Pihema v Police - [2017] NZHC 1672

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2017-443-11 [2017] NZHC 1672

BETWEEN
JAMIE WILLIAM PIHEMA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 18 July 2017

Counsel:

J M Woodcock for Appellant
G N Milne for Respondent

Judgment:

18 July 2017

Reasons:

20 July 2017

REASONS FOR JUDGMENT OF THOMAS J

Introduction

[1] Jamie Pihema was sentenced to 10 and a half months’ imprisonment at the

District Court at New Plymouth on 27 April 2017 on a charge of escaping custody.

[2] On 18 July 2017, I allowed Mr Pihema’s appeal against sentence.1 The Crown conceded the end sentence was not within range. In addition, the original sentencing indication on which the Judge relied contained a mathematical error and an error in methodology. The sentence of 10 and a half months’ imprisonment was quashed and replaced by a sentence of six months’ imprisonment. I now give my
reasons.

1 Pihema v Police [2017] NZHC 1650.

PIHEMA v NEW ZEALAND POLICE [2017] NZHC 1672 [18 July 2017]

Facts

[3] On 5 March 2017, Mr Pihema drove a Subaru car to a Z petrol station in New Plymouth. A passenger filled the tank. Mr Pihema drove away once the passenger had re-entered the car. The petrol was not paid for. The car was stopped by a marked Police patrol car on State Highway three. Mr Pihema provided false details as to his identity. The Police officer determined his true identity and arrested him on unrelated matters. Mr Pihema was allowed his request to retrieve some belongings from the Subaru. Mr Pihema drove away, at speeds in excess of 150 km per hour. The Police gave chase for a short distance, but abandoned the pursuit.

[4] Mr Pihema was found in the Subaru an hour later in a suburban driveway. Police found cannabis plants in a plastic bag in the boot of the car.

[5] Mr Pihema also breached his prison release conditions in December 2016 and February 2017 by failing to report on one occasion and failing to provide details of his address to his Probation Officer on another occasion.

[6] Mr Pihema pleaded guilty to eight charges: escaping from the lawful custody of the Police, dangerous driving, theft of petrol, possession of cannabis, failing to stop for the Police, providing false details to the Police and two charges of breach of release conditions.

[7] Since 2003, Mr Pihema has had a consistent history of property, traffic and low-level violence offences.

The District Court decision

[8] The sentencing Judge imposed the sentence when Mr Pihema pleaded guilty following a sentence indication delivered by another District Court Judge. The indication was not accepted by Mr Pihema, yet the sentencing Judge did not attend to a fresh consideration of the sentence, clearly under the misapprehension the indication had been accepted. The sentencing notes were confined to one page, recording the 10 and a half month imprisonment sentence for escaping custody,

along with a conviction and disqualification from driving for driving dangerously,…

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 Pihema v Police

Details

AGLC: Pihema v Police [2017] NZHC 1672
Case: [2017] NZHC 1672
Decision Date: 18 July 2017

CaseChat Overview and Summary

The case of Pihema v Police involved an appeal against sentence by the appellant, Jamie William Pihema, who was sentenced to 10 and a half months’ imprisonment for escaping custody. The appeal was heard by Thomas J at the High Court of New Zealand, New Plymouth Registry. The respondent, New Zealand Police, was represented by G N Milne, while the appellant was represented by J M Woodcock. The court was required to decide on the validity of the sentence imposed by the District Court and whether it was within the appropriate range.

The legal issues before the court were whether the District Court had erred in its mathematical calculation for the total starting point, whether the judge had the jurisdiction to impose a sentence for a deferred sentence, whether the uplift for prior offending should have been imposed before the discount for the guilty plea, and whether the uplift of three months was disproportionate. The court found that the starting point was incorrectly calculated as eight months’ imprisonment instead of the indicated 10 months. Additionally, the judge did not have jurisdiction to resentence on the deferred sentence for breach of release conditions, as per section 111 of the Sentencing Act 2002. The court also found that the uplift for prior offending should have been imposed before the discount for the guilty plea. Finally, the court determined that the uplift of three months was excessive given it was imposed on a starting point of eight months’ imprisonment.

The court quashed the sentence of 10 and a half months’ imprisonment on the charge of escape from custody and replaced it with a sentence of six months’ imprisonment. The court found that the appropriate starting point was seven months’ imprisonment for the totality of the offending, uplifted by one month for prior offending and less a 25 per cent discount for the guilty pleas. The court did not disturb any of the other sentences.

Orders