Nahi v Police - [2012] NZHC 2025

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2012-443-000026 [2012] NZHC 2025

BETWEEN MICHAEL TIKI NAHI Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 15 August 2012

Counsel: J C Hannam for Appellant
S A Law for Respondent

Judgment: 15 August 2012

ORAL JUDGMENT OF COLLINS J

Introduction

[1] Mr Nahi appeals sentences imposed in the District Court at New Plymouth following his pleas of guilty to:

(1) one charge of injuring with intent to injure (s 193 of the Crimes Act

1961); and

(2) one charge of disorderly behaviour (s 4(1)(a) of the Summary

Offences Act 1981).

[2] In the District Court the following sentences were imposed upon Mr Nahi:

(1)One year and nine months’ imprisonment in relation to the charge of injuring with intent to injure; and

NAHI V NEW ZEALAND POLICE HC NWP CRI-2012-443-000026 [15 August 2012]

(2)Conviction and discharge in relation to the disorderly behaviour charge.

The offending

[3] The events leading to the charges can be succinctly summarised:

(1)Mr Nahi was drinking with the sister of his sister-in-law, Ms Fairley, at her home. Mr Nahi became heavily intoxicated.

(2)After an argument with the victim, Mr Nahi pushed her onto a bed and used both hands to choke her and restrict her breathing.

(3)It is unclear how long Mr Nahi held the victim around her neck, however, all the victim could remember was waking up in her sister’s presence. By this stage Mr Nahi had left the premises. The sentencing Judge inferred that the victim lost consciousness for a short time.

(4)Mr Nahi went to his home. When the police arrived he stood on the driveway yelling and swearing in full view of a number of children.

(5)The victim suffered bruising to her neck, a sore throat, a sore right eye and a lump on her head.

Appeals against sentence

[4] This Court’s jurisdiction to hear and determine this appeal is derived from s 121 of the Summary Proceedings Act 1957. In the circumstances of this appeal, the Court may allow the appeal if it considers that the sentence imposed by the District Court was “clearly excessive or inadequate or inappropriate” (“manifestly excessive”).

[5] In R v Monkman, the Court of Appeal explained the term “manifestly excessive” in the following terms:[1]

Whether a sentence can be said to be manifestly excessive turns on the maximum sentence prescribed by law for the offence; the level of sentencing customarily observed with respect to that offence; the place which the conduct in question assumes on the scale of seriousness of offences of that type; and the personal circumstances of the offender (to the extent that they are relevant with respect to the particular kind of offending).

[1] R v Monkman CA445/02, 3 March 2003 at [6].

[6] When considering if the sentence imposed by the District Court was manifestly excessive, the focus is on the correctness of the end result, not the process by which the sentence was reached. As the Court of Appeal recently observed in Ripia…

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 2025
Case: [2012] NZHC 2025
Decision Date: 15 August 2012

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal by Michael Tiki Nahi against sentences imposed by the District Court at New Plymouth. Mr Nahi had pleaded guilty to charges of injuring with intent to injure and disorderly behaviour. The District Court had sentenced him to one year and nine months’ imprisonment for the first charge and a conviction and discharge for the second charge. Mr Nahi appealed on the grounds that the sentence was manifestly excessive.

The court needed to determine whether the sentence imposed by the District Court was manifestly excessive, inadequate or inappropriate. It considered the maximum sentence prescribed by law for the offence, the level of sentencing typically observed for that offence, the seriousness of the conduct in question, and the personal circumstances of the offender. The appeal focused on the correctness of the end result rather than the process by which the sentence was reached.

The District Court Judge had fully set out the facts admitted by Mr Nahi, recognised his age and criminal record, and considered his expression of remorse and attendance at drug and alcohol counselling. The Judge assessed Mr Nahi’s case within band two of the guidelines set out in R v Harris for injuring with intent to injure, and increased the starting point by six months to reflect Mr Nahi’s history of violent offending. The Judge gave Mr Nahi credit for his early guilty pleas, resulting in a sentence of one year nine months. The Judge did not consider home detention viable because Mr Nahi had refused to consent to an assessment for electronic monitoring.

The Court accepted that the starting point adopted by the District Court Judge was too high, and found that a starting point of 16 months would have been more consistent with the authorities. The Court imposed a sentence of 16½ months’ imprisonment, adding six months to the starting point to reflect Mr Nahi’s previous convictions and deducting five and a half months for his early guilty plea. The Court quashed the sentence imposed by the District Court and imposed a sentence of 16½ months’ imprisonment.

Orders