Tipene v Police

[2016] NZHC 2607

IN THE HIG H COURT O F NEW ZEALAND AUCKLAND REG ISTRY

CRI-2016-404-000332 [2016] NZHC 2607

BETWEEN

STEVEN TIPENE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	31 October 2016
Appearances:	D Dicki nson for the Appellant A McConachy for the Respondent
Judgment:	1 November 2016

JUDGMENT O F FOGARTY J

This judgment was delivered by Justice Fogarty

On 1 November 2016 at 3.00pm

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:

D Dickinson, Auckland

Crown Solicitor, Auckland

TIPENE v NEW ZEALAND POLICE [2016] NZHC 2607 [ 1 November 2016]

[1]      Mr Tipene appeals against a sentence of 12 months’ imprisonment, with six months’  post-release  conditions,  havi ng  pleaded  guilty  to  a  charge  of  common assault.  The maxi mum sentence under the Cri mes Act 1961 for that char ge is one year ’s imprisonment.

[2]      The appellant was a co-offender with a woman.  The woman i nflicted most of the physical assaults on the complainant.  She was wearing boots and she kicked the body of the complainant three ti mes.

[3]      The Judge considered the facts to be a case of serious assault.  He found that whilst the majority of the blows were being i nflicted by the appellant’s associate, the appellant clearly encouraged and aided her.  The Judge was of the view that s 8(c) of the Sentenci ng Act 2002 applied, which i ndicates that the  Court  must i mpose a maxi mum penalty prescribed for the offence if the offending is within the  most serious of cases for which the penalty is prescribed.  Because of his past cri minal history, the Judge did not think a sentence of less than the full custodial sentence would meet the purposes of sentencing.

[4]      The Judge took as a starting point 12 months’ imprisonment and then added an uplift of three months to that for his previous convictions.  He then noted the plea of guilty that the  appellant was  entitled  to  a  credit for  that so  reduced  the  end sentence to one of 12 months’ imprisonment.

[5]      The charge agai nst the appellant had origi nally been a charge of inj uring with intent to inj ure.   It was reduced on a police application to a char ge of common assault.

[6]      I interpret the  approach of Judge  Gibson that  he  did  not agree  with the exercise of the prosecution decision as to which char ge to lay.

[7]      Counsel before me were unable to identify any authority or provision in the Sentenci ng Act or any authority which would have allowed the Judge to i mpose a sentence of more than 12 months’ imprisonment.  I thi nk it was an error of law for the  Judge  to  ascribe  an  uplift  of  three  months  for  the  appellant’s  previous

convictions.  The appellant having pleaded guilty, he is entitled under the authorities to a credit for that.  The Judge allowed a 25 per cent credit of three months, reduci ng the end sentence to one of 12 months’ imprisonment.  I thi nk the guilty plea credit should remai n but be deducted off the starti ng point of 12 months’ imprisonment, reducing the end sentence to ni ne months’ imprisonment.  The appeal is allowed and the appellant is re-sentenced to nine months’ imprisonment on the char ge and with

six months’ post-release conditions.

Fogarty J