Pahulu v Police - [2020] NZHC 153

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-000550

[2020] NZHC 153

BETWEEN
MONU TANIELA PAHULU

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 10 February 2020

Appearances:

S Walker for the Appellant

K Fitzgibbon for the Respondent

Judgment:

13 February 2020

JUDGMENT OF MOORE J

[Appeal against sentence]

This judgment was delivered by me on 13 February 2020 at 2:00 pm.

Registrar/ Deputy Registrar Date:

PAHULU v NEW ZEALAND POLICE [2020] NZHC 153 [13 February 2020]

Introduction

[1] On 22 November 2019 Judge E Paul, in the District Court at Auckland, sentenced Mr Pahulu to 17 months’ imprisonment following his pleas of guilty on the nine following charges:

(a)breach of a protection order (x 2);1

(b)breach of release conditions (x 2);2

(c)breach of community work;3 and

(d)failing to answer District Court bail (x 4).4

[2] Mr Pahulu appeals his sentence on the basis that both the starting point and the uplift for previous convictions resulted in a manifestly excessive sentence. He also claims the Judge erred by failing to grant him leave to apply for home detention.

The offending

Breaches of protection order

[3] The victim is Mr Pahulu’s ex-partner. The couple have two children together. On 18 December 2016, the victim was granted a final protection order against Mr Pahulu.

[4] The first breach occurred on 5 February 2019 at the family home. Although the summary of facts is silent on the point, it seems that the couple were residing together at the time. The conditions to the protection order permitted this if the

1      Family Violence Act 2018, ss 90(a)(iv) and 112(1)(a): Maximum penalty three years’ imprisonment. The first breach took place in February 2019, so it is governed by the Domestic Violence Act 1995 (repealed on 1 July 2019 by the Family Violence Act 2018), ss 49(1)(b) and 49(3). The second is governed by the Family Violence Act 2018. The maximum penalty is three years’ imprisonment under both Acts.
2      Sentencing Act 2002, s 96(1): Maximum penalty one year imprisonment.
3      Sentencing Act 2002, s 71(1)(a): Maximum penalty one year imprisonment.
4      Bail Act 2000, s 38(a): Maximum penalty one year imprisonment.

protected person expressly consented. Consent could be revoked by the protected person at any time.

[5] Mr Pahulu attempted to initiate an argument with the victim following which she told him to leave. He refused and remained inside the house. Further requests that he leave were ignored. In the face of these refusals, the victim left the address and flagged down a passing Police patrol. The Police found Mr Pahulu hiding under a bed in one of the bedrooms.

[6] The second breach occurred some seven months later on 27 September 2019. Mr Pahulu arrived at the victim’s home while she was hanging up the washing. It seems that by this time Mr Pahulu was no longer residing at the address. As he walked past her, the victim asked Mr Pahulu what he was doing…

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 153
Decision Date: 13 February 2020

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal against sentence brought by Monu Taniela Pahulu against the New Zealand Police. The appeal centred on the sentence imposed by Judge E Paul in the District Court, which sentenced Mr Pahulu to 17 months’ imprisonment following his guilty pleas on multiple charges, including breaches of a protection order, breach of release conditions, breach of community work, and failing to answer District Court bail. Mr Pahulu appealed the sentence, arguing that both the starting point and the uplift for previous convictions resulted in a manifestly excessive sentence. He also claimed the Judge erred by failing to grant him leave to apply for home detention.

The court examined the legal issues concerning whether there was an error in the sentence imposed and if a different sentence should be imposed. The appellant argued that the starting point of 12 months’ imprisonment for the two breaches of the protection order was excessive, and the uplift for previous convictions was inappropriate. The Crown maintained that the starting point and uplift were within the appropriate range and necessary given Mr Pahulu's extensive criminal history.

The court concluded that the starting point of 12 months was indeed excessive due to the relatively low level culpability of the index offending. The court found that a starting point of six months for the first breach, uplifted by three months for the second, more appropriately reflected the totality of the offending. Additionally, the court found the six-month uplift for previous convictions to be excessive, substituting a three-month uplift instead. The court also noted that the Judge should have considered granting leave to apply for home detention, but given Mr Pahulu's extensive history of non-compliance with court orders, the court decided not to make such an order.

In conclusion, the appeal was allowed, and the sentence was adjusted. The starting point for the protection order breaches was reduced to nine months with an uplift of three months for the other charges, one month on review, and three months for previous convictions, resulting in a final sentence of 12 months. The sentence of 17 months’ imprisonment was quashed and replaced with a sentence of 12 months’ imprisonment. All other sentences and release conditions remained intact. No order was made in terms of s 80I of the Sentencing Act 2002.

Orders