Nahi v Police - [2012] NZHC 2576

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000295 [2012] NZHC 2576

BETWEEN HEMI JAMES NAHI Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 10 September 2012

Appearances: G H Vear for Appellant
R K Thomson for Respondent

Judgment: 4 October 2012

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 4 October 2012 at 4:30 pm
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………

Solicitors: Public Defence Service, P O Box 21448, Henderson, Waitakere 0650
Fax: (09) 838-9983 – G Vear
Meredith Connell, P O Box 2213, Auckland 1141
Fax: (09) 336-7629 – R Thomson

NAHI V NZ POLICE HC AK CRI-2012-404-000295 [4 October 2012]

Introduction

[1] The appellant, Hemi James Nahi, pleaded guilty to the following charges and was sentenced on 14 August 2012 in the District Court at Waitakere:

Unlawfully interfering with a motor vehicle on 2 November 2010 pursuant to

s 226(2) of the Crimes Act 1961;

Possession of cannabis on 8 November 2010 pursuant to s 7(1)(a) of the

Misuse of Drugs Act 1975;

Excess breath alcohol (third and subsequent) on 12 November 2010 pursuant

to s 56(1) of the Land Transport Act 1998;

Breach of intensive supervision on 16 June 2011 pursuant to s 70A(b) of the

Sentencing Act 2002;

Receiving (under $500) on 28 June 2011 pursuant to ss 246 and 247(c) of the

Crimes Act;

Failure to answer District Court bail on 21 February 2012 pursuant to s 37(a)

of the Bail Act 2000.

[2] Although the Judge identified separate starting points and indicated an intention to impose cumulative sentences, the approach she ultimately took resulted in concurrent sentences of nine-and-a-half months imprisonment being imposed on each charge:

[6] So for the offence of unlawfully interfering with a motor vehicle, that is three months’ imprisonment. Because there are several offences at several times, I am going to cumulate or add together sentences for each offence, making sure the total prison sentence is not too high. For the possession of the cannabis plant material, one month imprisonment. For your fourth drink driving offence, six months’ imprisonment. For your breach of intensive supervision, two months’ imprisonment. For receiving the brass portholes, one month imprisonment. For your breach of bail, one month imprisonment; that leads to an end sentence of 14 months’ imprisonment.

[7] I am going to deduct just over 10 per cent of your mental health issues and other health issues bringing me down to 12 and a half months’ imprisonment. Even if there is not a great deal of evidence about that, I am giving you the benefit of the doubt and the benefit of the discount.

[8] From that I deduct just under 25 percent for your guilty pleas because despite the delay for some of your pleas you have pleaded guilty for all. That is three months. That brings me down to nine and a half months’ imprisonment, which is the term that I impose.

[3] Mr Nahi appeals the sentences on…

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 Nahi v Police

Details

AGLC: Nahi v Police [2012] NZHC 2576
Case: [2012] NZHC 2576
Decision Date: 4 October 2012

CaseChat Overview and Summary

Hemi James Nahi appeals against his sentences for various charges, arguing that they are manifestly excessive. The nature of the appeal involves the sentencing process and the application of legal principles to determine the appropriate punishment for each offence. The High Court of New Zealand reviews the sentences and the arguments presented by both parties. The court considers the legality and proportionality of the sentences, as well as the procedural aspects of the fines remission.

The legal issues in this case revolve around the sentencing approach taken by the Judge and whether it was appropriate. The primary concerns are whether the Judge correctly imposed cumulative sentences, if the starting point for the excess breath alcohol charge was too high, and whether the Judge complied with the relevant sections of the Sentencing Act. Additionally, the court examines whether the Judge had jurisdiction to remit the outstanding fines.

The court finds that while the Judge intended to impose cumulative sentences, she did not ultimately do so, resulting in some sentences exceeding the maximum penalties. The starting point for the excess breath alcohol charge, though at the upper end of the range, was deemed appropriate given the offender's history. The court also concludes that the Judge did not have jurisdiction to remit the outstanding fines, as the statutory procedure was not followed.

The appeal is allowed, and the sentences are quashed and substituted with cumulative sentences as follows: two months for unlawful interference, three weeks for possession of cannabis, three months for excess breath alcohol, five weeks for breach of supervision, three weeks for receiving and breach of bail, and one month for wilful damage. The cross-appeal is also allowed, reinstating the outstanding fines of $1,606.27.

Orders