Santamaria v Police - [2016] NZHC 1369

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000127
CRI-2016-404-000128

CRI-2016-404-000129 [2016] NZHC 1369

BETWEEN
LORENZO SANTAMARIA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 20 June 2016

Appearances:

C M Wright for Appellant
H G Clark for Respondent

Judgment:

22 June 2016

JUDGMENT OF GILBERT J

This judgment is delivered by me on 22 June; 2016 at 4.30 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Solicitors:
Wright Wiseman Law, Auckland
Merediths, Auckland

SANTAMARIA v NEW ZEALAND POLICE [2016] NZHC 1369 [22 June 2016]

Introduction

[1] Mr Santamaria pleaded guilty to indecent assault of a person under 16, two charges of theft (over $1,000), one charge of theft (under $500), and one charge of receiving. He was convicted of these offences and sentenced by Judge Aitken in the Auckland District Court to 19 months’ imprisonment.1

[2] Mr Santamaria appeals against this sentence arguing that it is manifestly excessive. He contends that a sentence of home detention ought to have been imposed as the least restrictive outcome appropriate in the circumstances. He also argues that the Judge ought to have given credit for remorse and placed greater emphasis on the probation officer’s assessment that Mr Santamaria would have a low risk of re-offending if he addressed his rehabilitative needs.

Facts

[3] Mr Santamaria previously occupied a self-contained area in the basement of the home where the victim and her family resided. He moved there in July 2013 and became friendly with the family.

[4] On 29 September 2013, the victim asked her mother and Mr Santamaria if she could go downstairs to watch a movie on Mr Santamaria’s newly purchased
55 inch television. While watching the movie, Mr Santamaria told her to lie down and put her feet up. He then began massaging her feet and moved his hands up to massage her legs. He then moved his hands up the victim’s body and rubbed her stomach, chest and breasts. The victim panicked and froze in fear. Mr Santamaria then moved his hands down to the victim’s vaginal area on the outside of her pyjama pants. He pressed his thumb firmly against the victim’s vagina and rubbed it in a circular motion for one to two minutes. The victim made an excuse to leave and ran upstairs to inform her parents.

[5] Mr Santamaria left the address before he could be questioned about the incident. He returned to the address on 1 October 2013 but was refused entry to the

1 New Zealand Police v Santamaria [2016] NZDC 6647.

property. He then departed New Zealand for Singapore on 3 October 2013. He returned to New Zealand on 18 March 2015 whereupon he was arrested.

[6] The victim has been badly affected by Mr Santamaria’s offending and has suffered considerable emotional harm. She has trouble sleeping, suffers from panic attacks and her school work was affected. She no longer feels safe leaving her house and finds it very hard to trust anyone.

[7] In…

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 Santamaria v Police

Details

AGLC: Santamaria v Police [2016] NZHC 1369
Case: [2016] NZHC 1369
Decision Date: 22 June 2016

CaseChat Overview and Summary

Lorenzo Santamaria appealed against the sentence of 19 months' imprisonment imposed by Judge Aitken in the Auckland District Court for his convictions of indecent assault, theft, and receiving stolen property. Santamaria argued that the sentence was manifestly excessive and that a sentence of home detention should have been imposed instead. He also contended that the Judge should have allowed a discount for remorse and placed greater emphasis on the probation officer's assessment that he had a low risk of re-offending if he addressed his rehabilitative needs. The legal issues were whether the Judge erred in not allowing a discount for remorse or other personal factors, and whether the Judge erred in not commuting the sentence to one of home detention. The Court found that the Judge was entitled to be sceptical about Santamaria's expressions of remorse, as he had fled the country and only pleaded guilty shortly before sentencing. The Judge also appropriately considered the probation officer's assessment and imposed release conditions tailored to Santamaria's rehabilitative needs. The Court held that a sentence of imprisonment was required to meet the purposes of sentencing in this case, particularly those of accountability, denunciation, and deterrence. All grounds of appeal were dismissed and the appeal was dismissed.

Orders