Naiker v The Queen - [2014] NZCA 20

IN THE COURT OF APPEAL OF NEW ZEALAND

CA747/2013
[2014] NZCA 20

BETWEEN	MANISH NAIKER Appellant
AND	THE QUEEN Respondent

Hearing:	10 February 2014
Court:	Harrison, Rodney Hansen and Dobson JJ
Counsel:	A J Holland and L Johnson for Appellant G H Vear for Respondent
Judgment:	20 February 2014 at 10.30 am

JUDGMENT OF THE COURT

A The appeal against sentence is allowed.
BThe sentence of five months’ home detention is substituted with one of three months’ home detention.
CConditions to remain, as imposed in the original sentence.

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REASONS OF THE COURT

(Given by Dobson J)

On 4 November 2013 the appellant, Mr Naiker, was sentenced in the Auckland District Court to five months’ home detention on two convictions for possession of an offensive weapon and one conviction for a threatening act.[1] He has appealed that sentence as being manifestly excessive. The sentence has been suspended pending determination of his appeal.
[1]R v Naiker DC Auckland CRI-2013-004-004172, 4 November 2013.
The offending occurred after the breakup of a relationship with the complainant. Mr Naiker was 17 at the time of the offending, and the girl involved somewhat younger. They began a relationship when they were both students at the same secondary school, and it developed to the point that Mr Naiker had moved in with the complainant, living in her mother’s flat. Mr Naiker was expelled from the school in early March 2013 and the complainant ended her relationship with him shortly thereafter.
Shortly after the complainant had ended the relationship, Mr Naiker went to her home, uninvited, and argued with her. During the course of the exchange he took a knife from the kitchen at the flat, handed it to her and urged her to kill him.
Mr Naiker did not accept that the relationship had ended and pestered the complainant to an extent that she was extremely fearful of him. She blocked communications from his cell phone, which led to Mr Naiker sending texts to one of the complainant’s friends on 11 April 2013 that included threats to kill himself and harm others. Those communications were referred to the police, who issued a warning to Mr Naiker to stay away from the complainant.
At around 4.30 am on 16 April 2013, Mr Naiker visited the complainant’s home, banging loudly on her window and calling out to her in angry tones. He was refused entry and made comments to the complainant, including:
Talk to me before I blow this place.
The police were called and Mr Naiker was arrested and searched. He was carrying a 28 centimetre boning knife.
Mr Naiker was charged with possession of an offensive weapon in relation to the occasions on which he had handed a knife to the complainant, and in respect of the boning knife he had in his possession on 16 April 2013. The charge of a threatening act was laid in relation to Mr Naiker’s comments to the complainant on 16 April 2013.

Sentencing decision

Judge Crosbie did not…

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 Naiker v The Queen

Details

AGLC: Naiker v The Queen [2014] NZCA 20
Case: [2014] NZCA 20
Decision Date: 20 February 2014 at 10.30 am

CaseChat Overview and Summary

The case of Naiker v The Queen involved an appeal by Manish Naiker against his sentence imposed by the Auckland District Court. Naiker had been sentenced to five months of home detention following convictions for possession of an offensive weapon and a threatening act. The Court of Appeal of New Zealand, comprising Justices Harrison, Hansen, and Dobson, heard the appeal on 10 February 2014 and delivered its judgment on 20 February 2014. Naiker was represented by counsel A J Holland and L Johnson, while G H Vear represented the respondent, the Crown.

The central issue before the Court was whether the sentence imposed by the District Court was manifestly excessive. Naiker argued that the starting point for the sentence was too high and that the sentence of home detention was more restrictive than appropriate. The Crown contended that the sentence was appropriate given the nature and seriousness of the offences. The Court was required to determine whether the District Court's assessment of the seriousness of the offending and the appropriateness of the sentence was correct.

In its judgment, the Court of Appeal found that the starting point for sentencing, as determined by the District Court, was indeed too high. The Court considered that a starting point of 12 months' imprisonment was more appropriate, given the totality of the offending. The Court also noted that the sentence of home detention was appropriate, despite Naiker's arguments to the contrary, because it was necessary to convey an adequate deterrent signal for the serious nature of the offences. The Court substituted the original sentence of five months' home detention with one of three months' home detention, while maintaining the special conditions imposed by the District Court.

The Court of Appeal allowed the appeal against the sentence, substituting the original sentence with one of three months' home detention. The conditions imposed by the District Court were to remain in place. Naiker was to report to the Probation Office and commence his sentence at the specified address following the release of the judgment.

Orders