Harawira v The Queen - [2014] NZCA 8

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 470/2013
[2014] NZCA 8

BETWEEN	MAU TOA HARAWIRA Appellant
AND	THE QUEEN Respondent

Hearing:	10 February 2014
Court:	Harrison, Rodney Hansen and Dobson JJ
Counsel:	B L Sellars for Appellant G H Vear for Respondent
Judgment:	19 February 2014 at 3.00 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

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REASONS OF THE COURT

(Given by Harrison J)

Introduction

Mau Harawira pleaded guilty in the District Court at Auckland to charges of injuring with intent to injure and theft. He was convicted and sentenced by Judge David Harvey on both charges to concurrent terms of three years and two months imprisonment. [1] He appeals against that sentence on the ground that it is manifestly excessive. In particular his counsel, Ms Sellars, submits that (a) the starting point adopted by the Judge was too high and (b) insufficient credit was given for Mr Harawira’s pleas of guilty and remorse.

Facts

[1]R v Harawira DC Auckland CRI-2012-004-019883, 1 July 2013.

One afternoon in August 2012 Mr Harawira and his two co-offenders were drinking alcohol at Blockhouse Bay Beach. A 12 year old boy, AB, was also there. He allegedly mouthed some abusive words at the three men. As a result, Mr Harawira and the two others chased AB who ran a short distance to his home nearby.
Following a disputed facts hearing, Judge Harvey found that a short time later Mr Harawira and his co-offenders entered AB’s house. Mr Harawira called out for AB. He found the boy in his bedroom. He approached him from behind and slapped him over the head with an open hand and then on the face several times. He grabbed him and threw him on to the floor. As he fell, AB struck his head on some weightlifting equipment. Mr Harawira and one of his co-offenders then punched and kicked AB around the head and torso as he lay on the ground while attempting to defend himself. They then dragged him by his hair and arms out of the bedroom and on to the front deck where Mr Harawira’s co-offender slapped him around the head several times. The attackers only withdrew because a neighbour remonstrated with them.
As a result of the attack, AB suffered bruising to his neck, nose and chest. He was admitted to hospital for examination but later discharged.
Immediately after the attack, Mr Harawira removed miscellaneous items including a Sony Playstation 3 from AB’s bedroom. The total value of the stolen goods was about $1,200.00. Mr Harawira disposed of the goods, although some time later he bought a second-hand Playstation to replace the stolen item.

Sentence

Judge Harvey adopted a starting point for the sentence of three and a half years to take account of the four aggravating factors identified by Ms Vear, namely that (a) the victim’s head was attacked; (b) there were multiple offenders; (c) there was an element of a home invasion; and (d) AB was vulnerable,…

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 Harawira v The Queen

Details

AGLC: Harawira v The Queen [2014] NZCA 8
Case: [2014] NZCA 8
Decision Date: 19 February 2014 at 3.00 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Mau Toa Harawira appealed against his sentence for injuring with intent to injure and theft. Harawira was convicted and sentenced to concurrent terms of three years and two months imprisonment. The appeal focused on the contention that the sentence was manifestly excessive, specifically that the starting point was too high and insufficient credit was given for his pleas of guilty and remorse. The facts of the case involved Harawira and his co-offenders attacking a 12-year-old boy, causing physical injuries and stealing property. The District Court Judge, David Harvey, adopted a starting point for the sentence of three and a half years to account for the four aggravating factors, including the home invasion and the vulnerability of the victim. The Court of Appeal upheld the sentence, noting that the attack was a serious and sustained assault on a young boy in his own home, and the combination of aggravating factors justified the starting point. The Court rejected the submission that the starting point was excessive, and while the level of injury and violence may have been near the bottom of the scale for this type of offending, the combination of factors justified the sentence. The Court also noted that the attack had serious emotional consequences for the victim and his family, and that Harawira's attempt to minimise his participation disqualified him from receiving much of the benefit he might have otherwise obtained for his reasonably early pleas. The appeal was dismissed.

Orders