Peauafi v Police - [2014] NZHC 2537

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CRI-2014-404-259

[2014] NZHC 2537

BETWEEN
FINAU PEAUAFI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 14 October 2014

Appearances:

S Cullen for the Appellant L Mills for the Respondent

Judgment:

15 October 2014

JUDGMENT OF ELLIS J

This judgment was delivered by me on Wednesday 15 October 2014 at 4.15 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:………………………….

Counsel/Solicitors:
S Cullen, Barrister, Auckland
L Mills, Meredith Connell, Auckland

PEAUAFI v NEW ZEALAND POLICE [2014] NZHC 2537 [15 October 2014]

[1] Mr Peauafi appeals against a sentence of two years and six months’ imprisonment imposed by Judge B A Gibson in the Auckland District Court1 on Mr Peauafi’s conviction on one count of robbery and one count of unlawfully taking a motor vehicle. Mr Peauafi was 18 years old at the time of the offending.

[2] The maximum penalty on the robbery charge is 10 years’ imprisonment. The maximum on the unlawful taking charge is seven years’ imprisonment.

[3] The facts of the matter were set out by Judge Gibson at paras [2]-[5] of his sentencing notes as follows:

[2] Mr Maamaloa, although older, took a slightly lesser role in the offending as is acknowledged by Mr Peauafi. The main offending, the robbery, involved an assault on Mayoral Drive on a person who was walking home, carrying a brown satchel at approximately 3.45 am in the morning. He was approached by the defendants, there were in fact three of them, the other defendant does not appear to have been apprehended, and shoved to the ground by Mr Peauafi. He was then punched twice in the face and he lost consciousness.

[3] The summary then indicates that both Mr Maamaloa and Mr Peauafi punched and kicked him to the head. They then decamped from the scene but were caught shortly thereafter and the brown satchel was recovered with all of its contents.

[4] The level of violence inflicted on the victim was very serious because he received a fractured jaw. Regrettably no victim impact statement is available, the victim has gone overseas, so the level of harm and personal injury can only be imagined but as I mentioned to counsel, this is but one further example of your thugs terrorising persons going about their business in the city and making the streets unsafe for everyone and there have been many instances of this sort of behaviour before the Courts.

[5] For Mr Peauafi there is an additional charge of unlawful taking of a motor vehicle and the facts of that matter are that a BMW motor vehicle was stolen from outside an address in Tauranga and Mr Peauafi was collected by an associate in Tauranga a day later and driven to Matamata. In the course of that journey, the defendant learned that the vehicle was stolen and he drove the vehicle himself from Matamata to Auckland. The vehicle was stopped at a police checkpoint at Onehunga and the defendant…

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 Peauafi v Police

Details

AGLC: Peauafi v Police [2014] NZHC 2537
Case: [2014] NZHC 2537
Decision Date: 15 October 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, Mr Finau Peauafi appealed against a sentence of two years and six months’ imprisonment imposed on him by Judge B A Gibson in the Auckland District Court for convictions on one count of robbery and one count of unlawfully taking a motor vehicle. Mr Peauafi, who was 18 years old at the time of the offending, argued that the sentence was excessive and that the sentencing judge erred by not applying discounts for remorse, rehabilitative prospects, or by not considering the totality of the offences.

The legal issues for the court to decide were whether the sentencing judge made any relevant error in imposing the sentence, and whether the sentence was manifestly excessive. The court was required to consider whether the final sentence was outside the available range given the statutory maximum penalties and the circumstances of the offending. The court applied the “error principle” in reviewing the appeal, which means that the appeal is not generally a second shot at sentencing.

The court found that while it was open to the sentencing judge to apply discounts for remorse and rehabilitative prospects, it was not a relevant error for the judge not to do so given Mr Peauafi’s history. The court also found that the sentence was not manifestly excessive despite the refusal to apply discrete discounts for youth and rehabilitative prospects. The court concluded that the sentence of two years and six months’ imprisonment was within the available range and dismissed the appeal.

The final order of the court was that Mr Peauafi’s appeal against sentence was dismissed. The original sentence of two years and six months’ imprisonment for the robbery charge and a concurrent four months’ imprisonment for the unlawful taking charge, imposed by Judge B A Gibson in the Auckland District Court, was upheld.

Orders