Riki v Police - [2013] NZHC 282

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2012-463-000077 [2013] NZHC 282

PIKI TANE RIKI
Appellant

v

NEW ZEALAND POLICE
Respondent

Hearing: 4 February 2013

Counsel: R Vigor-Brown for Appellant
A Hill for Respondent

Judgment: 21 February 2013

JUDGMENT OF KEANE J

This judgment was delivered by on 21 February 2013 at 2.15pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar
Date:

Solicitors:
R Vigor-Brown, Rotorua
Crown Solicitor, Rotorua

PIKI TANE RIKI V NEW ZEALAND POLICE HC ROT CRI 2012-463-000077 [21 February 2013]

[1] On 19 December 2012, Piki Riki, aged 21, was sentenced to four months imprisonment for two offences on 30 September 2012, alleged to have been committed in the company of five others: possessing an offensive weapon, and intentionally damaging a Mitsubishi utility. One of the other five was also charged with, and has admitted to, injuring with intent.

[2] On sentence Judge McGuire accepted that Mr Riki's part in this offending might well have been less serious than that of others, and that he had the advantage of personal mitigating factors. But he had offended close to young and terrified children, and that aggravated his offence. Nothing less than a sentence of imprisonment would serve the purposes of denunciation and deterrence.

[3] On this appeal Mr Riki contends that his sentence is manifestly excessive because (i) the Judge saw denunciation and deterrence as the only relevant purposes of sentence, leaving out of account the others that were relevant; and (ii) the Judge did not consider whether all the relevant purposes of sentence might have been served by a less restrictive sentence, in particular home detention.

[4] Mr Riki also contends that his sentence is excessive on the ground of disparity. A 15 year old boy, on the other side of the fracas, who has admitted to wounding with intent to injure, while driving the Mitsubishi utility that was damaged, is likely to be discharged without conviction in the Youth Court.

[5] It is contended for the respondent that the sentence the Judge imposed, four months imprisonment from a six month starting point, was within his discretion and is not manifestly excessive. But before coming to that, the issue on this appeal, I need first to confirm that at the date of this decision Mr Riki's sentence of imprisonment remains extant.

Status of sentence

[6] On 19 December 2012, after he had sentenced Mr Riki, the Judge signed a warrant of commitment, and that fixed that date as the start date of his sentence.1 On

1 Sentencing Act 2002, s 91; Parole Act 2002, s 77.

20 December 2012, when Mr Riki brought this appeal, he applied for bail, which the Judge granted him until the date of this appeal, 4 February 2012. He was not asked to and he did not defer the start date of Mr Riki's sentence.2 Mr Riki remains on bail at the date of this decision.

[7] Sentenced as he was to a short-term sentence…

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 Riki v Police

Details

AGLC: Riki v Police [2013] NZHC 282
Case: [2013] NZHC 282
Decision Date: 21 February 2013

CaseChat Overview and Summary

Piki Riki was sentenced to four months imprisonment for possessing an offensive weapon and damaging a Mitsubishi utility. The sentence was imposed by Judge McGuire, who accepted that Mr Riki's role in the offending was less serious than that of others involved but found that his actions had exposed young children to violence. On appeal, Mr Riki contended that his sentence was manifestly excessive as the Judge had focused solely on the purposes of denunciation and deterrence and had not considered whether a less restrictive sentence, such as home detention, could achieve the same objectives. The court held that Mr Riki's two offences, though they carried the potential for actual violence, were not of the most serious order and would ordinarily warrant a community-based sentence. The court found that the Judge had failed to identify why imprisonment was necessary and had sentenced on a fixed policy inconsistent with his statutory discretion. As a result, the sentence was set aside, and Mr Riki was sentenced to 200 hours of community work, six months of community detention, and nine months of supervision, subject to special conditions.

The final orders of the court were that Mr Riki was to serve his community detention sentence at 99 Koutu Road, Rotorua, and be curfewed every night between 7pm and 7am. He was also to report to a probation officer as directed and undertake a Tikanga Maori program and a drug and alcohol program, in each instance to the satisfaction of his supervising officer and the program provider.

Orders