Tere v Police - [2012] NZHC 174

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-000461 [2012] NZHC 174

TERENCE MARIO TERE
Appellant

v

NEW ZEALAND POLICE
Respondent

Hearing: 9 February 2012

Counsel: J L Holden for the Appellant
L J Clancy for the Respondent

Judgment: 17 February 2012

JUDGMENT OF DUFFY J

This judgment was delivered by Justice Duffy on 17 February 2012 at 3.00 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors: Public Defence Service P O Box 76715 Manukau City Manukau 2241 for the
Appellant
Meredith Connell P O Box 2213 (DX CP24063) Shortland Street
Auckland 1140 for the Respondent

TERE v POLICE HC AK CRI-2011-404-000461 17 February 2012

[1] The appellant, Mr Tere, appeals against concurrent sentences totalling 10 months’ imprisonment, which were imposed on him following his conviction on charges of:

(i) Assault of a child;

(ii) Male assault on female; and

(iii) Wilful damage.

[2] The appellant contends that the sentences are manifestly excessive and that the sentencing Judge erred in failing to exercise her discretion to impose an electronically monitored sentence of home detention. The appeal is opposed.

Facts

[3] On 25 May 2011, the appellant, who is a 24 year-old male, was at the address of his partner and children. When his 11-month-old daughter began to cry, the appellant hit her upper body five times by swinging a cushion forcefully from above his head. When the child eventually started to struggle to breathe, the appellant rolled her onto her back and hit her twice more in the face, in the same manner. The appellant told the police that he hit the baby because he was angry that she was crying.

[4] When the appellant’s partner intervened, the appellant pushed her forcefully twice while she was holding the baby. The appellant punched his partner in the mouth when she tried to put the baby in the car, and again after she got into the car. The appellant and his partner continued to argue. The appellant then punched the glass ranchslider in the garage, and punched his partner several more times. When she tried to call the police, the appellant grabbed her cellphone and smashed it against the driveway.

[5] The baby had minor red marks, but no bruising. The appellant’s partner suffered a swollen and split lip. Neither required medical treatment. Reparation was sought for both the phone and the ranchslider.

Personal Circumstances

[6] The appellant has significant previous convictions, 10 of which involve violence, drugs and driving offences. In particular, he has a conviction for male assault on female in 2006. His most serious (and recent) conviction is being an accessory after the fact to murder.

[7] Though the District Court sentencing notes indicate that the appellant’s offending occurred at a time when he was still subject to a sentence of home detention, that is incorrect. It is accepted that the offending occurred some four months after the sentence of home detention had expired, though the appellant was still subject to…

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 Tere v Police

Details

AGLC: Tere v Police [2012] NZHC 174
Case: [2012] NZHC 174
Decision Date: 17 February 2012

CaseChat Overview and Summary

The appellant, Mr Tere, appeals against concurrent sentences totalling 10 months’ imprisonment, which were imposed on him following his conviction on charges of assault of a child, male assault on female, and wilful damage. The appellant contends that the sentences are manifestly excessive and that the sentencing Judge erred in failing to exercise her discretion to impose an electronically monitored sentence of home detention. The appeal is opposed.

The court was required to decide whether the sentences imposed were manifestly excessive and whether the sentencing Judge should have granted an electronically monitored sentence in substitution of the prison sentences. The court considered whether the end sentence of 10 months’ imprisonment was manifestly excessive and whether the sentencing Judge should have granted an electronically monitored sentence.

The court found that the end point of 10 months’ imprisonment was unimpeachable and that the appellant had failed to satisfy the court that the sentences imposed were manifestly excessive. The court also found that the sentencing Judge was acting within her discretion to not grant an electronically monitored sentence, given the offender’s considerable criminal record, and the pre-sentence report writer’s caution against accepting the offender’s remorse and regret at face value (due to the repetitive nature of his violent offending). The court found that the sentencing Judge had properly exercised her discretions under the Sentencing Act.

The appeal is dismissed.

Orders