Silao v Police - [2014] NZHC 3303

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2014-404-000354 [2014] NZHC 3303

BETWEEN
PETERO SILAO

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 16 December 2014

Appearances:

B Murphy for the Appellant
L M Mills for the Respondent

Judgment:

18 December 2014

[RESERVED] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 18 December 2014 at 11.00 am
Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

SILAO v POLICE [2014] NZHC 3303 [18 December 2014]

Introduction

[1] On 5 September 2014, the appellant, Mr Silao, was sentenced to 15 months’ imprisonment on one charge of assault using a blunt instrument as a weapon under s 202C of the Crimes Act 1961 by Her Honour Judge L Tremewan. Mr Silao had pleaded guilty to the charge.

[2] The maximum penalty available in respect of a charge under s 202C is five

years’ imprisonment.

[3] Mr Silao has appealed against the sentence imposed on him.

Relevant Facts

[4] The summary of facts, to which Mr Silao pleaded guilty, records that he was at his home on 13 July 2014. The victim, Mr Silao’s daughter, arrived at the address. She had been out for the night. A verbal argument ensued between Mr Silao and the victim. The argument became very heated. Mr Silao picked up an iron and hit the victim on her back. He then started pulling the victim’s hair. The victim received a scratch on the right side of her face. She had to be taken to hospital for medical attention.

[5] When Mr Silao was spoken to by the police, he stated that he gave the victim “a hiding” for coming home late, not answering her phone, and not replying to his text messages.

[6] Mr Silao made his first appearance on 14 July 2014. He pleaded guilty at his second appearance in the family violence list on 16 July 2014 – only two days later. He was not represented at the time, but he confirmed to the Court that he wished to enter a guilty plea nevertheless.

[7] Mr Silao appeared on 5 September 2014 for sentence. He was represented at the sentencing hearing by assigned counsel from the Public Defence Service.

Judge Tremewan’s Sentencing Notes

[8] Judge Tremewan detailed the nature of Mr Silao’s offending. She noted a submission made on Mr Silao’s behalf that he and his wife were upset and worried about their daughter, because she had not come home when she was supposed to. The Judge, however, noted that the fact that Mr Silao was angry, upset, or worried, was no excuse for the assault which he perpetrated on his daughter. She referred to the victim impact statement in which the daughter said that Mr Silao had “given her a hiding”. She noted that the victim had to go to hospital to make sure that no bones were broken, and that she was fearful of the fact that Mr Silao might attack her again.

[9] Judge Tremewan…

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 Silao v Police

Details

AGLC: Silao v Police [2014] NZHC 3303
Case: [2014] NZHC 3303
Decision Date: 18 December 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Mr. Petero Silao appealed against the sentence imposed on him by Judge L Tremewan for assaulting his daughter with an iron, causing her to be hospitalised. The court was required to determine whether the sentence was excessive and whether the sentence imposed should be altered. The court found that the sentence was excessive and, as such, reduced the sentence to 11 months’ imprisonment.

The court considered the relevant facts of the case, including the nature of the offending and the victim impact statement. The court noted that Mr. Silao had a concerning criminal history involving violence-related offences, and that he had not changed his ways despite completing a rehabilitation programme. The court considered the principles of sentencing, including the need to hold Mr. Silao accountable for what he had done and the need to denounce his conduct.

The court found that the starting point adopted by Judge Tremewan was too high and that the sentence imposed was excessive. The court found that a more appropriate starting point would have been 12 months’ imprisonment. However, the court found that Mr. Silao’s extensive criminal history justified an uplift of three months. The court found that Mr. Silao was not entitled to a discount for turning up to the rehabilitation programme, as he had treated the programme with contempt. The court found that Mr. Silao was entitled to a full discount for his early guilty plea, which equated to 25 percent of the sentence which would otherwise have been imposed.

The appeal was allowed in part, and Mr. Silao’s sentence was reduced to a sentence of 11 months’ imprisonment. In all other respects, Judge Tremewan’s decision stood and the appeal was declined.

Orders