Pihema v The the Queen - [2022] NZHC 1730

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI 2022-483-9

[2022] NZHC 1730

BETWEEN
JAMIE WILLIAM PIHEMA

Appellant

AND

THE QUEEN

Respondent

Hearing: 19 July 2022

Counsel:

J H Waugh for Appellant J Liu for Crown

Judgment:

19 July 2022

JUDGMENT OF MALLON J

Introduction

[1] The appellant pleaded guilty to and was convicted of sexual violation by unlawful sexual connection with a female over 16,1 assault of a person in a family relationship (representative),2 wilful damage3 and destruction of a travel document.4 He was sentenced in the District Court to 27 months and two weeks’ imprisonment.5

[2] He appeals this sentence. He contends his sentence was manifestly excessive because the Judge allowed an inadequate discount for the personal circumstances set out in a s 27 cultural report. He says a discount of 20 per cent rather than 10 per cent

1      Crimes Act 1961, ss 128(1)(b) and 128B (maximum period of imprisonment of 20 years; category 3 offence).
2      Section 194A (maximum period of imprisonment of two years; category 3 offence).
3      Summary Offences Act 1961, s 11(1)(a) (maximum period of imprisonment of three months or
$2,000 fine; category 2 offence).
4      Passport Act 1992, s 31(2) (maximum period of imprisonment of two years; category 2 offence).
5      R v Pihema [2022] NZDC 8550. He was ordered to pay reparation of $391 to the victim in relation to the wilful damage charge. A protection order was also made.

PIHEMA v R [2022] NZHC 1730 [19 July 2022]

ought to have been allowed and this would have brought the end sentence into a range where a rehabilitative sentence could have been imposed.

[3] The respondent submits the sentence was within the range available to the sentencing Judge. It says a 10 per cent discount was appropriate. The respondent also says that if a higher discount ought to have been imposed, this was balanced out by the generous guilty plea and remorse discounts that were given and, standing back, the end sentence was within range.

Summary of facts

[4] The representative assault charge related to incidents between March and April 2021 when the appellant was in a relationship with the victim. On one occasion the appellant backhanded on the victim’s face causing a cut to her eyebrow, a sore nose and damage to her sunglasses. Later the same day, he punched her in the right eye and chin causing a black eye and bruising on her chin. On another occasion, he ran after her, put her in a headlock and bit her hand when she tried to get away.

[5] The charges of wilful damage and destroying a travel document concerned the same period. The appellant smashed two cell phones belonging to the victim. He also cut out pages of her passport so that it was unusable and messaged her to tell her he had done so.

[6] The lead charge of sexual violation concerned an incident in April 2021. The appellant…

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 The the Queen

Details

AGLC: Pihema v The the Queen [2022] NZHC 1730
Case: [2022] NZHC 1730
Decision Date: 19 July 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Jamie William Pihema appealed against his sentence for sexual violation, assault, wilful damage, and destruction of a travel document. The District Court had sentenced him to 27 months and two weeks’ imprisonment. Pihema argued that the sentence was manifestly excessive, claiming that the Judge had allowed an inadequate discount for his personal circumstances as outlined in a section 27 cultural report. Pihema contended that a 20 per cent discount, rather than the 10 per cent discount allowed, should have been applied. He argued that this would have brought the end sentence within a range where a rehabilitative sentence could have been imposed.

The Crown submitted that the sentence was within the range available to the sentencing Judge and that a 10 per cent discount was appropriate. The Crown further argued that even if a higher discount ought to have been imposed, this was balanced out by the generous guilty plea and remorse discounts that were given. The Crown submitted that, standing back, the end sentence was within range.

The court considered that the appellant's offending took place while he was subject to intensive supervision, and he had previously received community sentences as well as short-term imprisonment sentences. The offending had continued despite these sentences. The court was satisfied that the end sentence was within range for these reasons. The appeal against sentence was dismissed.

Orders