Tihi v Police - [2019] NZHC 771

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2019-463-000034

[2019] NZHC 771

IN THE MATTER OF an appeal against sentence

BETWEEN

JESSY TIHI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 10 April 2019 (Heard at Tauranga)

Counsel:

C A Gentleman for the Appellant E F Collis for the Respondent

Judgment:

10 April 2019

(ORAL) JUDGMENT OF EDWARDS J

Solicitors: Gowing and Co, Whakatane
Pollett Legal (Office of the Crown Solicitor), Tauranga

TIHI v POLICE [2019] NZHC 771 [10 April 2019]

[1] Mr Tihi appeals his sentence of 25 months’ imprisonment for the following offences:

(a)Assault with a blunt instrument (x 3);1

(b)Failure to answer District Court bail (x 2);2

(c)Breach of community work;3 and

(d)Wilful damage.4

[2] Mr Tihi appeals on the ground that the end sentence was manifestly excessive and an end sentence of 22 and a half months’ imprisonment should have been imposed.

The offending

[3]Mr Tihi pleaded guilty to seven charges relating to a number of incidents.

[4] The first was an assault that occurred on 6 August 2018. Mr Tihi got into an argument with his father. As he left the house, he started to throw bottles, and smashed one against the side of his father’s head. He then picked up gardening shears and smashed the glass pane in a door. This offending gave rise to one of the assault charges, and the charge of wilful damage.

[5] The other assault charges arose out of an incident at around midnight on 19 January 2019. Mr Tihi was at a friend’s place in Whakatane when an argument broke out over cigarettes. Mr Tihi pushed a male victim, picked up a metal pot, and struck him on the head with it. The victim fell to the floor, and Mr Tihi kicked him and struck him in the head with the metal pot at least twice. By this time, the female victim had picked up a knife from the kitchen for protection. Undeterred, Mr Tihi

1      Crimes Act 1961, s 202C, maximum penalty five years’ imprisonment.
2      Bail Act 2000, s 38, maximum penalty one year’s imprisonment or fine not exceeding $2,000.
3      Sentencing Act 2002, s 71(1), maximum penalty three months’ imprisonment or fine not exceeding
$1,000.
4      Summary Offences Act 1981, s 11, maximum penalty three months’ imprisonment or fine not exceeding $2,000.

turned and hit the female victim multiple times with the pot, including on the side of her face, causing the handle of the pot to break.

[6] The victims followed Mr Tihi out of the property and on to the deck. Mr Tihi turned back and punched the female victim in the stomach. This offending took place while he was under a warrant to arrest for non-appearance on the earlier charges.

[7] In addition, on 13 August 2019, Mr Tihi failed to turn up for community work. On 24 October 2018, and 9 January 2019, he breached his bail conditions by failing 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.

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Details

Case: [2019] NZHC 771
Decision Date: 10 April 2019

CaseChat Overview and Summary

The case involves Mr Tihi, who appeals his sentence of 25 months’ imprisonment for multiple offences including assault, failure to answer District Court bail, breach of community work, and wilful damage. The appeal was heard by the High Court of New Zealand at Rotorua Registry. Mr Tihi argues that the sentence was manifestly excessive and that a sentence of 22 and a half months’ imprisonment should have been imposed instead. The legal issues in this case centre on whether the sentence imposed by the District Court was manifestly excessive, and whether the six-month uplift for the breach of bail, breach of community work, and wilful damage offences was appropriate.

The court considered that the six-month uplift for the balance of the offending could not be considered in isolation, but rather the totality of the offending was relevant. The court noted that the Judge did not apply a discrete uplift for Mr Tihi’s prior convictions but his criminal history was clearly before the Court and may have informed the quantum of the uplift applied. The court held that the prior history required deterrence and denouncement in the sentence imposed for the same type of offending before the Court and would have justified a discrete uplift for personal aggravating factors. However, the effective end sentence imposed reflected a two-month discount for totality purposes. Therefore, the six-month uplift applied by the Judge was mitigated by the two-month discount reflected in the end sentence ultimately imposed.

The court rejected the argument that the end sentence imposed changes the nature and character of the sentence, making any adjustment to the sentence imposed by the District Court more than mere tinkering. The court held that sentences are to be fixed in accordance with the Sentencing Act 2002, and in accordance with the purposes and principles set out in ss 7 and 8 of that Act. In the absence of exceptional circumstances, there is no basis to artificially manipulate a sentence to afford more favourable parole terms.

Final Orders: The appeal from sentence is declined.

Orders