Tairi v Police - [2015] NZHC 187

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2014-419-000039 [2015] NZHC 187

BETWEEN
DANIEL TEONE TAIRI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 3 February 2015

Counsel:

G D Prentice for the Appellant
J E Tarrant for the Respondent

Judgment:

17 February 2015

JUDGMENT OF DUFFY J [re Appeal Against Sentence]

This judgment was delivered by Justice Duffy on 17 February 2015 at 4.30 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors: Public Defence Service (Ministry of Justice), Hamilton
Almao Douch, Hamilton

TAIRI v POLICE [2015] NZHC 187 [17 February 2015]

[1] Mr Tairi appeals against a cumulative sentence of imprisonment of two years and eight months. The appeal is opposed.

[2] Mr Tairi faced two charges of assaulting his partner with intent to injure. For those offences, he accepted a sentence indication of 11 months’ imprisonment from Judge M L S Burnett and pleaded guilty to those charges. While on bail pending sentence, he committed further offences: (a) burglary of a dwelling-house; and (b) driving whilst suspended third or subsequent offence. He pleaded guilty to those offences as well.

[3] At sentencing, Judge Burnett imposed the sentence of 11 months’ imprisonment for the assault with intent to injure charges. For the burglary charges, she imposed an additional cumulative sentence of 21 months’ imprisonment. This sentence was reached by Judge Burnett adopting a starting point of 16 months’ imprisonment, which she then uplifted by 12 months to take account of aggravating factors relating to Mr Tairi. After allowance was made for his early guilty plea, the burglary sentence was reduced to 21 months. Regarding the offence of driving whilst suspended, third or subsequent offence, he received a sentence of two weeks’ imprisonment, which ran concurrently with the burglary sentence. Both offences were committed on the same date, and the Judge was of the view that Mr Tairi had driven unlawfully to get to and from the house that he burgled.

[4] Mr Tairi makes no complaint regarding the 11 months’ imprisonment that he received for the assault with intent to injure offences, or the sentence for the driving offence. Regarding the sentence for the burglary offence, he makes two complaints. First, he contends that the uplift imposed for his personal aggravating factors was excessive and has led to a material error in the sentencing, with the result that the sentence is manifestly excessive. Secondly, he contends that the imposition of cumulative sentences has resulted in a sentence wholly out of proportion to the overall gravity of offending and, therefore, contrary to the “totality” principle.

Factual background

Assault with intent to injure offences

[5] At about 10.30 am on 25 April 2014, Mr Tairi arrived at the house where he lived with his partner of 10 years and their four children. Mr Tairi grabbed his partner (the victim) and dragged her into the house and up the stairs. He then threw the victim onto the bed and punched her several times in the…

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.

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Details

Case: [2015] NZHC 187
Decision Date: 17 February 2015

CaseChat Overview and Summary

The appellant, Daniel Tairi, appeals against a cumulative sentence of imprisonment of two years and eight months, imposed by Judge Burnett in the District Court. The appellant was sentenced for two charges of assault with intent to injure, one charge of burglary, and one charge of driving while disqualified, third or subsequent offence. The appellant argues that the uplift for personal aggravating factors was excessive, resulting in a manifestly excessive sentence, and that the cumulative sentence resulted in a sentence wholly out of proportion to the overall gravity of the offending. The appeal is opposed by the respondent. The Court considers the appropriate starting point for the burglary offence, taking into account the appellant's previous convictions and offending while on bail. The Court considers the appropriate uplift for the personal aggravating factors, and whether the cumulative sentence offends the totality principle. The Court finds that the starting point for the burglary offence was appropriate, but that the uplift for the personal aggravating factors was excessive. The Court finds that the cumulative sentence does not offend the totality principle, but that the overall sentence is manifestly excessive. The Court allows the appeal, reduces the sentences for the assault and burglary charges, and imposes a total sentence of two years and three months' imprisonment, to be served cumulatively. The sentence for the driving offence remains unchanged.

Orders