Lopeti v Police - [2015] NZHC 3209

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2015-488-000047 [2015] NZHC 3209

BETWEEN
FRANKIE LOPETI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 14 December 2015

Appearances:

Matthew Littlefair for the Appellant
Michael Smith for the Respondent

Judgment:

15 December 2015

JUDGMENT OF MOORE J [Appeal against sentence]

This judgment was delivered by me on 15 December 2015 at 11:30 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

LOPETI v NEW ZEALAND POLICE [2015] NZHC 3209 [15 December 2015]

Introduction

[1] Frankie Lopeti pleaded guilty to one charge of assault with intent to injure.

He was sentenced to four months’ community detention.

[2] He now appeals that sentence. He says that the sentence is inconsistent with other sentences imposed in the District Court for similar offending. He says the starting point adopted by the Judge was too high and, given this was his first conviction for violence, was attended by an early plea, an unequivocal expression of remorse and because he had already spent some 19 days in custody after having been denied bail, a considerably lower sentence was justified.

[3] He seeks a discharge with conviction or otherwise an order that he be sentenced if called upon within the next 12 months.

Relevant facts

[4] On the evening of 17 May 2015 Mr Lopeti was at the Pipi Patch Bar in Paihia. The victim was also at the bar. As the victim was leaving the premises there was a brief exchange of words between the victim and Mr Lopeti. Mr Lopeti punched the victim once in the head. As the victim fell he tried to hit him several more times but these punches failed to connect. As a result, the victim suffered bruising and swelling to the side of his face.

District Court sentencing

[5] Mr Lopeti pleaded guilty to assault with intent to injure on the basis that the Crown would withdraw a considerably more serious charge of assault with intent to cause grievous bodily harm. Mr Littlefair, for Mr Lopeti, advised that the more serious charge related to an entirely different incident which occurred on the same night involving a different complainant. The sentencing Judge, while mentioning this fact, plainly did not take it into account in sentencing. However, it was this more serious charge which resulted in Mr Lopeti being denied bail initially and following his release on bail with restrictive conditions. Once this charge was withdrawn Mr Lopeti pleaded guilty to the present charge.

[6] The Judge considered that Nuku v R was a relevant authority, although it did not directly apply, and that the various aggravating and mitigating factors listed in that authority had application to the present facts.1 His Honour concluded that the present assault would fall within band 1 of Nuku.2 He also considered the Court of Appeal’s decision in Tamihana v R which involved the same charge; assault with intent to injure.3

[7] In Tamihana the defendant punched the victim and, once he was…

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: [2015] NZHC 3209
Decision Date: 15 December 2015

CaseChat Overview and Summary

Frankie Lopeti appealed his four-month community detention sentence for assault with intent to injure. He contended that the sentence was excessive and inconsistent with other sentences for similar offenses. He sought a discharge with conviction or a new sentence within 12 months. The court was required to determine whether the sentence was manifestly excessive and whether the appeal should be allowed.

The court assessed the appeal under the Criminal Procedure Act 2011, which requires the appeal to be allowed if there is an error in the sentence and a different sentence should be imposed. The court considered the starting point of the sentence, which was within band 1 of the relevant authority, and the various deductions made by the sentencing judge. The court held that the starting point was correct but agreed that insufficient credit was given for the time Lopeti spent in custody and on restrictive bail. The court considered that four months' community detention was generally appropriate but reduced the sentence to three months' community detention to give sufficient regard to the time Lopeti spent in custody and on restrictive bail.

The appeal was allowed, and a sentence of three months' community detention was substituted. The conditions of the sentence remained the same as those imposed by the sentencing judge.

Orders