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Huata v R

Huata v R

Case [2013] NZCA 470 10 October 2013

Sentencing

Attempted Murder

Wounding with Intent

Attempting to Dissuade a Witness

Mens Rea & Intention

Criminal Liability

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA734/2012
[2013] NZCA 470

BETWEEN	JAMES MAXWELL NGARI HUATA Appellant
AND	THE QUEEN Respondent

CA745/2012
AND BETWEEN	THOMAS JOHN HUATA Appellant
AND	THE QUEEN Respondent

Hearing:	19 August 2013 (memorandum received from the Crown on 4 September 2013)
Court:	French, Rodney Hansen and Mallon JJ
Counsel:	A J S Snell for Appellant James Huata J S Jefferson for Appellant Thomas Huata D R La Hood for Respondent
Judgment:	10 October 2013 at 11.00 am

JUDGMENT OF THE COURT

AJames Huata’s appeal against sentence is dismissed.
BThomas Huata’s appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

James and Thomas Huata are members of the Black Power gang.[1] They pleaded guilty in the High Court to a number of offences arising out of the shooting of a rival gang member. Both pleaded guilty to a charge of wounding with intent to cause grievous bodily harm and attempting to dissuade a witness. Thomas Huata also pleaded guilty to additional charges of arson and theft. Justice Collins sentenced each of them to a term of imprisonment of 12 years and three months.[2] They now appeal their sentences on the grounds that they were manifestly excessive.
[1]James Huata is not a patched member. Thomas Huata is a patched member.
[2]R v Huata [2012] NZHC 2735.
The key issues raised by the appeals are:
(a)Was the Judge’s starting point on the lead offence of wounding with intent to case grievous bodily harm too high?
(b)Was the Judge justified in imposing a cumulative sentence of two years’ imprisonment for the offence of attempting to dissuade a witness?
(c)Were the discounts given for personal factors (age and guilty pleas) inadequate?

Factual background

The appellants are cousins. On 29 October 2010, they and another Black Power associate drove from Napier to Wairoa with the purpose of exacting revenge for the recent shooting of a fellow Black Power member by the Mongrel Mob. The car was stolen, Thomas Huata having intimidated its 15 year old owner into handing it over to him earlier that day. With them was a loaded sawn off shotgun.
On arrival in Wairoa, they drove around the township looking for a Mongrel Mob member to shoot. At approximately 6.30 pm they noticed Paul Kahukura, a patched Mongrel Mob member who happened to be filling his car at a local petrol station. After filling his car, Mr Kahukura got back into the driver’s seat and waited for his 13 year old son, who was inside the store paying for the petrol. Mr Kahukura’s wife was sitting beside him in the front passenger seat.
Upon seeing Mr Kahukura, Thomas Huata drove down a side street and parked out of sight behind the petrol station. James Huata then covered his face with a dark coloured bandanna and armed himself with the sawn off shotgun.
As Mr Kahukura sat waiting in his vehicle, James Huata ran up to the driver’s window, which was…

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 Huata v R

Details

AGLC: Huata v R [2013] NZCA 470
Case: [2013] NZCA 470
Decision Date: 10 October 2013 at 11.00 am

CaseChat Overview and Summary

James and Thomas Huata, both members of the Black Power gang, appealed against their sentences for offences arising from the shooting of a rival gang member. The Court of Appeal considered whether the starting point and uplifts applied by the trial judge were excessive, as well as the discounts given for the appellants' ages and guilty pleas. The Court found that the starting point of 11 years was appropriate and that the two-year uplift for attempting to dissuade a witness was not excessive. The Court also found that the trial judge's refusal to apply a youth discount was a legitimate exercise of discretion, given the seriousness of the offending. Finally, the Court held that the discount for the guilty pleas was adequate, and that any additional discount would have resulted in only a minor reduction in the sentence. The appeals were dismissed.

Orders