The appellant was convicted on one count of manslaughter following trial by a High Court jury. He was sentenced by Collins J to four years nine months’ imprisonment from a starting point of five years’ imprisonment.[1]
He appeals his sentence on the grounds that the five year starting point adopted by the trial Judge was too high and the Judge erred by adopting the sentencing methodology established in R v Tai without cross-reference to other sentencing cases for manslaughter.[2] Certain factual findings relied on by the Judge, which led him to adopt the starting point of five years’ imprisonment, were also disputed.
The incident resulting in the unfortunate death occurred late in the evening on 13 September 2011. The appellant and a group of associates were walking along High Street in Lower Hutt when the victim, Mr Filipo Sipaia, and two associates approached them by car. Mr Sipaia and his friends were apparently in the area in response to text messages asking them to resolve an issue involving the appellant.
After the vehicle pulled up, one of the appellant’s group approached it and slapped Mr Sipaia in the face. Mr Sipaia then got out of the car and a fight started between the two men. The Judge described this as “mainly a one-on-one tussle”.[3] The two ended up on the ground fighting with each other and it is possible that one or more of the appellant’s party may also have hit Mr Sipaia while they were fighting, one possibly with a bottle. However, the two soon got back onto their feet and neither appeared to have been adversely affected by the fight. The Judge recorded that Mr Sipaia continued to “mouth off” at his assailant and at others in the appellant’s group after he had gotten to his feet.[4]
[3]At [10].
[4]At [11].
The Judge set out the appellant’s actions from that point, as described in the evidence at the trial:[5]
[12] It is at this stage that you entered the scene. I need to carefully explain what I believe you did. In my assessment you approached Mr Sipaia in a way that meant that he did not see the punch you threw. You punched him very deliberately and very forcefully in the right side of his head. Various descriptions have been given of the punch you threw. Mr Fono said it was a “big swing”. Mr Tauvao, an independent witness…
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.
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Details
AGLC
Ioata v R [2013] NZCA 235
Case
[2013] NZCA 235
Decision Date
CaseChat Overview and Summary
Johnathan Ioata appealed his sentence following his conviction for manslaughter. The appeal was against the sentence of four years and nine months' imprisonment with a starting point of five years. Ioata contended that the starting point was too high and that the sentencing approach was incorrect. The Crown submitted that the sentence was appropriate and the starting point was correctly determined. The Court of Appeal found no error in the trial Judge's approach or methodology. The starting point was appropriate and the sentence was not manifestly excessive. The appeal was dismissed.