Heke v R

Case [2010] NZCA 476 19 October 2010

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA423/2010
[2010] NZCA 476
BETWEENNYAL HEKE

Appellant

ANDTHE QUEEN

Respondent

Hearing:11 October 2010

Court:Chambers, Ronald Young and Keane JJ
Counsel:P T R Heaslip for Appellant

S B Edwards for Respondent

Judgment:19 October 2010 at 3.30 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Ronald Young J)
Introduction
[1]        Nyal Heke together with Jamie Fitzgerald and Rex Daley were convicted after trial in the District Court of wounding Joseph Lepper at Auckland’s Paremoremo prison with intent to cause him grievous bodily harm. A fourth accused, Bayden Dunn, was acquitted.
[2]        All offenders were eligible for preventive detention. The trial Judge, Judge Hubble, sent all three accused to the High Court for sentence. In doing so he gave his view of the relevant facts and in particular whether the offending was premeditated.
[3]        In the High Court Hugh Williams J sentenced the appellant to seven and a half years’ imprisonment based, in part, on Judge Hubble’s findings and on his own assessment of the facts.[1]
[1]     R v Heke HC Auckland CRI-2008-044-8370, 4 June 2010.
[4]        The appellant’s case is that the evidence given at trial did not justify the sentencing Judge’s conclusions as to premeditation. Further, the appellant says the Judge should have accepted that the appellant had been provoked by the victim’s actions and that the appellant’s initial response to the victim’s actions had been in self-defence. In this appeal the appellant says, therefore, that if this view of the facts were accepted, then the resulting sentence was manifestly excessive. Counsel for the appellant agreed, however, that if the sentencing Judge’s view of the facts was correct then there could be no complaint about the final sentence.
[5]        The appellant accepted the process undertaken by the sentencing Judge in making his own assessment of the relevant facts for the purpose of sentencing, and in giving Judge Hubble’s views due weight, was as contemplated by s 24 of the Sentencing Act 2002.
Facts
[6]        The appellant and his two co‑offenders, Mr Daley and Mr Fitzgerald, were inmates at Auckland prison, Paremoremo. The complainant was on the same landing as Mr Daley and Mr Heke. Mr Fitzgerald was on a different landing although in the same block at the prison. The Crown case was that the offenders believed the victim had previously seriously assaulted Mr Daley’s birth father. The Crown said that the events arose when Mr Heke filled a jug with boiling water and entered the victim’s cell and threw the boiling water at him. Mr Lepper raised his hands to his face and the boiling water hit him on the arm. The appellant was charged with disfiguring Mr Lepper with intent to cause grievous bodily harm. At trial he was found not guilty by the jury.
[7]        After the boiling water was thrown the victim punched the appellant and forced him out of his cell. Shortly afterwards the Crown said four men…

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 Heke v R

Details

AGLC: Heke v R [2010] NZCA 476
Case: [2010] NZCA 476
Decision Date: 19 October 2010

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of Nyal Heke v R concerns an appeal against sentence. Heke, along with two co-offenders, was convicted of assaulting Joseph Lepper at Paremoremo prison with intent to cause grievous bodily harm. The appeal focuses on the severity of the sentence and whether it was justified by the facts of the case. The appellant argues that the evidence did not support the sentencing judge's findings of premeditation, self-defence, and provocation, and that the sentence was therefore excessive. The legal issues revolve around the appropriate standard of review for the Court of Appeal in assessing the facts relevant to sentencing and whether the sentence imposed was within the appropriate range.

The Court of Appeal found that the standard of review required by Section 24 of the Sentencing Act 2002 obligated the court to consider the evidence and reach its own opinion on the facts in dispute. This approach aligns with the Supreme Court's view in Austin, Nichols & Co v Stichting Lodestar, which holds that the appellate court should not defer to the lower court's assessment of the evidence if it reaches a different conclusion. The Court concluded that the sentencing judge's findings of premeditation and the rejection of self-defence and provocation claims were supported by the evidence, including the preparation of weapons and the nature of the attack. The Court found that the sentence, while severe, was not manifestly excessive given the facts of the case. Therefore, the appeal against the sentence was dismissed.

Orders