Zabiyaka v The Queen - [2017] NZHC 124

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2016-419-000061 [2017] NZHC 124

BETWEEN
ANTON ZABIYAKA

Appellant

AND

THE QUEEN Respondent

Hearing: 8 February 2017

Appearances:

G Walsh for the Appellant
M Dillon for the Respondent

Judgment:

8 February 2017

ORAL JUDGMENT OF MUIR J

Counsel/Solicitors:
G Walsh, Barrister, Hamilton
M Dillon, Almao Douch, Hamilton

ZABIYAKA v THE QUEEN [2017] NZHC 124 [8 February 2017]

Introduction

[1] The appellant, Mr Zabiyaka, pleaded guilty to eleven charges in the District Court, all of which resulted from a single methamphetamine-fuelled spree of offending. The pre-sentence report describes him having generally “wrought chaos from Hamilton to Te Kuiti”. That is not an overstatement.

[2] On 27 September 2016 Judge Treston sentenced him to four years imprisonment. Mr Zaibyaka now appeals his sentence on the basis that it was manifestly excessive. Specifically he argues that the starting point adopted was too high and the discount for mitigating factors was insufficient and did not recognise discounts for remorse and rehabilitation.

Offences

[3] In the District Court Mr Zabiyaka pleaded guilty to the following charges:

Offence

Statutory provision

Maximum penalty

Demanding with intent to steal (x 4 counts)1

Crimes Act 1961, s 239(2).

7 years’ imprisonment

Intentional damage

Crimes     Act     1961,    s

269(2)(a).

7 years’ imprisonment

Wilful damage

Summary    Offences    Act

1981, s 11(1)(a).

3 months’ imprisonment

Aggravated robbery

Crimes Act 1961, s 235(c).

14 years’ imprisonment

Possession of an offensive weapon

Crimes     Act     1961,    s

202A(4)(b).

3 years’ imprisonment

Aggravated assault

Crimes     Act     1961,    s

192(1)(c).

3 years’ imprisonment

Possession of Class A controlled drug (methamphetamine)

Misuse of Drugs Act 1975, ss 7(1)(a) and 7(2).

6 months’ imprisonment

1 The appellant’s submissions refer to only three counts of demanding with intent to steal, but the
charge sheet and the District Court judgment both refer to four counts.

Offence
Statutory provision

Maximum penalty

Driving while impaired

Land Transport Act 1998, s

57A.2

3 months’ imprisonment plus disqualification from driving

Factual background

The offending

[4] The offending occurred on the morning of 27 April 2016. At that time Mr Zabiyaka was subject to release conditions in respect of previous offending. He was the guest of a hotel in Hamilton. At around 6.15 am that morning he injected himself with methamphetamine. It appears that he had done so on numerous previous occasions having explained to the writer of the pre-sentence report that on the morning in question he injected “larger than his normal quantity of the drug”. Upon doing so he became highly agitated, breaking items and furniture in his hotel room and forcibly removing a fire sprinkler. This resulted in extensive water damage to the interior of his room and also some damage to neighbouring rooms. These actions resulted in the intentional damage charge.

[5] He then exited the hotel and drove off in his motor vehicle which was parked nearby. He had a hammer in the car which he retained throughout the offending. That gave rise to the possession of offensive weapon charge.

[6] By about…

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 Zabiyaka v The Queen

Details

AGLC: Zabiyaka v The Queen [2017] NZHC 124
Case: [2017] NZHC 124
Decision Date: 8 February 2017

CaseChat Overview and Summary

Anton Zabiyaka appeals against the sentence imposed on him by the District Court following his conviction on eleven charges arising out of a methamphetamine-fuelled spree of offending. He argues that the sentence of four years imprisonment imposed on him was manifestly excessive. Specifically, he contends that the starting point adopted was too high and that the discount for mitigating factors was insufficient. The court must determine whether there was an error in the sentencing process and if a different sentence should be imposed.

The court found that the starting point for the aggravated robbery was inappropriate. The court considered various factors, including the use of a weapon, the actual violence, and the impact on the victims, and determined that a starting point of two years and six months was appropriate. The court also found that the District Court had erred in not allowing a discount for remorse, rehabilitative efforts, and the offer of reparation. The court determined that a discount of five per cent should have been applied, resulting in a sentence of three years and six months' imprisonment. This sentence is approximately 14 per cent lower than the sentence imposed by the District Court. The court allowed the appeal and substituted the sentence of four years imprisonment with a sentence of three years and six months' imprisonment. The court also made a reparation order in the amount of $5,000 to be paid to the victims.

The final orders are that the appeal is allowed, the sentence of four years imprisonment is substituted with a sentence of three years and six months' imprisonment, and a reparation order in the amount of $5,000 is made.

Orders