Pasifatama v Police - [2023] NZHC 3801

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-534

[2023] NZHC 3801

BETWEEN
TYRELL PASIFATAMA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 4 December 2023

Appearances:

M Johnstone for the Appellant S Vreeburg for the Respondent

Judgment:

4 December 2023

ORAL JUDGMENT OF BECROFT J

[As to appeal against sentence]

Solicitors:
Public Defence Service, Auckland Meredith Connell, Auckland

PASIFATAMA v NEW ZEALAND POLICE [2023] NZHC 3801 [4 December 2023]

The appeal

[1] This is an appeal against a sentence of 22 months and eight days’ imprisonment imposed by Judge Jelaš in the Auckland District Court on 23 August 2023.

[2] The sentence was for five charges arising out of four separate incidents, described later, but mainly involving assaults.

Summary of the result: wrong process but result not manifestly excessive

[3] In my view, the end sentence imposed was calculated inadequately without adopting the now appropriate sentencing methodology. There were no discrete and separate allowances made – in this case for an early guilty plea; for matters causative of the offending revealed in the s 27 report; and for personal mitigating factors.

[4] With great respect to Judge Jelaš, who is an experienced District Court Judge, no doubt in the pressure of a busy District Court list, she rather compressed the sentencing process; and the process she used the Crown accepts was in error. It is impossible to know from the Judge’s sentencing remarks what mitigating features she precisely relied upon and what allowances she made for them.

[5] All that said, even the appellant’s submission is that if the correct methodology had been followed, the end sentence would have resulted in a sentence of 19 to 21 months’ imprisonment. In my view the Crown is quite right to say that the end sentence was clearly within range and should not be “tinkered” with on appeal.

[6] Therefore, from the outset in this decision, I indicate that even if the correct methodology had been used and even if the sentence should have been between 19 to 21 months, that does not, and could not, render a sentence of 22 months “manifestly excessive”. As I observed to Mr Johnstone, this is a case where he has “won the battle”
– that is, he has persuaded me there is a deficiency in the sentencing process. But he has “lost the war” in that he has not demonstrated, and in my view cannot demonstrate, that the end sentence imposed was manifestly excessive.

[7] I compliment both counsel on their detailed and helpful submissions. What now follows is my detailed reasoning which, in my view, inevitably leads to the conclusion that this appeal must be dismissed.

What charges did Mr Pasifatama face?

[8]The five charges are as follows:

(a)Giving a false alarm of fire:1 On 23 October 2022, while the Police were in attendance for an unrelated matter, Mr Pasifatama set off the fire alarm on his apartment building twice in short succession. He knew…

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 Pasifatama v Police

Details

AGLC: Pasifatama v Police [2023] NZHC 3801
Case: [2023] NZHC 3801
Decision Date: 4 December 2023

CaseChat Overview and Summary

Tyrell Pasifatama has appealed against the sentence of 22 months and eight days’ imprisonment imposed by Judge Jelaš in the Auckland District Court on 23 August 2023. The sentence was for five charges arising out of four separate incidents, mainly involving assaults. The appeal was heard on 4 December 2023, with M Johnstone appearing for the appellant and S Vreeburg for the respondent.

The central legal issue was whether the sentence imposed by Judge Jelaš was calculated adequately and followed the appropriate sentencing methodology. The court considered whether there were discrete and separate allowances made for an early guilty plea, matters causative of the offending revealed in the s 27 report, and personal mitigating factors.

The High Court determined that while the sentencing process had deficiencies, the result was not manifestly excessive. The court noted that even if the correct methodology had been followed, the sentence would likely have resulted in a range of 19 to 21 months’ imprisonment. Since the imposed sentence of 22 months fell within this range, it could not be deemed manifestly excessive. The court commended the detailed submissions from both parties and concluded that the appeal must be dismissed.

Orders