Narayan v Police - [2012] NZHC 988

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI-2012-406-009 [2012] NZHC 988

WALTER FREDERICK NARAYAN

v

NEW ZEALAND POLICE

Hearing: 10 May 2012

Counsel: J Holdaway for Appellant
J Webber for Crown

Judgment: 11 May 2012

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 2:00pm on the 11th May 2012.

JUDGMENT OF WILLIAMS J

[1] On 10 May, having heard from counsel, I allowed this appeal with reasons to follow. Here are those reasons.

[2] On 5 March, Judge Russell sentenced Walter Narayan to a total of 14 months’
imprisonment on three counts – two of breaching protection orders and one of wilful damage. He appeals, arguing that this sentence was manifestly excessive.

WALTER FREDERICK NARAYAN V NEW ZEALAND POLICE HC BLE CRI-2012-406-009 [11 May 2012]

[3] The breach of protection offences were against Mr Narayan’s partner. They had been in an on again and off again relationship for 10 years. They have four children together. She obtained a temporary protection order against him on
1 November 2012. A month and a half later, late at night on 21 December 2012, the appellant appeared outside her address, banging very loudly on the door. He woke his daughters and the police were called. The police located the appellant down the street. He initially denied the offending. When eventually put in the police car, he kicked the centre console and smashed a window with his elbow – this incident is reflected in the wilful damage count.

[4] Two days later, the appellant again went over to his partner’s address. She asked him to leave several times. He refused. He said “If I can’t see my kids, well you can’t either. And you know where you will be.” He told police he was there because he wanted to see his children.

[5] Mr Narayan has many previous convictions,[1] although none for breach of protection orders. His history includes 34 family violence callouts, and 19 of his convictions are related to domestic violence. The appellant seems to have a highly destructive and abiding addiction to drink. If he is to avoid an ever downward spiral, he needs to do something about that.

[1] These included 24 convictions for violence, 35 for dishonesty, eight for driving, six for breach of sanctions, three for drug crime and 26 for miscellaneous offences (disorderly behaviour, trespass etc).

[6] In relation to his previous convictions, Mr Narayan had 86 hours outstanding community work and $5,946 in outstanding fines.

[7] The pre-sentence report recommended imprisonment. No-one is arguing against that outcome on appeal.

[8] The PSR details the appellant’s “up and down” relationship with the victim. It seems their relationship has now stalled indefinitely. The PSR explains this is largely due to the appellant’s alcohol addiction. This is discussed further in an A&D Assessment report prepared by the Nelson Marlborough DHB.

The approach of Judge Russell

[9] The Judge acknowledged Mr Narayan’s criminal history, as well as the PSR…

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 Narayan v Police

Details

AGLC: Narayan v Police [2012] NZHC 988
Case: [2012] NZHC 988
Decision Date: 11 May 2012

CaseChat Overview and Summary

In the High Court of New Zealand, Blenheim Registry, Walter Frederick Narayan appealed against his 14-month imprisonment sentence imposed by Judge Russell for breaching protection orders and wilful damage. The court was required to determine if the sentence was manifestly excessive. The legal issues revolved around the appropriateness of the sentence given the totality of the offending and whether it could be supported on the authorities. The court considered the nature of the breaches, the appellant's criminal history, and the need for accountability, denunciation, and deterrence. The court concluded that the sentence was substantially too high and substituted a sentence of nine months’ imprisonment to be served concurrently. This was based on the severity of the lead offence, the totality of the offending, and the appellant's extensive criminal history, adjusted for his guilty plea.

Orders