Wiringi v Police - [2017] NZHC 1734

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2017-409-56 [2017] NZHC 1734

BETWEEN
FAIRMONT JOSEPH WIRINGI

Appellant

AND

NEW ZEALAND POLICE AND DEPARTMENT OF CORRECTIONS Respondents

Hearing: 28 June 2017

Appearances:

M Starling for Appellant
S J Mallett and S Dayal for Respondents

Reasons:

25 July 2017

REASONSFOR JUDGMENT OF NICHOLAS DAVIDSON J (DISMISSING APPEAL AGAINST SENTENCE)

Introduction

[1] Judgment was delivered 28 June 2017.1 These Reasons follow.

[2] Mr Fairmont Wiringi appeals against a sentence of 28 months imprisonment imposed by His Honour Judge Gilbert.2 The appellant pleaded guilty to:

(i) one charge of burglary;
(ii) one charge of unlawful possession of firearm; (iii) one charge of reckless discharge of firearm;

1 Wiringi v New Zealand Police and Department of Corrections [2017] NZHC 1461.
2 Police v Wiringi [2017] NZDC 9296.

WIRINGI v NEW ZEALAND POLICE AND DEPARTMENT OF CORRECTIONS [2017] NZHC 1734 [25 July 2017]

(iv) one charge of breach of community work; and

(v) two charges of breach of bail.

[3] The appellant appeals on the primary ground that the end sentence was manifestly excessive.

Summary of facts

[4] On 24 April 2016, the appellant entered an address through a kitchen window, removed some meat from a freezer and took other items valued at around
$420. When the occupants of the house arrived home, the appellant ran out the back door and jumped the fence. He also stole a bicycle valued at about $600.

[5] On 3 December 2016, the appellant was on bail and was with his brother and two female acquaintances. An argument developed when the appellant woke up to find his brother had taken his gang patch. The appellant told his brother he had five minutes to give his patch back or he would shoot him. He loaded his shogun, held it in both hands, and fired one shot, which hit the carpet in front of his brother. The defendant continued to threaten his brother until he realised the police had been called.

[6] In December 2015, the appellant was convicted of shoplifting (under $500), and sentenced to 60 hours community work. As of 10 February 2016, he had not completed any work which led to his conviction for breach of the community service order. He was also convicted on two charges of failing to comply with bail conditions.

District Court Sentencing

[7] His Honour Judge Gilbert noted the appellant’s youth, 18 years old. However, he also noted his extensive criminal history in the Youth Court. His Honour took into account his conviction for unlawful possession and presentation of firearm in 2015. Judge Gilbert decided not to impose an uplift for the previous

conviction, but did not provide any discount for the appellant’s youth. In his opinion, that was the right way to address these two factors.

[8] The Judge adopted an 18 months starting point on the charge of burglary and a 24 months starting point for possession and reckless discharge of a firearm. After applying a 25 per cent discount…

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: [2017] NZHC 1734
Decision Date: 25 July 2017

CaseChat Overview and Summary

In Wiringi v Police, the appellant, Fairmont Joseph Wiringi, sought to appeal against a 28-month imprisonment sentence imposed by the District Court. Wiringi pleaded guilty to burglary, unlawful possession of a firearm, reckless discharge of a firearm, breach of a community work order, and two charges of breach of bail conditions. The appellant's main argument was that the end sentence was manifestly excessive. The court was required to determine whether the sentence imposed was justified by relevant sentencing principles and whether it was manifestly excessive.

The court considered the appellant's youth and extensive criminal history, along with the specific charges and aggravating factors in each case. The District Court Judge had adopted an 18-month starting point for the burglary charge and a 24-month starting point for the possession and reckless discharge of a firearm. The court found these starting points to be justified based on the relevant authorities and facts of the case. After applying a 25% discount for guilty pleas and a further 6-month reduction under the principle of totality, the court imposed a sentence of 2 years and 4 months imprisonment. The court found the sentence to be within the range of available sentences and not manifestly excessive. The appeal was dismissed.

Orders