Enoka v The Queen - [2012] NZCA 435

IN THE COURT OF APPEAL OF NEW ZEALAND

CA74/2012
[2012] NZCA 435

BETWEEN MALCOLM LEON ENOKA
Appellant

AND THE QUEEN
Respondent

Hearing: 10 September 2012

Court: Arnold, Priestley and Ronald Young JJ

Counsel: A M Dooney for Appellant
M D Downs and B C L Charmley for Respondent

Judgment: 25 September 2012 at 10.30 am

JUDGMENT OF THE COURT

AThe appeal against conviction is dismissed.
BThe appeal against sentence is allowed. The sentence of four years, nine months’ imprisonment imposed in the District Court is quashed and a sentence of four years, three months’ imprisonment is substituted.

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REASONS OF THE COURT

(Given by Arnold J)

Introduction

Following a jury trial before Judge D G Harvey, the appellant, Mr Enoka, was convicted of two counts of male assaults female, three counts of breaching a protection order, one count of injuring with intent to injure, one count of assault with intent to injure and four counts of accessing a computer system for a dishonest purpose. He was sentenced to imprisonment for a term of four years, nine months.[1] He now appeals against both conviction and sentence.

Factual background

[1] R v Enoka DC Whangarei CRI-2010-011-785, 19 January 2012.

Mr Enoka and the complainant had been in an “on again/off again” relationship for about four years. They had one child. In addition, the complainant had been living with her three children from a previous relationship. In March 2009, the Family Court issued a protection order against Mr Enoka in respect of the complainant and her children. This resulted from Mr Enoka’s frequent use of violence against the complainant, especially after he had been drinking.
The offending with which this appeal is concerned occurred at three times: in November 2010, December 2010 and February 2011. We deal with each in turn.

November 2010 incident

Two charges arose from the November 2010 incident, one of assault with intent to injure and another of breach of the protection order. At this stage, Mr Enoka and the complainant were not living together. While Mr Enoka was at the complainant’s house, he read some text messages on her mobile phone. He became angry when he came across one from a man with whom he knew the complainant had had a brief liaison. An argument developed and the complainant asked Mr Enoka to leave. Because his car was not working, the complainant offered to drive Mr Enoka to his home. He accepted and they left in the car, together with their young son.
The argument continued in the car, to the point that the complainant became concerned for her safety and asked Mr Enoka to get out and walk the last part of the way to his house. When Mr Enoka refused, the complainant got out of the car. Mr Enoka followed and they continued to argue, until Mr Enoka put his hands around the complainant’s neck and squeezed. The complainant had difficulty breathing and thought Mr Enoka was about to kill her. However, she managed to break…

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 Enoka v The Queen

Details

AGLC: Enoka v The Queen [2012] NZCA 435
Case: [2012] NZCA 435
Decision Date: 25 September 2012

CaseChat Overview and Summary

In the case of Enoka v The Queen, the appellant, Malcolm Leon Enoka, appealed against both his conviction and sentence. Enoka was convicted of various charges including assault, breaching a protection order, and accessing a computer system for a dishonest purpose. He was sentenced to imprisonment for a term of four years, nine months. The appeal against the conviction centred on the admissibility of propensity evidence regarding Enoka’s previous convictions for breaching protection orders in respect of the complainant. The court held that the evidence was properly admitted as it was relevant to the credibility of the complainant and demonstrated a pattern of behaviour by Enoka. The appeal against the sentence argued that the cumulative sentence of four years, nine months was manifestly excessive. The court agreed, noting that while the individual sentences for each incident were appropriate, the cumulative sentence did not appropriately reflect the totality of the offending and the offender. The sentence was reduced to four years, three months.

The Court of Appeal dismissed the appeal against conviction but allowed the appeal against sentence. The sentence of four years, nine months was quashed, and a sentence of four years, three months was substituted. This decision highlights the importance of considering the totality principle in sentencing for multiple offences to ensure the final sentence appropriately reflects the overall criminality of the offending and the offender.

Orders