Hemaloto v The Queen - [2014] NZCA 335

IN THE COURT OF APPEAL OF NEW ZEALAND

CA676/2013
[2014] NZCA 335

BETWEEN	PEDRO PETELO PUA HEMALOTO Appellant
AND	THE QUEEN Respondent

Hearing:	18 June 2014
Court:	White, Keane and MacKenzie JJ
Counsel:	C J Tennet and V L Pomeroy for Appellant K Raftery for Respondent
Judgment:	18 July 2014 at 10.00 am

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

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REASONS OF THE COURT

(Given by Keane J)

Introduction

On Thursday 5 May 2011, in the early hours of the morning, there was an incident in Wyndham Street, Auckland, involving a large number of people, during which a bystander (the first victim), aged 18, who had assisted a doorman, (the second victim), was knocked to the ground and subjected for two minutes to extreme violence. He suffered fractures to his skull, bleeding to his brain, and facial and other injuries. He was in a critical condition in hospital for several days.
The appellant, Pedro Hemaloto, aged 22, and his younger brother, Sean Hemaloto, aged 19 at the time of the offending, were charged with offences against the victims, as were two others. A trial in the Auckland District Court before Judge Cunningham and a jury over twelve days ensued.
Before trial Sean Hemaloto pleaded guilty to assaulting the second victim. At trial Jonathan Latu, aged 23, denied and was acquitted of causing the second victim injury with that intent, and of assaulting him. Sean Hemaloto, Jessie Julio, aged 18, and Pedro Hemaloto, were charged with, and denied, causing the first victim grievous bodily harm with intent to cause him harm to that degree. At trial all three were found guilty of that offence.
The Crown’s case was that Sean Hemaloto had led the attack on the first victim and that he had, when the first victim was reduced to the ground, kicked him to, or stamped on, his head. On sentence Judge Cunningham, sentenced him to imprisonment for five years. On the Crown case Jessie Julio was also implicated in that attack to the first victim’s head and was sentenced to imprisonment for four years and seven months.
On the Crown case, the appellant, Pedro Hemaloto, was significantly less involved, and had earlier tried to restrain his brother. But, when interviewed after his arrest and shown a photograph in which he was standing over the first victim alongside his brother, he admitted kicking the first victim once to his torso. On the Crown case, he committed that assault during the attack to the first victim’s head, or just afterwards; and must have assaulted the first victim more extensively.
On sentencing, Judge Cunningham held Mr Hemaloto accountable for the single kick to the torso he admitted, but also held that he must have inflicted that kick when the assault to the first victim’s head was happening, or soon after; and to that extent participated in the more serious assault. She sentenced him (as a party) to imprisonment for four years. He appeals both his conviction…

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 Hemaloto v The Queen

Details

AGLC: Hemaloto v The Queen [2014] NZCA 335
Case: [2014] NZCA 335
Decision Date: 18 July 2014 at 10.00 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appeal of Pedro Petelo Pua Hemaloto against his conviction and sentence was dismissed. The incident in question occurred on 5 May 2011 in Wyndham Street, Auckland, where a large group of people were involved in an assault on a bystander who had assisted a doorman. Hemaloto and his brother, along with two others, were charged with causing grievous bodily harm with intent to the first victim. Hemaloto appealed both his conviction and sentence, arguing that the trial judge misdirected the jury in her responses to questions posed during deliberations, and that the sentence was inappropriate. The Court of Appeal found that the trial judge's responses to the jury's questions were appropriate and that the sentence was proportionate to the offence committed by Hemaloto.

The legal issues in this case involved the trial judge's direction to the jury on party liability and the appropriate sentence for Hemaloto. The Court of Appeal found that the trial judge's direction to the jury was clear and concise, and her responses to the jury's questions were appropriate. The Court also found that the sentence imposed on Hemaloto was proportionate to the offence he committed, taking into account his level of involvement in the assault and his remorse. The Court of Appeal dismissed Hemaloto's appeal against both his conviction and sentence.

Final orders: The appeal against conviction and sentence is dismissed.

Orders