Harvey v The Queen - [2017] NZCA 171

IN THE COURT OF APPEAL OF NEW ZEALAND

CA412/2016
[2017] NZCA 171

BETWEEN	ERUERA HARVEY Appellant
AND	THE QUEEN Respondent

CA435/2016
BETWEEN	LIBYA CURTIS TAMIHERE Appellant
AND	THE QUEEN Respondent

Hearing:	5 April 2017
Court:	Randerson, Clifford and Whata JJ
Counsel:	T Epati for Appellant Harvey N H Wright for Appellant Tamihere E J Hoskin for Respondent
Judgment:	10 May 2017 at 10:30am

JUDGMENT OF THE COURT

AMr Harvey’s appeal against sentence is dismissed.
BMr Tamihere’s appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Whata J)

Mr Harvey and Mr Tamihere were co-offenders in a violent gang invasion of a family home. Mr Harvey was sentenced to five years’ imprisonment for aggravated burglary and unlawful assembly.[1] Mr Tamihere was sentenced to six years’ imprisonment on charges of aggravated burglary, injuring with intent to cause grievous bodily harm and unlawful assembly.
[1]R v Parata [2016] NZDC 14274.
They appeal against their sentences.

Grounds for appeal

They appeal on the grounds that:
(a)A starting point of six and a half years for Mr Harvey was excessive given his limited involvement in the offending; and
(b)The Judge should have applied a discount for Mr Tamihere’s youth, given that he was only 20 years old at the time of the offending.

Background

Mr Tamihere is a patched member of the Black Power gang. Late in the evening of 10 October 2014 he was set upon by members of the Mongrel Mob. He suffered a significant head injury for which he would ultimately need surgery. Later that night he and several other members of the gang, including Mr Harvey (who was a prospect), made their way to a residential home at Childers Road to exact utu (revenge). The residents there hid while the group yelled and banged on the back door. They were told they could find who they were looking for at another home located on Karaka Street.
Upon arriving at the Karaka Street address Mr Tamihere was confronted by one of the complainants, Mr Green. Mr Tamihere swung a metal baseball bat at him, hitting him in the head, in the arm and in the ribs. The sentencing Judge found that Mr Harvey also entered the yard of the property about this time. Many of the group were armed with weapons including sticks, bats and scooter handles, some of which were picked up at the Karaka Street address.
Mr Tamihere and others in the group forced their way into the house, wielding their makeshift weapons. The home was occupied by 15 people including a number of children. Mr Harvey did not enter the house. The group were eventually forced out of the house on to the front yard where a large brawl involving weapons ensued. Shortly after the police arrived and arrested the participants.
Shortly before trial Mr Tamihere pleaded guilty to charges of aggravated burglary, injuring with intent to cause grievous bodily harm and unlawful assembly. Mr Harvey was found guilty after trial on charges of aggravated…

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 Harvey v The Queen

Details

AGLC: Harvey v The Queen [2017] NZCA 171
Case: [2017] NZCA 171
Decision Date: 10 May 2017

CaseChat Overview and Summary

Eruera Harvey and Libya Curtis Tamihere were co-offenders in a violent gang-related home invasion. Harvey was sentenced to five years' imprisonment, while Tamihere received six years. They appealed against their sentences, arguing that the starting point for Harvey was excessive given his limited involvement and that the judge should have applied a discount for Tamihere's youth.

The Court of Appeal found that the judge had appropriately assessed Harvey's involvement, considering his admissions and the overall circumstances of the offending. The Court noted that Harvey played a support role in the invasion and that the difference in starting points between him and Tamihere accurately reflected their relative involvement. The appeal against Harvey's sentence was dismissed.

Regarding Tamihere, the Court acknowledged that he was impulsive and immature at the time of the offending, and a modest discount for youth could have been appropriate. However, the Court found that the overall sentence was not manifestly excessive and dismissed the appeal. The judges concluded that a 20-month discount, which included both the head injury and youth, was adequate in the circumstances.

Orders