Puriri v Police - [2014] NZHC 2335

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2014-412-000026 [2014] NZHC 2335

BETWEEN
HEMI PURIRI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 24 September 2014

Appearances:

L Collins for Appellant
CER Power for Respondent

Judgment:

24 September 2014

ORAL JUDGMENT OF GENDALL J

Introduction

[1] The appellant Mr Puriri appeals against a sentence of two years and one month’s imprisonment imposed by Judge Phillips in the Dunedin District Court on
1 August 2014 for the following charges:

(a) assault using a wire dog cage as a weapon;1

(b) wilful damage;2 and

(c) possession of cannabis.3

1      Crimes Act 1961, s 202C. Maximum penalty of five years’ imprisonment.
2      Summary Offences Act 1981, s 11(1). Maximum penalty of three months’ imprisonment or fine of $2000.
3      Misuse of Drugs Act 1975, s 7. Maximum penalty of three months’ imprisonment/fine of $500.

PURIRI v NEW ZEALAND POLICE [2014] NZHC 2335 [24 September 2014]

[2] Mr Puriri appeals on grounds that the starting point of two years’ imprisonment Judge Phillips adopted for the index charge of assault with a weapon was too high because he:

(a) incorrectly considered the victim as being vulnerable;

(b) disregarded the victim’s conduct when assessing Mr Puriri’s

culpability; and

(c) took the nature of the weapon into account as an aggravating feature. [3] Mr Puriri also appeals on the basis that Judge Phillips provided insufficient

credit for an early guilty plea.

[4] Mr Puriri says the culmination of these factors resulted in an end sentence that was manifestly excessive.

Background

[5] I turn now to the background facts in this appeal. The victim of the assault is a 20 year old female who is known to Mr Puriri. The victim of the broken car window relating to the wilful damage charge is a 55 year old man who is unknown to Mr Puriri.

[6] On 22 March 2014 Mr Puriri was drinking at an address in Turnbull Street. He left the address and walked along the road. Parked on the street was a flat deck truck, in which the victim and an associate were sitting.

[7] The victim asked Mr Puriri for a cigarette. As he handed over his tobacco, the victim took a hat from Mr Puriri’s head and wound the window of the truck up. Mr Puriri became agitated. He punched the windscreen of the truck, causing it to break. As he walked off he was followed by the victim and her associate. An altercation ensued.

[8] Mr Puriri then went to another address on Turnbull Street where he located a small wire dog cage, which he took and returned to the area where the victim was.

[9] He swung the dog cage at the victim’s head several times. The cage hit the victim in the face and arm. As a result, she received cuts to her face and arm. Several of her associates came to assist her.

[10] While at the Dunedin Central Police Station, Mr Puriri was searched. In his front left pocket…

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: [2014] NZHC 2335
Decision Date: 24 September 2014

CaseChat Overview and Summary

The High Court of New Zealand, Dunedin Registry, heard the appeal of Hemi Puriri against his sentence of two years and one month’s imprisonment imposed by Judge Phillips in the Dunedin District Court for assault using a wire dog cage as a weapon, wilful damage, and possession of cannabis. Puriri argued that Judge Phillips had erred in setting the starting point for his sentence, considering the victim as vulnerable, disregarding the victim's conduct, and taking the nature of the weapon as an aggravating feature. Puriri also contended that Judge Phillips had provided insufficient credit for his early guilty plea. Puriri submitted that these factors resulted in a sentence that was manifestly excessive.

The legal principles governing sentence appeals from the District Court to the High Court were considered. The Court of Appeal has confirmed that section 250 of the Criminal Procedure Act 2011 does not change the approach to sentence appeals. An appeal will only be allowed if there is an error in the sentence imposed and a different sentence should be imposed. The Court must then determine the appropriate sentence.

The court found that Judge Phillips had erred in assessing street violence as an aggravating feature and in characterising the strength of the other features he noted as aggravating. The court held that a starting point of 18 months’ imprisonment would have been appropriate, and after considering the totality of the offending and personal aggravating factors, the adjusted starting point should be 20 months’ imprisonment. The court found that the discount for Puriri’s guilty plea was justified, resulting in a sentence of 20 months’ imprisonment.

Accordingly, the appeal was allowed, and the sentence imposed by Judge Phillips was quashed. A sentence of 20 months’ imprisonment was substituted, and the other concurrent sentences and order for reparation remained in place. Home detention was not considered as an alternative as Puriri had a history of failure to obey Court orders.

Orders