Peita v Police - [2020] NZHC 2098

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2020-488-34

[2020] NZHC 2098

BETWEEN
HENRY LIONEL PEITA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 17 August 2020

Appearances:

T Spencer for the Appellant

R Annandale and C Taylor for the New Zealand Police

Judgment:

21 August 2020

JUDGMENT OF POWELL J

This judgment was delivered by me on 21 August 2020 at 4 pm Registrar/Deputy Registrar
Date:

PEITA v NEW ZEALAND POLICE [2020] NZHC 2098 [21 August 2020]

[1] On 20 May 2020 the appellant, Henry Peita, pleaded guilty to a wide range of offending committed between November 2019 and May 2020: two charges of burglary;1 two charges of failing to answer bail;2 attempting to take a vehicle;3 escaping custody;4 wilful damage;5 providing false details to the Police;6 and failing to remain stopped.7

[1] On 2 July 2020 Judge Orchard in the District Court sentenced Mr Peita to two years and one-month imprisonment on the lead burglary charge. Her Honour then imposed lesser concurrent sentences on the remaining burglary charge, the wilful damage charge and the charge of attempting to take a motor vehicle.8 Judge Orchard also ordered Mr Peita to pay reparations in the sum of $3,000. On the remaining charges Mr Peita was convicted and discharged.

[2] Mr Peita appeals against his sentence on the lead charge on the grounds it was manifestly excessive. Specifically, Mr Peita contends that Judge Orchard erred by:

(a)adopting a starting point that was too high;

(b)failing to adjust the starting point to reflect the totality principle; and

(c)providing insufficient credit for the guilty pleas.

The offending

[3] On 20 November 2019 Mr Peita unlawfully entered the garage of a residential property in Kerikeri and took an outboard motor, a drill set, a petrol can and scuba diving gear, to the value of $5309 (“the November burglary”).

1      Crimes Act 1961, s 231(1)(a). Maximum penalty 10 years’ imprisonment.
2      Bail Act 2000, s 38(a). Maximum penalty 1 year imprisonment.
3      Crimes Act 1961, s 226(2). Maximum penalty 7 years’ imprisonment.
4      Section 120(c). Maximum penalty 5 years’ imprisonment.
5      Summary Offences Act 1981, s 11(1)(a). Maximum penalty 3 months’ imprisonment.
6      Land Transport Act 1998, s 44. Maximum penalty $10,000 fine.
7      Sections 52A(1)(b) and 114. Maximum penalty $10,000 fine.
8      On the remaining burglary charge Mr Peita was sentenced to 6 months’ imprisonment. On the wilful damage charge Mr Peita was sentenced to one month imprisonment, and on the charge of attempting to take a motor vehicle a sentence of two months’ imprisonment as imposed.

[4] Sometime between 8 pm on Friday, 13 December 2019 and 8:30 am on Saturday, 14 December 2019, Mr Peita burgled a building located on a residential property in Kerikeri; entering through a locked door and taking a wallet, fishing gear, camera equipment and clothing to the value of some $22,357 (“the December burglary”).

[5] On 10 February 2020 Mr Peita entered a Toyota motor vehicle that did not…

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: [2020] NZHC 2098
Decision Date: 21 August 2020

CaseChat Overview and Summary

Henry Peita appealed against his sentence for burglary, arguing it was manifestly excessive. He was sentenced to two years and one-month imprisonment for a December burglary, with lesser concurrent sentences for other charges. The appeal focused on the starting point for the lead charge, the uplift for the second burglary, and the credit for guilty pleas. Ms Spencer, representing Peita, argued the starting point should have been no more than 12 months, with an uplift of six to eight months for the second burglary. She also argued the credit for guilty pleas was insufficient, resulting in a sentence designed to avoid home detention. Powell J dismissed the appeal, finding the starting point and uplifts were within the appropriate range, and the credit for guilty pleas was generous given the circumstances. The sentence of two years and one month imprisonment was deemed to be within the available range and appropriately balanced the principles of accountability, denunciation, and deterrence.

Orders