Vega v Police - [2023] NZHC 2476

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-304

[2023] NZHC 2476

BETWEEN
YONIER CUEVAS VEGA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 4 September 2023

Appearances:

H J Croucher for Appellant S R Bicknell for Respondent

Judgment:

5 September 2023

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 5 September 2023 at 3.30 pm

Registrar/Deputy Registrar

Date: ...................................

Solicitors:Ministry of Justice – Public Defence Service, Manukau Kayes Fletcher Walker Ltd, Crown Solicitor, Manukau

VEGA v POLICE [2023] NZHC 2476 [5 September 2023]

Introduction

[1] The appellant appeals against his sentence of 11 months’ home detention imposed by Judge S Bonnar KC on 23 May 2023.1

[2] The appellant contends the sentence is manifestly excessive. In particular, counsel for the appellant, Ms Croucher, submits the Judge’s discount for the appellant’s guilty pleas was insufficient and ought to have been 25 per cent, and that the Judge also erred in failing to grant discounts for the appellant’s remorse and for his personal circumstances.

[3] I must allow the appeal if satisfied there is an error in the sentence imposed and a different sentence should be imposed.2 I must dismiss the appeal in any other case. The Court does not simply substitute its own view for that of the original sentencing Judge.3 Rather, it must be shown the sentence is manifestly excessive or wrong in principle.4 The focus is on the end sentence, rather than the process by which the sentence was reached.5

Offending

[4]The appellant was for sentence on four charges.

[5] The first was assault on a person in a family relationship, committed on 4 April 2021. The appellant first appeared on this charge on 5 April 2021 and was remanded on bail.

[6] The second charge was for driving whilst disqualified, committed in June 2021. This offending came to light because the appellant was exceeding the posted speed limit. At the time, the appellant was subject to an alcohol interlock order, with which he was non-compliant.

1      R v Vega [2023] NZDC 10342.
2      Criminal Procedure Act 2011, s 250(2).
3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].
4      Te Aho v R [2013] NZCA 47 at [30]; and Tutakangahau v R , above n 3, at [30]—[35].
5      Tutakangahau v R , above n 3, at [36].

[7] The third and fourth charges, assault with intent to injure and strangulation, were committed on 20 August 2021. The appellant first appeared on this offending on 21 August 2021. Initially the appellant was charged with injuring with intent to injure, but that charge was subsequently reduced to assault with intent to injure.

[8] All of the appellant’s violence offending was committed against the same woman, the appellant’s then partner.

[9] In the first instance, the appellant pleaded not guilty to all of his offending, with the possible exception of the driving charge. However, at a case review hearing on 21…

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 Vega v Police

Details

AGLC: Vega v Police [2023] NZHC 2476
Case: [2023] NZHC 2476
Decision Date: 5 September 2023

CaseChat Overview and Summary

In the High Court of New Zealand, the appellant, Yonier Cuevas Vega, appealed against his sentence of 11 months' home detention, imposed by Judge S Bonnar KC on 23 May 2023, for four charges including assault and driving while disqualified. The appellant argued that the sentence was manifestly excessive, particularly because the discount for his guilty pleas was insufficient and he should have received further discounts for his remorse and personal circumstances. The court was required to decide whether the sentence was manifestly excessive or wrong in principle, and whether the appellant was entitled to further discounts for his guilty pleas, remorse, and personal circumstances.

The court held that the Judge was correct in discounting the appellant’s guilty pleas by 20 per cent, as the pleas were not entered at the earliest opportunity. Regarding the proposed discount for remorse, the court held that the Judge's 20 per cent discount was generous, given the seriousness of the offending, which resulted in the victim losing consciousness and control of her bladder. The court also held that no further discount was permissible for personal circumstances, as the appellant had lived in New Zealand since he was 20 years old, was well qualified, and ran both a business and a household. The offending was the result of intoxication, and the required causal connection between personal disadvantage and offending was not established.

The court dismissed the appeal, holding that the end sentence was not manifestly excessive. The appellant should understand that counsel made every possible submission on his behalf, but the Judge treated the appellant generously, both in terms of the starting point adopted and the discounts awarded.

The final orders of the court were that the appeal was dismissed.

Orders