Sila v Police - [2012] NZHC 1982

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-157 [2012] NZHC 1982

RHYS DANIEL SILA
Appellant

v

NEW ZEALAND POLICE
Respondent

Hearing: 23 July 2012

Appearances: J Moroney for the appellant
S Locke for the respondent

Judgment: 8 August 2012

JUDGMENT OF CLIFFORD J

Introduction

[1] The appellant, Mr Rhys Sila, pleaded guilty to charges of burglary, threatening to kill, breach of intensive supervision and breach of community work. Mr Sila was sentenced by Judge Dawson in the District Court at North Shore on
24 April 2012 to 22 months’ imprisonment.[1] Mr Sila now appeals that sentence as

being manifestly excessive.

Mr Sila’s offending – facts

[1] R v Sila DC North Shore CRI-2011-044-007903, 24 April 2012.

[2] At about 11.35pm on Saturday 5 November 2011 Mr Sila was driven by associates to his former partner’s address at Snells Beach, where she and their seven

SILA v POLICE HC AK CRI-2012-404-157 [8 August 2012]

month old baby were asleep. Also asleep in her bed was a 17 year old friend who was visiting for the night and her six month old baby. Mr Sila entered the house through a closed and unlocked ranch slider door, went into his former partner’s bedroom and stood over her as she was sleeping. Mr Sila woke her up. At the time, Mr Sila was holding a black handled knife with a smooth blade some 10 to 15 centimetres long in his right hand in front of his body, clearly showing it to his former partner.

[3] Mr Sila asked his former partner who was sleeping next to her. She pulled the blankets back, showing Mr Sila that it was her friend. Mr Sila then said “You’re fucking lucky. I was going to go to jail and kill you tonight”.

[4] Mr Sila then walked into the bedroom where his daughter was sleeping. When informed by his former partner that the police had been called Mr Sila said: “If I ever see a guy here I am going to kill you and kill him”.

[5] Mr Sila then left the address with his associates.

[6] Those events gave rise to the charges of burglary and threatening to kill.

[7] On 16 August 2011, Mr Sila was sentenced to 185 hours’ community work following an earlier breach of a sentence of community work which had been imposed for unpaid fines. Having completed some 50 hours of that sentence, he failed to report on 5 October 2011. It appears he had lost his licence. He subsequently failed to report on two further occasions. These events gave rise to the breach of community work charge for which he was sentenced by Judge Dawson and
which he now appeals.[2]

[2] I note there is currently a lack of clarity around those convictions as neither of them appear on

Mr Sila’s New Zealand Police Criminal History, as they ought to. I issued a minute on 26 July

2012 asking for the position to be clarified by the Crown. 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 Sila v Police

Details

AGLC: Sila v Police [2012] NZHC 1982
Case: [2012] NZHC 1982
Decision Date: 8 August 2012

CaseChat Overview and Summary

In the High Court of New Zealand, Rhys Daniel Sila appealed against the sentence imposed by Judge Dawson in the District Court at North Shore on 24 April 2012. Sila had pleaded guilty to charges of burglary, threatening to kill, breach of intensive supervision, and breach of community work, for which he was sentenced to 22 months’ imprisonment. The central issue was whether the sentence was manifestly excessive. The court had to assess the appropriateness of the end sentence and consider the totality of Sila's offending, including the burglary and threatening to kill charges, as well as the breach charges.

The court reviewed the facts of the case and the legal principles governing sentencing for burglary and threatening to kill offences. It determined that Sila's offending could be considered either as threatening to kill or as burglary, with aggravating factors such as unlawful entry into a domestic dwelling at night and the presence of a weapon. The court assessed the starting point sentences for each type of offence and concluded that a starting point of 22 months was appropriate. However, the court found that the cumulative uplift for the breach charges was excessive, as the breaches were relatively minor and there was no significant history of similar offending. After applying a 25 per cent discount for Sila's guilty pleas, the court determined that an appropriate sentence would be 18 months’ imprisonment.

The appeal was allowed, and the sentence of 22 months’ imprisonment was quashed. In its place, the court substituted concurrent sentences of 18 months’ imprisonment for the burglary and threatening to kill charges, and one month’s imprisonment for each of the breach charges. This decision ensures that the sentence is within the appropriate range and reflects the totality of Sila's offending.

Orders