Mihinui v Police - [2017] NZHC 820

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2017-409-36 [2017] NZHC 820

BETWEEN
DEAN ANDREW MIHINUI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 26 April 2017

Appearances:

S Teki-Clark and P Johnson for Appellant
E J Henderson for Respondent

Judgment:

28 April 2017

JUDGMENT OF NICHOLAS DAVIDSON J

Background

[1] The appellant pleaded guilty to two charges of theft, one charge of receiving stolen property, and one charge of possession of a knife in a public place.

[2] He was sentenced to 11 months imprisonment by the District Court Judge on

2 February 2017.1

[3] The appellant appeals against that sentence on the grounds that it was manifestly excessive, in terms of a calculation error.

Principles on appeal

[4] Appeals against sentence are brought under s 244 of the Criminal Procedure

Act 2011, and must be determined in accordance with s250 of that Act. Specifically,

1 Police v Mihinui [2017] NZDC 1975.

MIHINUI v NEW ZEALAND POLICE [2017] NZHC 820 [28 April 2017]

this Court may only allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence, and that in the event, a different sentence should be imposed.2

[5] If the sentence under appeal may be properly justified having regard to relevant sentencing principles, it is not the place of this Court to intervene and substitute its own views for those of the sentencing Judge. It is only if the sentence is “manifestly excessive” that the Court should interfere with the exercise of the Judge’s discretion. As Toogood J said (citing Ripia v R3) in Larkin v Ministry of
Development:4

[26] The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.

[6] The focus on most appeals is thus on the end sentence. In Tutakangahau v R,5

the Court of Appeal held that:6

…the focus is on the sentence imposed rather than the process by which the sentence is reached. That encapsulation of the position will no doubt represent the position in the vast majority of cases.

[7] This appeal identified a gloss on that principle, where there is an error which has meant the intended sentence was not imposed.

Appeal out of time

[8] Section 248(2) of the Criminal Procedure Act 2011 requires a notice of appeal against sentence to be filed within 20 working days of the decision.
However, the Court may grant leave to appeal out of time.7

2      Criminal Procedure Act 2011, ss 250(2) and 250(3).
3      Ripia v R [2011] NZCA 101 at [15].
4      Larkin v Ministry of Development [2015] NZHC 680.
5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
6 At [36].
7      Criminal Procedure Act 2011, s 248(4).

[9] The touchstone for granting…

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: [2017] NZHC 820
Decision Date: 28 April 2017

CaseChat Overview and Summary

The case of Mihinui v Police involves the appellant, Dean Andrew Mihinui, who was sentenced to 11 months imprisonment by the District Court Judge for various charges including theft, receiving stolen property, and possession of a knife in a public place. Mihinui appealed against his sentence, arguing that it was manifestly excessive due to a calculation error. The primary legal issue before the court was whether the sentence was manifestly excessive and if an error in calculation warranted an adjustment. The court acknowledged that while the sentence was within the range that could be justified by accepted sentencing principles, the error in calculation was significant enough to warrant intervention. The court found that where there is an unintentional mathematical oversight which has had a negative effect on the appellant’s sentence, it is appropriate for the appeal court to intervene and impose the corrected sentence. The appeal was allowed, and the sentence of 11 months imprisonment was quashed and replaced by a sentence of nine months imprisonment. The standard conditions, together with the two special conditions recommended by the pre-sentence report, which the Judge imposed for six months from the end sentence date, were to remain unchanged.

Orders