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Allen v R

Allen v R

Case [2022] NZCA 630 15 December 2022

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA715/2021
[2022] NZCA 630

BETWEEN	WIREMU TAMAHANA ALLEN Appellant
AND	THE KING Respondent

Hearing:	23 June 2022
Court:	Cooper P, French and Collins JJ
Counsel:	C J Nicholls for Appellant P D Marshall and R E King for Respondent
Judgment:	15 December 2022 at 10.00 am

JUDGMENT OF THE COURT

AThe application to adduce fresh evidence is granted.

B The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper P)

On 20 March 2020, Wiremu Allen pleaded guilty to a charge of being party to wounding with reckless disregard for the safety of others.[1] On 23 July 2020, he was sentenced by Clark J to the maximum penalty of seven years’ imprisonment pursuant to s 86D of the Sentencing Act 2002 because the offence was his “third strike”.[2] However, the Judge declined to order that he serve the seven‑year sentence without parole, holding that would be manifestly unjust.[3]
[1]Crimes Act 1961, ss 66 and 188(2).
[2]R v Allen [2020] NZHC 1796 [Sentencing judgment].
[3]At [51]. See generally Sentencing Act 2002, s 86D(3).
At sentencing, the Judge noted that were it not for the three strikes regime she would have allowed a 25 per cent discount in recognition of Mr Allen’s early guilty plea.[4] There would also have been a discount of 20 per cent in recognition of cultural factors and Mr Allen’s potential for rehabilitation.[5] The result would have been an end sentence of two years and one month’s imprisonment.[6]
[4]At [36].
[5]At [37].
[6]At [37].
In Fitzgerald v R, the Supreme Court held that the maximum penalty should not be imposed on a third strike offender if that sentence would breach s 9 of the New Zealand Bill of Rights Act 1990, which affirms “the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment”.[7]
[7]Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551.
The short question presented by this appeal is whether the seven-year sentence was disproportionately severe compared with the sentence of two years and one month which would have otherwise been imposed.
Before confronting that issue, we give a brief summary of the offending and the circumstances relating to Mr Allen that are relevant for present purposes.

The offending

At 12.50 am on 15 June 2019, Mr Allen and a co‑offender, Mr Karaitiana, broke into a flat occupied by the victim, Mr Amituanai, by forcing open a locked exterior kitchen door. They were both armed with pistols. Mr Amituanai was asleep in a room next to the kitchen. Mr Allen and Mr Karaitiana confronted him, telling him that he owed them money.
Mr Amituanai sat up in bed where upon Mr Allen punched him on the side of his face. As Mr Amituanai tried to stand up, Mr Karaitiana grabbed him by the front of his t-shirt. The pistol held by Mr Karaitiana was then discharged,…

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 Allen v R

Details

AGLC: Allen v R [2022] NZCA 630
Case: [2022] NZCA 630
Decision Date: 15 December 2022 at 10.00 am

CaseChat Overview and Summary

Wiremu Allen appeals against his conviction and sentence for being party to wounding with reckless disregard for the safety of others. The Crown opposes the appeal. Allen was sentenced to seven years’ imprisonment by Clark J. The maximum penalty was imposed because the offence was Allen’s third strike under s 86D of the Sentencing Act 2002. The Judge declined to order Allen to serve the seven-year sentence without parole, holding that it would be manifestly unjust. Allen contends the maximum sentence is disproportionately severe, and so infringes s 9 of the New Zealand Bill of Rights Act 1990. The Court of Appeal grants the application to adduce fresh evidence. The appeal is dismissed. In the result, the Court holds that the seven-year sentence was not disproportionately severe. The Crown’s argument that the sentence of three years would have been more appropriate takes account of the mathematical disparity between the sentence imposed and the but-for sentence. The Court also finds the nature of the offending was serious, and the imposition of the maximum penalty would not infringe s 9.

Orders