Kataina-Marii v Police [2012] NZHC 3497 (17 December 2012)

Last Updated: 18 January 2013

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2012-412-000055 [2012] NZHC 3497

ANDREW KATAINA-MARII

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 17 December 2012

Counsel: C Savage for Appellant

R Smith for Respondent

Judgment: 17 December 2012

_{JUDGMENT OF PANCKHURST J}

[1] This is an appeal against an effective sentence of nine months imprisonment imposed in relation to a Summary Offences Act assault and two breaches of parole conditions.

[2] The assault occurred on 11 August last. The appellant when intoxicated became involved in an altercation with a security guard working at an inner city bar. He intended to strike the guard, but as Mr Savage aptly put it, it was a swing and a miss. He was then restrained, overcome by numbers, and the incident promptly came to an end.

[3] The breaches of parole preceded the assault by a few days, having occurred in early August and late July. The appellant was released from prison in early April,

KATAINA-MARII V NEW ZEALAND POLICE HC DUN CRI 2012-412-000055 [17 December 2012]

initially required to report to a Probation Officer weekly, but that became a daily reporting requirement when he became a street dweller. He failed to report on occasions.

[4] Mr Kataina-Marii is a tragic figure. He is 36 years of age. He has any number of previous convictions. A considerable number of them for assault and also numerous convictions for what might be termed nuisance offending. He has both an alcohol problem, and also what the reports refer to as mental health issues. I note that psychiatric reports were obtained in the District Court in order to ensure his fitness to stand trial.

[5] The appellant was sentenced on 23 October. In relation to the assault, Judge Crosbie fixed a starting point of two months imprisonment, uplifted that starting point by three months on account of the appellant’s previous history for assaults, to arrive at a sentence of five months for the assault. In relation to the two parole breaches, he determined four months imprisonment was the appropriate starting point, uplifted this by four months, to reach eight months imprisonment. Given that the offending was different in kind and circumstance, he rightly considered that the two periods of imprisonment needed to be accumulated, but made an allowance of four months for the plea of guilty to the assault, and hence, the effective sentence became nine months imprisonment.

[6] The Judge in the course of his remarks, referred to the Appellant as a complex individual, noted the length of his previous record and, as I have, the flavour of his past offending which is very similar to the subject charges. Judge Crosbie also used the phrase

He fell within an awkward category of offenders.

No doubt, a reference to his mental health issues, and alcohol dependence. In support of the appeal, Mr Savage submitted that uplifts of 150% and 100% respectively, were effectively wrong in principle, and hence, that it was necessary for this Court to revisit the sentencing exercise.

[7] Mr Smith realistically accepted that the uplifts were too high. However, he questioned whether the end sentence was not within the appropriate range, and invited me to revisit the original starting points, arrived at by the Judge. Counsel suggested that the assault warranted a starting point of about two thirds of the maximum, four months imprisonment, and the breaches of parole about half of the maximum, six months imprisonment, with a general uplift of three months to arrive at a 13 month end sentence before allowing a generous four month discount, for the guilty plea. This of course would produce the same sentence, nine months imprisonment.

[8] I am not inclined to revisit and adjust the starting points for either the assault or the breaches of parole, albeit, there may be some merit in what Mr Smith has said in relation to those aspects. I am reluctant because sitting in this Court where we do not deal with offending of this kind as a matter of course, I think it inappropriate, at least, in this particular case to embark on that exercise. To my mind, the appropriate course is to leave the starting points intact, increase each of them by one month imprisonment to three month and five months respectively, which suggests an end sentence of eight months imprisonment. From this it seems to me that only a month and a half can be allowed by way of reduction for a single guilty plea, producing an end sentence of six and half months imprisonment.

[9] I allow the appeal, in light of the adjustments I have just indicated, and substitute terms of two and a half months on the assault charge and four months on the breach of parole charges.

Solicitors:

Public Defence Service, Dunedin

Wilkinson Adams, Dunedin