Paraone v Police - [2016] NZHC 2549

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2016-404-295 [2016] NZHC 2549

BETWEEN
POA PARAONE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 25 October 2016

Counsel:

V Heather for Appellant
C Piho for Respondent

Judgment:

25 October 2016

(ORAL) JUDGMENT OF HEATH J

Solicitors:
Crown Solicitor, Auckland
Counsel:
V Heather, Auckland

PARAONE v NEW ZEALAND POLICE [2016] NZHC 2549 [25 October 2016]

The appeal

[1] Mr Paraone appeals against an effective term of two years and three months’ imprisonment.1 That sentence was passed by Judge Wharepouri, in the District Court at Manukau, on 9 September 2016. The three offences on which Mr Paraone was sentenced were assault with intent to injure, threatening to kill and breach of a protection order.

Facts

[2] The guilty verdicts on the basis of which sentence was passed arose out of findings made by the Judge during the course of a defended hearing in the District Court at Papakura on 6 July 2016.2 The Judge described the essence of the
prosecution case3 as being that the complainant was subjected to a prolonged

domestic incident, during the course of which she was assaulted a number of times. The most serious assault was said to have been that which took place outside the dwelling house of her property. It involved the use of a dog chain which was wrapped around her neck. She was dragged a short distance in that manner.

[3] Judge Wharepouri accepted the evidence of the complainant in preference to that of Mr Paraone. Indeed, he referred to the latter’s evidence as lacking “a certain air of realism”.4

[4] In his sentencing remarks of 9 September 2016, the Judge described the background facts in this way:5

[2] . . . the complainant gave evidence of her ordeal. The evidence of the complainant was accepted by the Court in its entirety. Her evidence in the round was that on 27 February 2016 she went to a friend’s address together with you to celebrate her birthday. While at that address an argument started between you and her which saw the two of you leave that address and return to your shared home. You thought she was being unfaithful to you. It is during the course of the car journey that the complainant says that the assault began. It continued upon arrival at your home and involved you pushing her head down at one point onto the oven.

1      Police v Paraone [2016] NZDC 17526.
2      Police v Paraone [2016] NZDC 12610.
3 Ibid, at para [2].
4      Ibid, at paras [21] and [23].
5      Police v Paraone [2016] NZDC 17526.

It was not clear from her evidence whether she suffered any significant injury from that assault apart from soreness to the back of her head.

[3] You then grabbed her by the singlet and began to push and pull her from the kitchen to the bedroom down a hallway. Once in the bedroom you the pushed her onto the bed and your…

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 Paraone v Police

Details

AGLC: Paraone v Police [2016] NZHC 2549
Case: [2016] NZHC 2549
Decision Date: 25 October 2016

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal against a sentence of two years and three months' imprisonment imposed by the District Court on Mr. Paraone. The sentence followed convictions for assault with intent to injure, threatening to kill, and breaching a protection order. The appeal was brought by Mr. Paraone, and the Court heard submissions from V Heather, acting for the appellant, and C Piho, acting for the respondent, the New Zealand Police.

The legal issue before the court was whether the District Court's methodology in sentencing Mr. Paraone was appropriate, and if the sentence was within the range of acceptable sentences for the crimes committed. The court examined whether the uplift of six months to reflect the totality of the offending, including the threats to kill and the breach of the protection order, was within the range. The appellant's counsel argued that the sentencing judge should have imposed concurrent sentences for the charges of threatening to kill and breaching the protection order instead of applying cumulative sentences.

The High Court found that the methodology adopted by the sentencing judge was not something that needed to be dwelled upon. The court held that the powers of the High Court on a first appeal against sentence are set out in s 250 of the Criminal Procedure Act 2011. The court must allow the appeal if there is an error in the sentence imposed on conviction and a different sentence should be imposed. The court held that the sentence imposed by the District Court was not manifestly excessive, and that the uplift of six months to reflect the additional factors was within range.

The appeal against sentence was dismissed. The court found that the District Court imposed a sentence that was not susceptible to review on appeal.

Orders