Peka-Hazel v Police - [2016] NZHC 2696

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI 2016-470-23 [2016] NZHC 2696

BETWEEN
CHEVY GEMMELL PEKA-HAZEL

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 10 November 2016

Counsel:

J M Holmes for Appellant
A Shore for Respondent

Judgment:

10 November 2016

(ORAL) JUDGMENT OF HEATH J

Solicitors:
Crown Solicitor, Tauranga
Counsel:
J M Holmes, Tauranga

PEKA-HAZEL v NEW ZEALAND POLICE [2016] NZHC 2696 [10 November 2016]

The appeal

[1] Mr Peka-Hazel was charged with burglary and unlawful taking of a motor vehicle arising out of separate events which occurred in March and April 2016. He entered pleas of guilty to those charges at an early stage. He came before Judge Ingram, in the District Court at Tauranga, on 30 June 2016, for sentence.

[2] Mr Peka-Hazel was sentenced to an effective term of imprisonment of one year and six months, and ordered to pay reparation. The Judge ordered that the first payment be made 28 days following his release from custody.1

Facts: the burglary charge

[3] Judge Ingram was alert to the unusual circumstances of the burglary offending. He described them in some detail in his sentencing notes. My summary is taken from the summary of facts to which Mr Peka-Hazel entered his plea of guilty.

[4] For about one year prior to the offending, Mr Peka-Hazel lived with his former partner and children at a rented property in Tauranga. On one occasion during that time he had an abusive verbal altercation with his landlord, in relation to unpaid rent. At that time, Mr Peka-Hazel threatened to set fire to the landlord’s house.

[5] In March 2016, as a result of failing to meet rental payments, Mr Peka- Hazel’s former partner and children were evicted from the property. They agreed to move possessions from the property on 20 March 2016, but this did not occur until
24 March 2016. Indeed, even then not all of their possessions were moved. The majority were left behind in a garage, together with some rubbish.

[6] The following weekend, the landlord and some of her friends went to the house to undertake some painting work in preparation for the arrival of new tenants. The majority of that work was finished by 5pm on 27 March 2016. At that stage, the
landlord left the address both locked and otherwise secure.

1 Police v Peka-Hazel [2016] NZDC 12227, at para [22].

[7] At about 7pm that night Mr Peka-Hazel, his former partner and one of their children arrived at the property. He gained access to the dwelling by kicking the front door and breaking out a deadbolt. Without authority, he entered the dwelling. He was followed by his former partner and child. Mr Peka-Hazel went upstairs and caused extensive damage to the house.

[8] Mr Peka-Hazel tipped paint over the floor and walls of the bedroom. Some paving stones were used to smash five of the upstairs windows. In addition, Mr Peka-Hazel used a concrete masonry block, which he threw at interior walls…

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: [2016] NZHC 2696
Decision Date: 10 November 2016

CaseChat Overview and Summary

The case of Peka-Hazel v Police involved an appeal by the appellant, Chevy Gemmell Peka-Hazel, against his sentence for burglary and unlawful taking of a motor vehicle. The appellant was convicted and sentenced by Judge Ingram in the District Court at Tauranga. The appellant argued that the effective sentence of 18 months imprisonment was manifestly excessive, and that the starting points taken for each charge were too high. He also argued that the Judge erred in declining to give leave to apply for a substituted sentence of home detention.

The court was required to determine whether the end sentence imposed by the District Court Judge was within the bounds available to him, and whether the sentence was "wholly out of proportion to the gravity of the overall offending". The court also had to consider whether the Judge was correct to conclude that a sentence of imprisonment was required, and whether cumulative sentences were appropriate for the offending.

The court found that the Judge was correct to conclude that a sentence of imprisonment was required, and that cumulative sentences were appropriate for the offending. While there may be room for differences of opinion as to how the end sentence might have been structured, the court found that the effective end sentence was not "wholly out of proportion to the gravity of the overall offending". Therefore, the sentence should be allowed to stand to mark the offending in total.

The appeal was dismissed.

The court made no orders as to costs.

Orders