Reihana v Police - [2020] NZHC 1786

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2020-463-57

[2020] NZHC 1786

BETWEEN MARK PETER BENNY MAIKA REIHANA
Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 22 July 2020 (Heard at Tauranga)

Appearances:

R E Nabney for the appellant S J Revell for the respondent

Judgment:

22 July 2020

ORAL JUDGMENT OF PALMER J

Counsel/Solicitors:
R E and W T Nabney, Barristers, Tauranga Pollett Legal, Crown Solicitor, Tauranga

REIHANA v NEW ZEALAND POLICE [2020] NZHC 1786 [22 July 2020]

What happened?

[1] On 7 August 2019, Mr Mark Reihana, aged 38, had been in a relationship with his partner for about two years. She was 12 weeks pregnant. That day, he became angry trying to get belongings out of a jammed wardrobe door. He followed his partner into the kitchen and kicked the dining table over. He picked up a table leg which had broken off and threw it at his partner, hitting her lower leg and leaving a large red mark on her shin. She managed to get outside. As he left, Mr Reihana told her “you just wait bitch I’m gonna fucking kill you.” Throughout the day, he texted her saying “Touch my shit bitch and I’ll kick your head in” and “Fuck you, your dead bitch” and “fuck off bitch you wonder why I want to smash your face in”. The next morning, his partner found him asleep on the couch and, after another argument, called the Police and asked him to leave. Before leaving he said “you wait, I’m gonna get you, I’m gonna kill you.”

[2] On 14 February 2020, Mr Reihana was on bail with conditions not to associate with, or have any contact, with his partner. Yet he turned up at her address and took her and her children, including the baby they have together, for a drive. After dropping off her older children at kindergarten, Mr Reihana got into an argument with his partner. He told her he was going to smash her head in and that she had it coming. He yelled at her and called her abusive names.

[3] Mr Reihana pleaded guilty to assault with a weapon, threatening to kill and wilful damage in relation to the August 2019 offending and speaking threateningly in February 2020. These offences are punishable by maximum sentences of imprisonment of five years, seven years, three months and three months’ respectively. Mr Reihana has a significant criminal history dating back to 1999. Before the present offending, he had been convicted of five violent offences in the last five years, including for male assaults female and common assault. There had been two recorded previous family harm incidents between Mr Reihana and his partner before these incidents.

[4] On 12 June 2020, in the Tauranga District Court, Judge T R Ingram sentenced Mr Reihana to one year and eight months’ imprisonment.1 He set a starting point of 15 months for the lead charge and uplifted that by…

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: [2020] NZHC 1786
Decision Date: 22 July 2020

CaseChat Overview and Summary

Mark Peter Benny Maika Reihana, the appellant, has appealed against his sentence imposed by the Tauranga District Court for multiple offences including assault with a weapon, threatening to kill, and wilful damage, arising from incidents involving his partner. The appeal was heard and determined by Palmer J in the High Court of New Zealand. The central issue for the court was whether the sentence imposed by the District Court contained a material error warranting an appeal under section 250 of the Criminal Procedure Act 2011. Specifically, the court needed to assess whether the starting point and subsequent uplifts and discounts applied by the District Court were justified and proportionate.

The court examined whether the starting point for the assault with a weapon charge was appropriately set by the District Court. It considered factors such as the fleeting use of a weapon, the lack of premeditation, and the relatively minor nature of the injuries sustained. While acknowledging the victim's vulnerability due to her pregnancy, the court concluded that the starting point should have been lower than that determined by the District Court. Furthermore, the court found the uplift for previous convictions to be excessive and reduced the uplift from six months to three months. The court upheld the two-month uplift for the February 2020 offence as appropriate. Following the recent Court of Appeal decision in Moses v R, the court adjusted the discount for the guilty plea to be applied from the starting point rather than the total sentence.

Palmer J upheld the appeal and set aside the sentence of one year and eight months’ imprisonment imposed by the District Court. The court imposed a new sentence of one year and two months’ imprisonment. The special release conditions outlined in the pre-sentence report by the District Court remained unchanged.

Orders