Rawiri v Police - [2019] NZHC 1085

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2019-409-46

[2019] NZHC 1085

BETWEEN
ERNEST SAMUEL RAWIRI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 16 May 2019

Appearances:

J Tupaea for Appellant

K Courteney for Respondent

Judgment:

17 May 2019

JUDGMENT OF MANDER J

[1] The appellant, Ernest Rawiri, pleaded guilty to charges of burglary and breach of community work after receiving an indicated sentence of 14 months’ imprisonment for the burglary. Judge Couch sentenced him to 15 months’ imprisonment on both charges. Mr Rawiri appeals his sentence on the basis the Judge erred in not substituting a sentence of home detention.

Facts

[2] At about 7.30 am on 10 December 2018, Mr Rawiri and his son entered a vacant address without authority. The appellant cut the pipes of a heat pump unit at the address with bolt cutters in order to remove it. His son entered a garage at the rear of the property and took a container of builders’ putty. The pair were disturbed and left the address without taking the heat pump. They were located nearby by police.

RAWIRI v NEW ZEALAND POLICE [2019] NZHC 1085 [17 May 2019]

[3] The charge of breaching community work arose from Mr Rawiri’s previous sentence of 70 hours’ community work. On 22 September 2018 the appellant failed to attend community work as directed. Community Corrections advised that he had not reported for community work since 15 September, despite attempts to reengage with him. Mr Rawiri still had 23 hours of community work to serve.

District Court decision

Sentence indication

[4] Judge Couch’s sentence indication was for the charge of burglary alone. The Judge considered the aggravating features of the offending were that the address was a dwelling house (though unoccupied at the time) and that significant damage was done to the heat pump. He found it a mitigating factor that the offending appeared to be opportunistic, which might be thought generous given he had bolt cutters in his possession. Judge Couch adopted a starting point of 12 months’ imprisonment.

[5] An uplift of six months was applied for personal aggravating features. These included the appellant being subject to a sentence at the time of the offending and his extensive criminal history. Judge Couch then allowed a four month discount for a guilty plea, arriving at an indicated end sentence of 14 months.

[6] His Honour then raised the issue of home detention. He stated he did not rule that possibility out, but would wish to see a pre-sentence report and evidence of a suitable address where the home detention could be served before making a decision.

Sentencing judgment

[7] At sentencing Judge Couch adopted the reasoning set out in his sentence indication decision and applied an uplift of one month for the breach of community work. The Judge then considered whether home detention would be an appropriate alternative to imprisonment. He referred to a letter the appellant had provided that contained expressions…

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 Rawiri v Police

Details

AGLC: Rawiri v Police [2019] NZHC 1085
Case: [2019] NZHC 1085
Decision Date: 17 May 2019

CaseChat Overview and Summary

The appellant, Ernest Rawiri, appealed against his sentence of 15 months imprisonment for burglary and breach of community work. The District Court Judge had sentenced Rawiri to 15 months imprisonment after initially indicating a sentence of 14 months imprisonment for the burglary charge alone. Rawiri argued that the sentencing Judge should have imposed a sentence of home detention instead of imprisonment. The appeal was heard and dismissed by the High Court.

The key legal issues were whether the sentencing Judge erred in not imposing a sentence of home detention and whether the sentence imposed was manifestly excessive or unjustifiable upon the application of the relevant sentencing principles. The court had to determine whether Rawiri had demonstrated an error in the Judge's approach or that the sentence was manifestly excessive.

The High Court found that the sentencing Judge did not err in declining to impose a sentence of home detention. The Judge considered Rawiri's expressed remorse but found his account in the pre-sentence report to be not credible. The Judge also took into account Rawiri's extensive criminal history and likelihood of reoffending. The High Court held that the sentence imposed was within the range that could be properly justified and was not manifestly excessive. The appeal was dismissed.

The final orders were that the appeal against sentence was dismissed. No further appeal lies to the Court of Appeal.

Orders