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IN THE COURT OF APPEAL OF NEW ZEALAND
CA718/2011 [2012] NZCA 480
BETWEEN PATRICK STEVEN ARAHANGA Appellant
AND THE QUEEN Respondent
CA292/2012
AND BETWEEN OWEN CARL WITHINGTON Appellant
AND THE QUEEN Respondent
Hearing: 1 August 2012
Court: Glazebrook, Winkelmann and Rodney Hansen JJ
Counsel: A M Sceats for Appellant Arahanga A M Simperingham for Appellant Worthington M J Lillico for Respondent
Judgment: 18 October 2012 at 12.00 pm
JUDGMENT OF THE COURT
The appeals are dismissed.
REASONS OF THE COURT
(Given by Glazebrook J)
Table of Contents
Para No
Introduction
[1]
Background
[5]
Issues on conviction appeals
[16]
Unreasonable verdicts
[17]
Submissions of the parties
[17]
Our assessment
[22]
Direction on circumstantial evidence
[30]
Submissions of the parties
[30]
Our assessment
[32]
Lawful arrest and escaping from custody
[34]
Submissions of the parties
[34]
Evidence
[37]
Judge’s directions
[39]
Escaping lawful custody
[41]
Case law on arrest
[44]
The test
[53]
Application to this case
[57]
The sentencing remarks
[60]
Issues on sentencing appeals
[66]
Starting point
[67]
Submissions of the parties
[67]
Evidence on the knife
[69]
Section 24 of the Sentencing Act
[71]
Our assessment
[77]
Aggravating features of offending
[83]
Attribution of Mr Withington’s behaviour to Mr Arahanga
[84]
Submissions of the parties
[84]
Our assessment
[86]
Result
[88]
Introduction
Following trial in the District Court at Gisborne, Mr Owen Withington was convicted of one count of unlawfully taking a motor vehicle, two counts of burglary, two counts of threatening to kill, two counts of threatening to do grievous bodily harm, one count of aggravated assault and two counts of threatening to damage property.
Mr Patrick Arahanga was convicted of one count of unlawfully taking a motor vehicle, two counts of burglary and one count of escaping lawful custody.
On 30 September 2011, Messrs Withington and Arahanga were both sentenced by Judge Roy Wade to five years’ imprisonment.[1]
[1]R v Arahanga DC Gisborne CRI-2010-082-803, 30 September 2011.
Messrs Withington and Arahanga appeal against their convictions and sentences.
Background
It was alleged at trial that, during the early morning of 26 December 2010, Messrs Withington and Arahanga broke into an unoccupied bach in Mahia. Mr Arahanga was armed with a carving knife. They entered through a window and stole a television, a DVD player, a stereo unit and various other items from the downstairs part of the property. They stacked the items on the deck at the rear of the property, some of which were later found stock-piled in bushes down the road. They then went upstairs and started rifling through the drawers in the bedrooms, pulling out items and throwing them onto the floor.
The two men then broke into another bach, while the occupants were asleep in bed. They stole electrical items, which they then took outside the house and stashed in nearby sand dunes. They then returned to steal more items and, in doing so, woke up one of the occupants, a teenage…
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
AGLC
Arahanga v R [2012] NZCA 480
Case
[2012] NZCA 480
Decision Date
CaseChat Overview and Summary
Patrick Steven Arahanga and Owen Carl Withington were convicted of various crimes, including burglary, unlawful taking of a motor vehicle, and threatening to kill. They appealed against their convictions and sentences. The key issues were whether the jury verdicts on the burglary, unlawful taking and escaping custody counts should be set aside, whether Judge Wade erred in his direction to the jury on circumstantial evidence, and whether Judge Wade misdirected the jury as to the elements required for lawful arrest with respect to Mr Arahanga. The Court found that the jury were entitled to be satisfied beyond reasonable doubt that Messrs Withington and Arahanga were both identified as the burglars on the basis of the evidence led at trial. The Court also found that the Judge's direction to the jury on circumstantial evidence was orthodox, and that the Judge's directions on the elements required for a lawful arrest were clearly correct and in accordance with the test for lawful arrest. Therefore, the appeals were dismissed.