Paerau v Police - [2020] NZHC 547

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-528

[2020] NZHC 547

BETWEEN
RAMA PAERAU

Appellant

AND

NEW ZEALAND POLICE

Defendant

Hearing: 18 February 2020 and 17 March 2020

Counsel:

T Beach for Appellant (via telephone) J Kang for Respondent

Judgment:

24 March 2020

JUDGMENT OF WHATA J

This judgment was delivered by me on 24 March 2020 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors: Meredith Connell, Auckland

RAMA PAERAU v NEW ZEALAND POLICE [2020] NZHC 547 [24 March 2020]

[1] Mr Paerau pleaded guilty on one charge of burglary. He was sentenced to 22 months’ imprisonment. He now appeals against that sentence on the basis that the Judge failed to consider home detention.

[2] Mr Paerau has filed an affidavit setting out his background by reference to the matters set out in s 27 of the Sentencing Act. It was agreed that this should be admitted as both relevant and cogent evidence.

Background facts

[3] On Friday, 9 August 2019, at approximately 11.50 am, Mr Paerau was at the victim’s address. Mr Paerau, together with two associates, gained entry into the dwelling at that address by forcing open the locked back door with a prying tool. Once inside, Mr Paerau ransacked several rooms in the house, including a bedroom and the kitchen, stealing multiple items, including a wallet, bankcard, cheque book, cellphone and other electronics.

[4] Mr Paerau and his associates were interrupted by the victim whilst in the house. The offenders in reaction ran out the front door, passing the victim. The victim recognised Mr Paerau as a previous employee. The victim managed to grab hold of one of Mr Paerau’s associates who reacted by punching the victim in the head several times. During the scuffle, most of the stolen items were dropped in the driveway of the address. However, the victim’s iPhone and Excess Max were not recovered, both valued at $2,400.

[5] The victim suffered swelling in affected areas, but this was not inflicted by Mr Paerau.

Sentencing indication

[6] Mr Paerau sought a sentencing indication. In that indication, the Judge referred to Mr Paerau’s many previous convictions, including 13 burglary-related convictions. The Judge also noted Mr Paerau’s long history of otherwise failing to comply with sentences and prohibitions. Further, the Judge noted another recent burglary committed by Mr Paerau in September last year (for which he was sentenced to

imprisonment in February this year), only one month after the burglary now in question. The Judge noted:

[5] The issue has reduced itself to a basic one, what would be the duration of the sentence? I did not receive written submissions and I did not have any greater opportunity to consider this recital prior to commencement. The Court of Appeal in the case of Arahanga have stated that burglary convictions of private dwellings invariably draw sentences of between 18 months and two and a half years.…

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: [2020] NZHC 547
Decision Date: 24 March 2020

CaseChat Overview and Summary

In the case of Paerau v Police, the High Court of New Zealand considered an appeal against a sentence imposed on Mr Paerau, who had pleaded guilty to burglary. The key issue for the court was whether the sentencing judge erred in not considering home detention as an alternative to imprisonment. Mr Paerau argued that the judge's failure to consider this alternative constituted an error of law.

The court found that the sentencing judge did not consider home detention, despite Mr Paerau’s request and the mitigating circumstances presented. The court held that the judge was obligated to assess whether home detention was the most appropriate sentence in light of the personal mitigating factors. The court noted that home detention is not inherently more appropriate than imprisonment, but it is a viable alternative that should be considered when fixing a sentence. The judge’s failure to do so was deemed an error of law.

In reviewing the evidence, the court balanced the seriousness of the offence and the offender’s extensive criminal history against his personal circumstances and potential for rehabilitation. While the burglary was premeditated and caused significant harm, Mr Paerau’s background of early life violence, substance abuse, and criminal conduct, coupled with his expressed desire for rehabilitation, suggested that home detention could be a suitable alternative. The court concluded that home detention, particularly if it involved a full-time residential rehabilitation program, could effectively mitigate the risks of reoffending and provide an opportunity for Mr Paerau to break the cycle of criminality.

The court allowed the appeal and granted Mr Paerau leave to apply for home detention, provided it was in a suitable full-time residential program. The period of home detention would correspond to 50 per cent of the remaining sentence. The decision underscores the importance of considering all available sentencing options and the principles of rehabilitation and deterrence.

Orders