Hawea v The Queen - [2018] NZHC 770

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2018-483-1

[2018] NZHC 770

BETWEEN
RUBEN HAWEA

Appellant

AND

THE QUEEN

Respondent

Hearing: 17 April 2018

Appearances:

S Burlace for the Appellant

C Middleton and H Mallalieu for the Respondent

Judgment:

23 April 2018

JUDGMENT OF CULL J

[1] Mr Hawea pleaded guilty to one charge of male assaults female.1 On 15 January 2018, Mr Hawea was sentenced to 100 hours community work.2

[2] Mr Hawea appeals his sentence on the basis that the sentence is manifestly excessive; the Judge erred in treating a previous conviction for assault on a child as an aggravating feature; and the sentence imposed was not in accordance with an informal sentence indication.

[3] The Crown opposes the appeal and argues the sentence imposed was not manifestly excessive. The Crown submits the sentence was arguably below the appropriate range. The other matters raised on appeal, the Crown submits, do not alter the fact that the sentence was within the available range.

1 Crimes Act 1961, s 194(b). Maximum penalty is two years’ imprisonment.
2 New Zealand Police v Hawea [2018] NZDC 3397.

HAWEA v R [2018] NZHC 770 [23 April 2018]

Factual background

[4] On 11 March 2017, the victim was hosting a party at her home which Mr Hawea attended with his partner and their two children. All the adults at the party were drinking. Mr Hawea left the party for an extended period of time and left his children there. While he was away, his children became abusive towards other people at the party.

[5] When Mr Hawea returned in the early hours of 12 March 2017 he was intoxicated. The victim confronted and yelled at Mr Hawea about the behaviour of his children and how he was not looking after them. Mr Hawea punched the victim in the face, just above her left eye. The punch caused the victim’s contact lens to fall out and she suffered a minor bruise and swelling. She did not suffer any lasting injury. The incident led to a fight occurring between Mr Hawea and the other party goers, including the victim’s husband.

Personal circumstances

[6] Mr Hawea was sentenced on 17 July 2017 for a conviction of assault on a child that occurred on 21 March 2017 (nine days after the incident subject to the present appeal). He received a sentence of nine months’ supervision and 100 hours community work. Mr Hawea also has four other convictions for assault (committed in 2016 and 2007). He has 50 other convictions, all of which are for minor and unrelated offences.

Pre-sentence report

[7] The pre-sentence report identifies that this was Mr Hawea’s second violent offence while being subject to release conditions for previous offending. The report commented that Mr Hawea was regretful of his latest offending, but that this was “due to the position he finds himself in, more than any remorse towards the victim.”

[8] The report comments that Mr…

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 Hawea v The Queen

Details

AGLC: Hawea v The Queen [2018] NZHC 770
Case: [2018] NZHC 770
Decision Date: 23 April 2018

CaseChat Overview and Summary

Ruben Hawea appeals his sentence for male assaults female, contending the 100 hours of community work imposed is manifestly excessive. Hawea also submits the Judge erred in treating a previous conviction for assault on a child as an aggravating feature, and that the sentence imposed was not in accordance with an informal sentence indication. The Crown opposes the appeal and argues the sentence imposed was not manifestly excessive and, in any event, was within the available range. The High Court found that, while the Judge did err in taking into account the later conviction of assault on a child as an aggravating feature of this offending, this did not make the sentence manifestly excessive. The Court also found there was no merit in Hawea's submission that the Judge failed to follow an informal sentence indication. Finally, the Court found that the sentence imposed was not manifestly excessive. It was, in fact, within the available range that was open to the Judge. The appeal was dismissed.

Orders