Paikea v Police - [2017] NZHC 1286

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-425
CRI-2016-404-426

CRI-2016-404-427 [2017] NZHC 1286

BETWEEN
WIREMU PAIKEA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 27 March 2017

Appearances:

G Vear and F Lowery for Appellant
E Hoskin for Respondent

Judgment:

13 June 2017

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 13 June 2017 at 3.00 pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Paikea v NZ Police [2017] NZHC 1286 [13 June 2017]

[1] Wiremu Tukotuku Paikea, aged 27, pleaded guilty and was sentenced by Judge B A Gibson in the Auckland District Court on 15 November 20161 to three years and 11 months’ imprisonment on charges arising from events on the following dates:

(a) On 12 February 2016, reckless driving,2 driving while disqualified,3

and failing to comply.4

(b) On 14 February 2016, theft (under $500).5

(c) On 12 March 2016, unlawfully getting into a motor vehicle6 and intimidation.7

(d)On 22 March 2016, burglary,8 unlawfully taking a motor vehicle,9 reckless driving,10 driving while disqualified (third or subsequent),11 and injuring with intent to injure.12

[2] All of Mr Paikea’s offending took place while he was subject to a nine-month supervision order for shoplifting and driving-related charges on which he had been sentenced on 19 January 2016. Moreover, the March offending took place while Mr Paikea was on bail for the February offending.

[3] Mr Paikea appeals against the total effective end sentence on the ground that it is manifestly excessive.

1      R v Paikea [2016] NZDC 22948.
2      Land Transport Act 1998, s 35; maximum penalty three months’ imprisonment or a $4,500 fine.
3      Section 32(1)(a); maximum penalty three months’ imprisonment or a $4,500 fine.
4      Section 52(1)(c); maximum penalty a $10,000 fine.
5      Crimes Act 1961, s 219; maximum penalty three months’ imprisonment under s 223(d).
6      Section 226(2); maximum penalty two years’ imprisonment.
7      Summary Offences Act, s 21(1)(a); maximum penalty three months’ imprisonment.
8      Crimes Act, s 231; maximum penalty 10 years’ imprisonment.
9      Section 226(1); maximum penalty seven years’ imprisonment.
10     Land Transport Act, s 35; maximum penalty three months’ imprisonment or a $4,500 fine.
11     Section 32(1)(a); maximum penalty two years’ imprisonment or a $6,000 fine.
12     Crimes Act, s 189(2); maximum penalty five years’ imprisonment.

[4] On 12 February 2016 police responded to a call about a car driving strangely on the motorway. They observed Mr Paikea’s car swerving across lanes towards other cars. The police twice attempted to stop Mr Paikea on the motorway, but he failed to remain stopped or respond to police lights and sirens. He drove dangerously to avoid police, causing the police to abandon the pursuit. When he exited the motorway and then left the vehicle on foot, Mr Paikea was arrested.

[5] On 14 February 2016, Mr Paikea shoplifted a children’s slide worth $229.

[6] On 12 March 2016, Mr Paikea arrived at a property in a stolen car. He became aggressive towards the occupant, then swung his hand at her face,…

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: [2017] NZHC 1286
Decision Date: 13 June 2017

CaseChat Overview and Summary

Wiremu Tukotuku Paikea appeals against his sentence of three years and eleven months’ imprisonment, imposed by Judge Gibson in the Auckland District Court on 15 November 2016. The appeal contends that the sentence is manifestly excessive, both because the starting point was too high, and because insufficient credit was given for the appellant’s rehabilitative efforts and his guilty pleas. The central issue was whether the sentence imposed by the sentencing judge was manifestly excessive, having regard to the overall offending and the appellant’s personal circumstances. The court found no error in the Judge’s approach to sentencing, and dismissed the appeal. The court found that the Judge’s starting point of three years and six months was within the appropriate range, and that the Judge’s approach to the uplifts and discounts was principled. The court accepted that the appellant’s rehabilitative efforts warranted a discount of three months, and a discount of 15% for his guilty pleas was appropriate. The sentence imposed by the sentencing Judge was within the range the court would have arrived at on a close analysis of the offending and the appellant’s personal circumstances.
[40] The appeal is dismissed.

Orders