Peters v The Queen - [2011] NZCA 334

IN THE COURT OF APPEAL OF NEW ZEALAND

CA100/2011
[2011] NZCA 334

BETWEEN RICHARD HETA PETERS
Appellant

AND THE QUEEN
Respondent

Hearing: 18 July 2011

Court: Stevens, Potter and Ronald Young JJ

Counsel: D P Hoskin for Appellant
B D Tantrum for Respondent

Judgment: 22 July 2011 at 1.00 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT
(Given by Potter J)

Introduction

The appellant, Richard Heta Peters, was charged with burglary together with Antonio Peters. Both entered guilty pleas to that charge and were sentenced by Judge Moses in the District Court at Manukau on 17 December 2010.[1] The appellant was sentenced to two years, two months’ imprisonment and now appeals against that sentence. The main ground of appeal is stated to be disparity with the sentence of his co-offender, who was sentenced to ten months’ home detention.

Factual background

[1]R v Peters DC Manukau CRI-2010-055-624, 17 December 2010.

The summary of facts upon which the guilty pleas were entered records that the appellant and his co-offender, while driving in their vehicle at mid-morning on 12 March 2010, entered the driveway of a rural property and proceeded towards the house. The appellant went around the left side of the house where he saw an open window. He entered through the window and uplifted a small black toilet bag and a small green jewellery box with two gold chains inside.
Antonio Peters, concerned at the length of time the appellant was absent, also left the vehicle and entered the house through the same window. They then entered the family room where they disturbed the complainant. She immediately ran from the house through a ranch slider. She was chased by one of the offenders (although the appellant denied this to the probation officer who prepared his pre-sentence report). The complainant ran a further fifteen metres and jumped off a retaining wall at the edge of the lawn in an attempt to evade the offenders. She received grazing and a substantial blow to her left cheek area as a result.
The offenders then returned to their vehicle and drove away from the address. Shortly afterwards they were stopped by police who observed erratic driving behaviour.

Sentencing

The Judge took a starting point for sentencing of two years, three months’ imprisonment for both offenders. In each case he added six months by way of uplift to the sentence for the significant list of previous convictions of the offenders, to reach a starting point of two years, nine months’ imprisonment. He then gave the appellant a credit for his guilty plea of just over twenty per cent, which reduced the sentence to two years, two months’ imprisonment. He said that in reaching that sentence he had taken into account both the remorse expressed and the guilty plea. He noted that since the sentence was of more than two years’ imprisonment, the issue of home detention did not arise.
In respect of Antonio Peters, from the revised…

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 Peters v The Queen

Details

AGLC: Peters v The Queen [2011] NZCA 334
Case: [2011] NZCA 334
Decision Date: 22 July 2011

CaseChat Overview and Summary

In the case of Peters v The Queen, Richard Heta Peters appealed against his sentence of two years and two months imprisonment for burglary. His co-offender, Antonio Peters, was sentenced to ten months of home detention. The appeal was primarily based on the perceived disparity in the sentences of the two co-offenders. The appellant argued that both he and his co-offender should have received similar sentences, given their similar ages and the nature of the offence.

The court was required to decide whether the disparity in the sentences was justified and whether the sentencing judge had properly exercised his discretion in determining the appropriate punishment for the appellant. The court also needed to consider whether the appellant's lack of employment and work experience, as well as his criminal history, warranted a harsher sentence compared to his co-offender.

The court found that there was a rational basis for the distinction in the sentences imposed on the two offenders. The appellant's criminal history, which included multiple burglaries and thefts, as well as his commission of the offence while on parole, justified a harsher sentence. Additionally, the appellant's lack of employment and work experience, compared to his co-offender who had a job and a supportive family environment, further supported the imposition of a custodial sentence. The court concluded that the sentencing judge had properly exercised his discretion and there was no basis for the Court of Appeal to intervene.

As a result, the appeal against sentence was dismissed, and the appellant's sentence of two years and two months imprisonment for burglary was upheld.

Orders