SAMUEL HEMI KUNAITI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 14 December 2015

Counsel:

D J Flinn for Appellant

B D Vanderkolk for Respondent

Judgment:

21 December 2015

JUDGMENT OF CLARK J

I direct that the delivery time of this judgment is 3.30pm on the 21st day of December 2015

KUNAITI v THE QUEEN [2015] NZHC 3342 [21 December 2015]

Introduction

[1] The appellant pleaded guilty to five charges under s 228(b) of the Crimes Act 1961 of dishonestly using a document to obtain pecuniary advantage. The appellant also pleaded guilty to two charges of breaching his release conditions. The District Court Judge sentenced the appellant to a term of 13 months imprisonment.1 The appellant appeals his sentence on the basis that it is manifestly excessive.

[2] The appeal raises issues about the Judge’s uplift for previous criminal convictions and the weight given to the effect on the victim of the theft of his property when the appellant was not charged with that offence.

Factual background

[3] On 26 January 2015 Samuel Kunaiti was released on nine months parole. He was subject to two special conditions: not to contact or associate with any victims of his previous offending and not to enter the Taranaki area during the period of his parole without approval.

Dishonesty offences

[4] On 28 May 2015 Mr Kunaiti twice bought fuel for a car he was driving with a stolen paywave debit card. The value of the two purchases was $60. A paywave card is a bank card which requires no PIN number for purchases up to $80. These events give rise to one of the five dishonesty charges.

[5] On 19 June 2015 the second complainant and his wife arrived in Palmerston North from Tauranga to visit their son. Their car was parked in the driveway on the property. Between 7.30pm on the 19th and 6.30am on the 20th the car was broken into and a number of personal items were stolen including an ASB paywave debit card. At about 6.23am Mr Kunaiti purchased fuel, tobacco and food at the Caltex service station nearby. There were three separate purchases of $40.00, $46.50 and $12.25. This represents the second dishonesty charge. Mr Kunaiti said the debit card was left

1 Police v Kunaiti [2015] NZDC 19704.

at his house by an unknown person, and he used it because he needed fuel to drive his children home.

[6] Between the evening of 16 July and the following morning the third complainant parked his work vehicle in the driveway of his home address. The vehicle was broken into and his ANZ paywave debit and credit cards were taken. At 1.43am on 17 July Mr Kunaiti used the credit card to top up a cell phone with $20 credit. This is the third charge.

[7] The fourth charge relates to a $60 fuel purchase at 1.56am at the Caltex station on Main Street…

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 Kunaiti v Police

Details

AGLC: Kunaiti v Police [2015] NZHC 3342
Case: [2015] NZHC 3342
Decision Date: 21 December 2015

CaseChat Overview and Summary

In the High Court of New Zealand, the appellant, Samuel Hemi Kunaiti, appealed his sentence of 13 months imprisonment, imposed by the District Court Judge, on the basis that it was manifestly excessive. The appellant pleaded guilty to five charges of dishonestly using a document to obtain pecuniary advantage, and two charges of breaching his release conditions. The appeal raised issues regarding the Judge’s uplift for previous criminal convictions and the weight given to the effect on the victim of the theft of his property, although the appellant was not charged with that offence. The court was required to determine whether the sentence was within the appropriate range, considering the circumstances of the offending and the principles of deterrence and protection of the public.

The court found that the starting point of six months imprisonment for the dishonesty charges was appropriate, but the uplift of six months for previous convictions was excessive. The court emphasised caution in this area and highlighted the need to avoid sentencing the appellant again for an offence which he had already expiated. An uplift of two months could not be criticised. Additionally, the court found that the weight given to the effect on the victim was disproportionate to the charges for which the appellant was being sentenced. The court concluded that the sentence was in error as it appeared to punish for culpability that was not actually reflected in the charges.

The court quashed the sentence of 13 months imprisonment and substituted an overall sentence of eight months. The sentence comprises eight months imprisonment for the five dishonesty offences to be served concurrently with the sentence of four months imprisonment for breaching release conditions.

Orders