Hape v R - [2015] NZCA 187

IN THE COURT OF APPEAL OF NEW ZEALAND

CA741/2014
[2015] NZCA 187

BETWEEN	TYRAN JARROD HAPE Appellant
AND	THE QUEEN Respondent

Hearing:	13 May 2015
Court:	Randerson, Courtney and Kós JJ
Counsel:	N M Dutch for Appellant B F Fenton for Respondent
Judgment:	21 May 2015 at 11:30 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Introduction

The appellant was convicted after a jury trial in the District Court before Judge Harding on one count of causing grievous bodily harm with intent to cause grievous bodily harm.[1] He was sentenced to four years and three months imprisonment and now appeals against sentence.[2]
[1]Crimes Act 1961, s 188(1).
[2]R v Hape DC Tauranga CRI-2013-070-235.
The appeal is advanced on the grounds that:
(a)The starting point of five and a half years imprisonment was too high.
(b)Insufficient allowance was made for the appellant’s youth and previous good character.

The facts

Judge Harding described the facts in these terms:[3]
[1]       … What happened, happened on New Year’s Eve 2012. You had been drinking. You were at the Mount. The person who you ended up hitting approached you and attempted to speak with you. You took exception, punched him in the face, knocking him backwards to the ground. The back of his head hit the road as he fell and he became unconscious. While he was on the ground, you then kicked him full force in the face. Your kick was described as how Dan Carter would kick a rugby ball.
[2]       The complainant was taken to hospital unconscious and injured. He suffered a fractured cheek, a fractured eye socket, a broken nose, bruising to the front and rear of his brain and has had to undergo reconstructive surgery once and is likely to have to undergo it again.
[3]       You acknowledge kicking the complainant on the ground.
[3]R v Hape, above n 2.
The Judge then summarised the effects of the attack:
[4] The victim impact statement makes it clear that there have been significant and ongoing effects from this. He was housebound for six weeks. He has sleepless nights. He is unable to participate in sport any longer. He is not allowed to play any contact sport for some time for the risks. He had to leave his job because he could not do what he was required to do. He is very wary of his own safety and he regards his life as having been significantly affected for a whole year.
The Judge took into account the following aggravating factors: the level of violence employed; there was a kick to the head; this occurred while the victim was defenceless on the ground and in a vulnerable position; and the significant harm done. He regarded the case as falling within the top of band 1 or the bottom of band 2 as described in R v Taueki.[4] The Judge considered the violence to be arguably extreme; the…

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 Hape v R

Details

AGLC: Hape v R [2015] NZCA 187
Case: [2015] NZCA 187
Decision Date: 21 May 2015 at 11:30 am

CaseChat Overview and Summary

The appeal in Hape v R was heard in the Court of Appeal of New Zealand, with the appellant, Tyran Jarrod Hape, challenging his sentence for causing grievous bodily harm with intent. The District Court had sentenced Hape to four years and three months imprisonment, which he now appealed on the grounds that the starting point of five and a half years was too high and that insufficient allowance was made for his youth and previous good character. The facts of the case involved Hape attacking a person on New Year's Eve 2012, causing severe injuries that included a fractured cheek, a fractured eye socket, a broken nose, and bruising to the front and rear of his brain.

The legal issues before the Court of Appeal centered on the appropriateness of the starting point for the sentence and the discount given for Hape's youth and previous good character. The Court considered whether the Judge had correctly assessed the culpability and the level of violence in the case, and whether the discount for youth and previous good character was justified. The Court also examined whether the final sentence was manifestly excessive.

The Court of Appeal held that the starting point of five and a half years was appropriate, considering the level of violence and the serious injuries sustained by the victim. The Court rejected the argument that the Judge had double-counted aggravating factors and found that the Judge's assessment of the case as falling within the top of band 1 or the bottom of band 2 was justified. Regarding the discount for youth and previous good character, the Court accepted the Crown's submission that the combined discount was about 22 per cent and found no basis to interfere with the Judge's assessment. The Court concluded that the sentence, while stern, was not manifestly excessive and dismissed the appeal against sentence.

Orders