Patuwai v Police - [2024] NZHC 3280

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI-2024-416-015 CRI-2024-416-016

[2024] NZHC 3280

BETWEEN
ANTHONY NEIL PATUWAI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 24 October 2024

Appearances:

M J Lynch for Appellant

R W Donnelly for Respondent

Judgment:

6 November 2024

JUDGMENT OF GRICE J

(Appeal against sentence)

Introduction

[1] Mr Anthony Patuwai was sentenced in the Gisborne District Court on 13 August 2024 to 20 months’ imprisonment, after pleading guilty to the following charges:

(a)obstructing police;1

(b)theft (over $1,000);2

1 Summary Offences Act 1981, s 23(a) — maximum penalty three months’ imprisonment, $2,000 fine.
2 Crimes Act 1961, ss 219 and 223(b) — maximum penalty seven years’ imprisonment.

PATUWAI v POLICE [2024] NZHC 3280 [6 November 2024]

(c)theft (under $500) (x2);3

(d)driving while disqualified (third and subsequent) (x3);4

[2] He now appeals against his sentence, on the ground that the Judge erred in declining to grant leave to apply for home detention, and therefore the sentence was manifestly excessive.

Summary of offending

[3] The first tranche of offences relates to driving while disqualified. At the time of the offending Mr Patuwai was a disqualified driver, having been disqualified from driving any motor vehicle for an indefinite period. The offences occurred in Gisborne on 25 August 2022, 31 January 2023 and 2 April 2023 respectively, and arose following the appellant being stopped for various reasons by police. Mr Patuwai had 12 prior convictions for driving while disqualified prior to the three offences which are the subject of his current appeal.

[4]The second tranche of offending relates to three incidents of shoplifting.

[5] The first charge of theft (under $500) arose on 23 March 2023, when Mr Patuwai took a DeWalt Hammer Drill Driver Kit 18 Volt SKU, valued at $289.00, from the power tools aisle of a shop without paying for it. He ran away when a staff member approached him in the carpark.

[6] The charge of theft (over $1000) related to Mr Patuwai detaching and taking a Hikmicro Thermal Thunder 2.0 TQ50 scope, valued at $6,799.00, from the firearms display in the “gun room” of a shop on 26 January 2024. He had concealed the scope in his trousers.

3 Crimes Act, ss 219 and 223(d) — maximum penalty three months’ imprisonment.
4 Land Transport Act 1998, ss 32(1)(a) and 32(4) — maximum penalty two years’ imprisonment,
$6,000 fine.

[7] The second charge of theft (under $500) related to groceries valued at a total of $173.66 taken from the Pak N Save in Gisborne on 22 June 2024. Mr Patuwai put the items in his bags and made no attempt to pay for them.

[8] The final offence of obstruction of a police officer arose out of an incident on 20 March 2024, when Mr Patuwai, after being warned not to, continued to take items out of his partner’s car which was being towed by police. Following two further warnings, Mr Patuwai was arrested.

Sentencing decision

[9] At…

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: [2024] NZHC 3280
Decision Date: 6 November 2024

CaseChat Overview and Summary

The appellant, Anthony Neil Patuwai, appeals against his sentence of 20 months’ imprisonment imposed by the Gisborne District Court. Patuwai had pleaded guilty to multiple charges, including obstructing police, theft, and driving while disqualified. The appeal focuses on whether the Judge erred in declining to grant leave for Patuwai to apply for home detention, arguing that the sentence was manifestly excessive.

The court was required to determine whether the Judge erred in declining to grant leave to apply for home detention. The court noted that a sentence of imprisonment was appropriate if the court was satisfied that the purposes of sentencing could not be achieved by any less restrictive sentence, and that the offender was unlikely to comply with any other available sentence. The court had to weigh the principles of sentencing, including denunciation, deterrence, and rehabilitation, against the specific circumstances of the offender.

The court found that the Judge had made a considered and principled choice between the two forms of sentence. The court considered Patuwai’s history of non-compliance with community-based sentences, his offending while on bail, and his failure to take the opportunity to obtain his driver’s licence following the adjournment of the original sentencing date. The court concluded that the Judge had ample material from which to conclude that an electronically monitored sentence was not an appropriate option. The court found no error in the Judge’s decision.

The appeal is dismissed.

Orders