Rawiri v The King - [2023] NZCA 104

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA708/2022
[2023] NZCA 104

BETWEEN	DANIEL RAWIRI Appellant
AND	THE KING Respondent

Court:	French, Dunningham and Cull JJ
Counsel:	A Y H Young for Appellant N J Wynne for Respondent
Judgment: (On the papers)	12 April 2023 at 10 am

JUDGMENT OF THE COURT

AThe application for leave to appeal is granted.
BThe appeal is to be allocated an urgent oral hearing before a divisional court in Wellington on 1 May 2023.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

Mr Rawiri was convicted in the District Court of three charges of breaching a sentence of intensive supervision as well as several driving and firearm offences. He was sentenced to a term of imprisonment of 27 months.[1]
[1]New Zealand Police v Daniel Rawiri [2022] NZDC 12444.
He now seeks leave to appeal his sentence. Leave is required because the proposed appeal would be a second appeal, Mr Rawiri having already unsuccessfully appealed to the High Court.[2]
[2]Rawiri v Police [2022] NZHC 2466.
In a minute dated 3 February 2023, Collins J directed that the issue of leave should be determined separately from the proposed substantive leave and on the papers.
The Crown opposes the application for leave.

Background

On 4 November 2020, Mr Rawiri was sentenced to 18 months’ intensive supervision and a term of community work. He was also disqualified from driving for 18 months. He breached the sentence of intensive supervision between January 2021 and March 2021 by failing to report on two separate occasions and by changing addresses without prior approval.
On 9 June 2021 Mr Rawiri was involved in a police chase after failing to stop while driving a stolen car. He weaved in and out of traffic and drove on the wrong side of the road. He was charged with various offences arising out of this incident and was granted bail.
While on bail, he committed further offending.
First on 15 July 2021, he discharged a sawn-off shotgun into the floor of a bedroom at his partner’s house. There were children present elsewhere in the house. Mr Rawiri was the only one in the bedroom and told other occupants that it was an accident.
Then on 19 July 2021 he was found as a passenger in another stolen car which also failed to stop when required by police. Mr Rawiri was aware he should not have been there.
A week later, he arrived at his partner’s home and told her to pack her baby daughter’s belongings as he considered the house wasn’t safe for the baby and he wanted to take her away with him. When the partner refused and other family members began to protest, Mr Rawiri threatened to kill them all. He also threatened to shoot his partner. At the time he made these threats, he did not have the shotgun with him. Subsequently, the police visited the home and found the shotgun…

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 The King

Details

AGLC: Rawiri v The King [2023] NZCA 104
Case: [2023] NZCA 104
Decision Date: 12 April 2023 at 10 am

CaseChat Overview and Summary

In the case of Rawiri v The King, Daniel Rawiri, the appellant, sought leave to appeal against his conviction and sentence imposed by the District Court. The respondent, The King, opposed the application for leave to appeal. The appeal was heard by the Court of Appeal of New Zealand, with French, Dunningham, and Cull JJ presiding over the case. The appellant was represented by counsel, A Y H Young, while the respondent was represented by N J Wynne. The court granted leave to appeal, and the appeal is scheduled for an urgent oral hearing before a divisional court in Wellington on 1 May 2023.

The primary legal issue before the court was whether leave to appeal should be granted in this case, considering that it was a second appeal, with the appellant having already unsuccessfully appealed to the High Court. The court considered the factors relevant to granting leave to appeal a second time, such as the potential for a miscarriage of justice and whether the appeal raised any issues of general or public importance. The court found that in this case, the grounds for leave to appeal had been met, as there was a possibility that a miscarriage of justice had occurred.

The court's reasoning in granting leave to appeal was based on two main factors. Firstly, the court found it arguable that a full discount for the guilty plea or something approaching a full discount was available to Mr Rawiri, despite the long delay between the charges being laid and his guilty plea. The court considered that the proceeding was significantly disrupted by the COVID-19 pandemic, which caused various adjournments, difficulties in counsel being able to communicate with Mr Rawiri, and significant delays in the prosecution providing disclosure. Secondly, the court found that Mr Rawiri was never given any discount for the approximately 10 months he spent on electronically monitored bail (EM bail) without incident. The court considered that this oversight should not be a barrier to leave, as the overriding test must always be the interests of justice.

The final orders of the court were to grant leave to appeal and to allocate the appeal for an urgent oral hearing before a divisional court in Wellington on 1 May 2023. The appeal will provide an opportunity to ventilate the arguments regarding the appropriate starting point for sentencing, the discount for the guilty plea, and the discount for the time spent on EM bail.

Orders