Teriaki v The King - [2024] NZHC 1440

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2024-409-53

[2024] NZHC 1440

BETWEEN
DILLON JOEL APERHAMA TERIAKI

Appellant

AND

THE KING

Respondent

Hearing: 30 May 2024

Appearances:

P N Allan for the Appellant

B W D Alexander for the Respondent

Judgment:

31 May 2024

JUDGMENT OF HARLAND J

Introduction

[1] This judgment determines an appeal by Dillon Joel Aperhama Teriaki against a sentence of three years and nine months’ imprisonment imposed on him by Judge A A Couch in the District Court at Christchurch on 1 March 20241 in respect of two charges of impeding breath,2 one charge of assault on a person in a family relationship3 and one charge of threatening to kill.4 Mr Teriaki contends that the starting point adopted by the Judge was too high and the Judge made a factual error in setting the uplift to reflect aggravating factors personal to him. He says the combination of these errors led to a manifestly excessive sentence.

1      Police v Teriaki [2024] NZDC 4377.
2      Crimes Act 1961, s 189A. Maximum penalty: seven years’ imprisonment.
3      Crimes Act 1961, s 194A. Maximum penalty: two years’ imprisonment.
4      Crimes Act 1961, s 306. Maximum penalty: seven years’ imprisonment.

TERIAKI v R [2024] NZHC 1440 [31 May 2024]

[2]I have decided to allow the appeal for the reasons set out in this judgment.

The facts

[3] As Mr Teriaki pleaded guilty to the charges, the factual basis upon which he was sentenced comes from an amended summary of facts, the important details of which I now outline.

[4] At the time of this offending, Mr Teriaki and his partner were living together and had been in a relationship for about three years. Late in the evening of 30 July 2023, they were in bed when they began arguing. Mr Teriaki held a pillow over his partner’s nose and mouth with force, preventing her from breathing for three to four seconds. She fought back, scratching his face, to get him off her.

[5] The following morning, there was another argument. Mr Teriaki pushed his partner in the chest with both hands and she fell to the ground. She then climbed onto the bed to get away from him, but he grabbed a pillow and again forcefully held it over her nose and mouth, preventing her from breathing for three seconds. She fought back, scratching at his face and once more succeeded in getting him off her.

[6] Mr Teriaki then flung the contents of a 1.5 litre bottle of water at his partner and, when it was empty, he hit her with the bottle three times across her chest. He then picked up a cup of hot coffee and threw it at her, burning her arm.

[7] After this, Mr Teriaki picked up a 10 centimetre long butcher’s knife and waved it towards his partner while she was standing three metres away from him and said “I will fucking kill you”. He…

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 Teriaki v The King

Details

AGLC: Teriaki v The King [2024] NZHC 1440
Case: [2024] NZHC 1440
Decision Date: 31 May 2024

CaseChat Overview and Summary

In Teriaki v The King, the appellant, Dillon Joel Aperhama Teriaki, appealed against a sentence of three years and nine months’ imprisonment imposed by Judge A A Couch in the District Court at Christchurch. The sentence was in respect of two charges of impeding breath, one charge of assault on a person in a family relationship, and one charge of threatening to kill. Mr Teriaki argued that the starting point adopted by the Judge was too high and that the Judge made a factual error in setting the uplift to reflect aggravating factors personal to him. He contended that the combination of these errors led to a manifestly excessive sentence.

The court considered whether the starting point adopted by the Judge was within the appropriate range and comparable to other cases of similar offending. The court found that the starting point of four years adopted by the Judge was out of range. In the court's view, the appropriate range would have been between three and three and a half years. A starting point of three years and three months’ imprisonment would have been more appropriate, reflecting the fact that the suffocation incidents were brief and did not render the victim unconscious, but also recognising the very serious threat to kill, associated violence, and that the victim was only able to release herself because she managed to fight off Mr Teriaki.

The court also considered whether the Judge made a factual error when setting the uplift. The court agreed with the District Court Judge that an uplift for personal aggravating factors was appropriate, but an uplift of 10 per cent was at the very highest end of the appropriate scale. The court concluded that the uplift and guilty plea discount applied by the Judge balance each other out and, for this reason, did not propose to adjust the uplift figure.

The court concluded that the end sentence imposed on the lead charges was beyond the available range and thus manifestly excessive. The appeal was allowed as it related to the starting point. The starting point of four years’ imprisonment was reduced to one of three years and three months’ imprisonment. The end sentence on the two charges of impeding breath and the charge of threatening to kill was reduced to one of three years and one month’ imprisonment. The court did not adjust the end sentence imposed by the District Court Judge on the charge of assault nor his conclusion that all of the sentences were to be served concurrently.

Orders