Pei v Police - [2017] NZHC 1154

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2017-454-4 [2017] NZHC 1154

BETWEEN
FARANIKO PEI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 16 May 2017

Appearances:

P L Murray for the Appellant
J A Eng for the Respondent

Judgment:

30 May 2017

JUDGMENT OF CULL J

Introduction

[1] Mr Pei appeals against his conviction and sentence on a charge of using a firearm against a law enforcement officer.1 On 2 March 2017, following a Judge alone trial in the District Court, Judge Edwards sentenced Mr Pei to five years, ten months’ imprisonment for this and other offences.2

[2] Mr Pei says that a miscarriage of justice has occurred on the grounds that:

(a) the Judge misapplied the law relating to the correct interpretation of

the word “against” in s 198A(1) of the Crimes Act 1961 (the Act); and

(b) the Judge erred in her assessment of the evidence that Mr Pei used a

firearm “against” Constable Ross.

1 Crimes Act 1961, s 198A(1), which has a maximum sentence of 14 years’ imprisonment.
2 New Zealand Police v Pei [2016] NZDC 16990 [conviction decision]; and [2017] NZDC 4206 [sentence decision].

PEI v NEW ZEALAND POLICE [2017] NZHC 1154 [30 May 2017]

[3] Mr Pei accepts that he was guilty of an offence of reckless discharge of a firearm, which he contends should be entered in substitution for using a firearm against a law enforcement officer.3 Mr Pei submits that, arguably, he used a firearm against the Police, but not against the specified law enforcement officer, namely Constable Ross.

Factual background4

[4] On the evening of 10 August 2015, Mr Pei went to the Highbury Community Policing Centre and fired two shots from a 12 gauge shotgun into the front door and windows from outside. Mr Pei then drove to the Palmerston North Central Police Station, which was still open to the public, and fired two shots into the safety glass at the public counter. A non-uniformed police officer, Constable Ross, was sitting behind the counter at the time. The shots impacted between two to three metres from where Constable Ross was seated. It is common ground that the shots were not fired at the Constable or with any intention to shoot at her.

[5] Mr Pei then turned around, walked back outside through the main entrance and fired a further two shots at the outer glass entrance doors. After a police chase, the defendant was eventually arrested on the outskirts of Palmerston North.

[6] The day before the shooting, Mr Pei had complained to police about the treatment his sister was receiving at Palmerston North Hospital. His sister was a patient at the Hospital and very unwell at the time. Mr Pei had gone to the police the day before the incident to express his concern for how she was being treated. The police contacted the Hospital by phone, but told Mr Pei that he would need to make a complaint directly to the Hospital administration. Judge Edwards…

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 Pei v Police

Details

AGLC: Pei v Police [2017] NZHC 1154
Case: [2017] NZHC 1154
Decision Date: 30 May 2017

CaseChat Overview and Summary

The appellant, Mr Pei, appeals against his conviction and sentence on a charge of using a firearm against a law enforcement officer. The issue before the Court is whether the Judge misapplied the law relating to the correct interpretation of the word “against” in s 198A(1) of the Crimes Act 1961 and whether the Judge erred in her assessment of the evidence. The Court found that the Judge’s interpretation of “against” was correct and that the Judge did not err in her assessment of the evidence. The appeal is dismissed.

In coming to this conclusion, the Court noted that the statutory context of s 198A suggests that “against” does not require the gun to be pointed and discharged at or toward the named constable. The Court found that the Judge was entitled to find that Mr Pei intentionally used the firearm against Constable Ross. The Court considered the evidence before the Judge and found that the Judge’s conclusion that Mr Pei intended to intimidate and pressurise Constable Ross was not in error. The Court held that the Judge’s interpretation of “against” was correct and that the Judge’s assessment of the evidence was not in error. The appeal is dismissed.

Orders