Herewini v The King - [2023] NZCA 519

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA96/2023
[2023] NZCA 519

BETWEEN	VINNIE HEREWINI Appellant
AND	THE KING Respondent

Hearing:	22 August 2023
Court:	Goddard, Whata and Downs JJ
Counsel:	G H Vear and S N Cameron for Appellant I S Auld for Respondent
Judgment:	26 October 2023 at 10.00 am

JUDGMENT OF THE COURT

AThe appeal against conviction for assault with a weapon is allowed. The conviction on that charge is set aside. A retrial on that charge is ordered.
BThe appeal against conviction for aggravated robbery is dismissed.
C The appeal against sentence on the charge of aggravated robbery is allowed. The sentence is set aside. The proceeding is remitted to the District Court for resentencing.
DAny question of bail is to be determined by the District Court.

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REASONS OF THE COURT

(Given by Whata J)

Mr Herewini was found guilty on one charge of aggravated robbery and one charge of assault with a weapon. He was sentenced to three years and six months’ imprisonment. He appeals his conviction and sentence.

Facts (in summary)

Mr Herewini and Mr Whiunui are associated with the Flaxmere chapter of the Mongrel Mob. On the morning of 7 October 2020, they drove to the Hastings KFC. On arrival, they saw James Rivers there, wearing a black hooded sweatshirt displaying Black Power insignia and a blue hat. Mr Herewini and Mr Whiunui left their vehicle to confront him. Mr Whiunui appeared to be armed with something similar to a tyre iron. Mr Rivers produced a knife. Mr Whiunui dropped what he was carrying and retrieved a golf club from his car. They faced off, Mr Herewini watching. Mr Whiunui struck Mr Rivers with the club. Mr Rivers lost his blue cap. Mr Herewini picked it up. Mr Whiunui then lost his balance and dropped the golf club.
Mr Herewini bent down towards the club. Mr Rivers rushed towards him and collided with him. Mr Herewini says he was stabbed at this point. Mr Rivers took off, Mr Whiunui in close pursuit. Further violence unfolded. Mr Rivers was wrestled to the ground and Mr Whiunui had him in a chokehold. Mr Herewini struck Mr Rivers with the golf club and kicked him. The club snapped. Mr Herewini then grabbed Mr Rivers and removed the hoodie. He walked away. Mr Rivers, still in the chokehold, stabbed frenziedly over his shoulder, one stab landing just below Mr Whiunui’s eye. Mr Rivers briefly freed himself, but the wrestling continued. Mr Herewini re-joined the fray until Mr Rivers was disarmed. Mr Herewini and Mr Whiunui then left with the cap, the hoodie and the knife.
Mr Herewini and Mr Whiunui were charged with aggravated robbery and assault with a weapon. At trial the Crown claimed that they were bent on taking Mr Rivers’ colours and succeeded in doing so. Mr Herewini claimed that they confronted Mr Rivers because he was in their gang territory, and they wanted him to…

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 Herewini v The King

Details

AGLC: Herewini v The King [2023] NZCA 519
Case: [2023] NZCA 519
Decision Date: 26 October 2023 at 10.00 am

CaseChat Overview and Summary

Vinnie Herewini appealed against his conviction and sentence for aggravated robbery and assault with a weapon. The appeal centred on various alleged errors during the trial and the sentencing. The Court of Appeal allowed the appeal against the conviction for assault with a weapon and set aside the conviction, ordering a retrial. However, the appeal against the conviction for aggravated robbery was dismissed. The Court also allowed the appeal against the sentence on the charge of aggravated robbery, setting aside the sentence and directing the District Court to re-sentence Herewini once the outcome of the retrial on the assault with a weapon charge is known. The Court held that the trial judge erred in withdrawing the defences of self-defence and defence of another from the jury, which led to the conviction for assault with a weapon being set aside. While the summing up appeared to favour the Crown's case, the Court found that the summing up as a whole did not lack balance. The other grounds of appeal were found to lack merit. Regarding the sentence appeal, the Court held that the starting point adopted by the trial judge was too high, and the sentence was set aside pending the outcome of the retrial on the assault with a weapon charge. Any question of bail pending retrial and re-sentencing was to be dealt with by the District Court.

Solicitors: Ratonga Wawao ā-Ture Tūmatanui | Public Defence Service, Tauranga for Appellant
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent

Orders