Hubbard v The Queen - [2016] NZHC 1311

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI 2015-016-000125 [2016] NZHC 1311

BETWEEN
WAIRANGI HAERENGA HUBBARD

Appellant

AND

THE QUEEN Respondent

Hearing: 18 May 2016

Counsel:

M Tarsau for Appellant
F Cleary for Respondent

Judgment:

16 June 2016

JUDGMENT OF BROWN J

Introduction

[1] The appellant was charged under s 189(1) of the Crimes Act 1961 with injuring Jade Taylor with intent to cause her grievous bodily harm. After a defended hearing on 9–10 November 2015 before Judge W P Cathcart in the District Court at Gisborne the appellant was convicted of the charge. On 29 January 2016 she was sentenced to three years’ imprisonment. The appellant appeals against both the conviction and sentence.

Grounds of appeal

[2] The notice of appeal dated 29 January 2016 specified the grounds of appeal as follows:

Conviction: His Honour erred in finding there was sufficient evidence of party liability under section 66(2) of the Crimes Act of the necessary intent of grievous bodily harm.

Sentence: (a) Sentencing manifestly excessive; (b) Failure to take into account relevant matters.

HUBBARD v THE QUEEN [2016] NZHC 1311 [16 June 2016]

Approach on appeal

[3] On an appeal against conviction under s 229 of the Criminal Procedure Act

2011 the appeal court must allow the appeal if satisfied that:1

(a) the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred; or

(b) in any case, a miscarriage of justice has occurred for any reason. The appeal court must dismiss the appeal in any other case.

[4] An appeal against conviction is by way of rehearing. The approach of the

Court is as explained in Austin, Nichols & Co Inc v Stichting Lodestar:2

Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate Court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate Court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error of the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.

[5] An appeal against sentence is brought under s 244 of the Criminal Procedure Act 2011. Section 250(2) of that Act provides that the High Court must allow the appeal if it is satisfied that:

(a) for any reason there is an error in the sentence imposed on conviction;

and

(b) a different sentence should be imposed.

[6] A different sentence should be imposed when the appellate Judge believes a different type of sentence should be imposed or the length of sentence should be
altered but not in a way that amounts to a minor adjustment or ‘tinkering’. The

1 Criminal Procedure…

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 Hubbard v The Queen

Details

AGLC: Hubbard v The Queen [2016] NZHC 1311
Case: [2016] NZHC 1311
Decision Date: 16 June 2016

CaseChat Overview and Summary

The appellant, Wairangi Haereanga Hubbard, appealed against both her conviction and sentence imposed by the District Court at Gisborne. She was convicted of injuring Jade Taylor with intent to cause her grievous bodily harm and sentenced to three years' imprisonment. The grounds of appeal were that the Judge erred in finding there was sufficient evidence of party liability under section 66(2) of the Crimes Act and that the sentence was manifestly excessive and that the Judge failed to take into account relevant matters. The Court found that the cumulative effect of the several factors present in this case provided ample evidence to justify an inference that at least one of the three women who were directly involved in the assault on Ms Taylor intended to cause her really serious harm. There was no error in the Judge’s approach and the Court came to the same conclusion. The appeal against sentence was also dismissed. The Court found that there was no logical or principled basis to distinguish between the starting point for the appellant and Ms Charlene Taingahue. The appellant’s appeal against conviction and sentence was dismissed.

Orders