Palalagi v Police - [2015] NZHC 1832

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000124 [2015] NZHC 1832

BETWEEN
BRYDEN JOSEPH PALALAGI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 14 July 2015

Appearances:

Paul Pati for the Appellant
Rebecca Thomson and Sarah McKone for the Respondent

Judgment:

4 August 2015

JUDGMENT OF MOORE J [Appeal against sentence]

This judgment was delivered by me on 4 August 2015 at 4:45pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar
Date:

PALALAGI v NEW ZEALAND POLICE [2015] NZHC 1832 [4 August 2015]

Introduction

[1] Bryden Joseph Palalagi appeared in the Manukau District Court for sentence having entered pleas of guilty to the following charges:

(a) two charges of burglary;1 and

(b) three charges of indecent assault.2

[2] He was sentenced to three years and nine months’ imprisonment, concurrent in respect of all offences. He now appeals on the grounds that, in all the circumstances, the sentence was manifestly excessive.

Background facts

[3] The offending at the centre of this appeal arises from three separate events which occurred in August 2014.

[4] The first took place on 1 August 2014 when Mr Palalagi entered the home of the first victim through an unlocked window. She was in bed asleep. He approached her, slid his hand up her ankle and leg for some minutes. After a time, she realised what was happening. She sat up and Mr Palalagi fled. These events form the basis for one charge of burglary and a charge of indecent assault.

[5] The second incident took place on 24 August 2014 when Mr Palalagi entered another victim’s home through an unlocked ranch slider. He then entered the victim’s bedroom and knelt down at the end of her bed where she was sleeping with her seven year old son. He moved his hand up and down the victim’s leg several times, waking her up. She sat up, saw Mr Palalagi and screamed. He ran out of the room and out of the house. As with the first victim, he was not known to her. These
events form the basis for one charge of burglary and one charge of indecent assault.

1 Crimes Act 1961, s 231(1)(a); maximum penalty of 10 years’ imprisonment.
2 Crimes Act 1961, s 135; maximum penalty of seven years’ imprisonment.

[6] Two days later, on 26 August 2014, the victim, in relation to the third indecent assault, was standing outside an internet cafe in Papatoetoe when Mr Palalagi, who, again, was not known to her, approached her from behind. He told her that she had something white on her pants, to which she replied “Where?” Mr Palalagi pointed to her bottom, approached her and repeated his earlier statement. Then, using his finger, he poked her bottom with some force before turning and entering the internet cafe where he was located a short time later by the Police.

[7] Mr Palalagi pleaded guilty to all charges at the first reasonable opportunity. Furthermore, following Mr Palalagi’s arrest in relation to the…

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: [2015] NZHC 1832
Decision Date: 4 August 2015

CaseChat Overview and Summary

Bryden Joseph Palalagi was sentenced to three years and nine months’ imprisonment by the Manukau District Court for two charges of burglary and three charges of indecent assault. He appealed on the grounds that the sentence was manifestly excessive. The appeal was heard by Moore J in the High Court at Auckland. The High Court allowed the appeal and substituted a sentence of three years’ imprisonment. In considering the appeal, the Court was required to decide whether the sentence imposed by the District Court was manifestly excessive. The Court considered the starting point for the sentence, the relevance of the three-strikes regime in determining sentence length, and whether discounts for youth and remorse were appropriate. The starting point for the sentence of five years’ imprisonment was found to be manifestly excessive. The Court found that the three-strikes regime was not relevant in determining sentence length. The Court also found that no discount for youth was appropriate but that a discount for early pleas of guilty was available. The Court found that no further discount for remorse was appropriate.

Orders