Riley v The King - [2023] NZHC 124

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2022-087-000369

[2023] NZHC 124

BETWEEN
MAIHI RILEY

Appellant

AND

THE KING

Respondent

Hearing: 2 February 2023

Appearances:

A McPherson for the Appellant A Maino for the Respondent

Judgment:

8 February 2023

JUDGMENT OF HARVEY J

This judgment was issued by me on 8 February 2023 at 3.30pm.

…………………………… (Deputy) Registrar

Solicitors:
McPherson Law, Taupō
Gordon Pilditch, Office of the Crown Solicitor, Rotorua

RILEY v R [2023] NZHC 124 [8 February 2023]

Introduction

[1] On 28 November 2022, Judge Hollister-Jones in the District Court at Rotorua sentenced Maihi Riley to six months’ home detention after he pleaded guilty to one charge of strangulation.1 The Judge also issued a protection order in favour of the complainant. Mr Riley appeals both the sentence of home detention and the imposition of the protection order.

Background

[2] The appellant pleaded guilty on the basis of an agreed summary of facts. This records that the appellant and the complainant recently separated after a relationship of approximately seven years. The pair have three children together under the age of six, who were present at the time of the offending.

[3] On 28 March 2022, the appellant arrived uninvited to the complainant’s address in Taupō. She asked him to leave but he was too intoxicated to drive. The complainant then retired to her bedroom. At some point the appellant followed. An argument ensued and the appellant ended up straddling the complainant and placed both of his hands around her throat. He proceeded to squeeze with enough force to prevent her from breathing for approximately 10 seconds. The complainant panicked and attempted to lash out at the appellant. The complainant’s mother then entered the bedroom and intervened.

[4] The complainant sustained redness and extreme tenderness to her throat as a result. She also had pain in her shoulder.

District Court decision

[5] The Judge identified the principal aggravating features of the offending as being the breach of trust, the complainant’s vulnerability, and the duration of the

1 R v Riley [2022] NZDC 23583. Crimes Act 1961, s 189A(b). Maximum penalty 7 years’ imprisonment.

strangulation.2 The Judge considered an appropriate starting point to be two years’ imprisonment.

[6] The Judge then applied a 10 per cent discount for previous good character, and a five per cent discount for factors identified in the pre-sentence report regarding the appellant’s background.3 The Judge went on to apply a further five per cent discount for the appellant’s rehabilitative efforts thus far, and a 20 per cent discount for his guilty plea.4 These discounts totalled 40 per cent and brought the sentence down to 14 months.

[7] The Judge lastly applied a discount of two months to reflect the time spent on restrictive bail.5 This led to an end sentence to 12 months’ imprisonment, which was commuted to a sentence of six months’ home detention.

[8]The reasons for the Judge’s decision are summarised as follows:

[18] I…

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 Riley v The King

Details

AGLC: Riley v The King [2023] NZHC 124
Case: [2023] NZHC 124
Decision Date: 8 February 2023

CaseChat Overview and Summary

In Riley v The King, Maihi Riley appeals against a sentence of six months’ home detention imposed by the District Court for strangulation, as well as the imposition of a protection order. The District Court Judge had identified the breach of trust, the complainant’s vulnerability, and the duration of the strangulation as principal aggravating features. After applying various discounts, the Judge imposed a sentence of six months’ home detention. Ms McPherson, counsel for the appellant, argues that the end sentence was manifestly excessive, as the discounts were insufficient and home detention was not the least restrictive outcome. Ms McPherson also contends that the prerequisites to the making of a protection order under s 123B(2) of the Sentencing Act 2002 were not met. Ms Maino, counsel for the respondent, submits that the end sentence was appropriate, as were the discounts. Ms Maino argues that even if the Court were to adopt greater discounts, it was open to the Judge to select a higher starting point of two and a half years’ imprisonment based on the categories in Shramka v R, therefore the end sentence cannot be seen as manifestly excessive. Ms Maino further submits that the Judge was entitled to find that the principles of deterrence and denunciation required a sentence of home detention and that the protection order can simply act as a mechanism to prevent reoffending if and when required.

The court found that the appellant should not have received the full 25 per cent discount for his guilty plea. The court also found that the Judge should not have given a greater discount for previous good character or for remorse. The court was not satisfied that the sentence imposed was manifestly excessive due to the claimed discount deficiencies and that home detention was the least restrictive sentence that could have been imposed. The court found that the protection order can be cancelled if the complainant considers that it will no longer serve any useful purpose and may in fact cause practical challenges with child care arrangements. However, until then, the order should remain in place for the reasons articulated by Ms Maino. The court concluded that the appeal must accordingly be dismissed.

Orders