Ioritana Tuau v The Queen - [2014] NZSC 83

IN THE SUPREME COURT OF NEW ZEALAND

SC 29/2014
[2014] NZSC 83

BETWEEN	IORITANA TUAU Applicant
AND	THE QUEEN Respondent

Court:	Elias CJ, William Young and Arnold JJ
Counsel:	E A Hall for Applicant M H Cooke for Respondent
Judgment:	2 July 2014

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant pleaded guilty to wounding with intent to cause grievous bodily harm and was sentenced by Miller J to nine years imprisonment with a non-parole term of four years six months.[1] The victim suffered catastrophic injuries and is “unable to move purposefully and cannot speak”.[2] The applicant was one of three men involved in the assault. The sentence was arrived at on the basis of a starting point of 12 years (reduced from 14 years to allow for provocation) and reduced by a further 25% for good character (10%) and the guilty plea (15%).
[1]R v Tuau [2013] NZHC 681.
[2]Tuau v R [2013] NZCA 623 [Tuau (CA)] at [7].
The assault occurred in the early hours of 15 September 2011. The applicant was arrested on 20 September 2011, as a result of him having voluntarily gone to the police. On 23 April 2012, the applicant received an end sentence indication of five years three months (which was apparently on the basis that he had stomped on the victim’s head). The applicant was given until 10 May 2012 to consider his position. Whether the applicant had kicked and stomped on the victim’s head, however, remained in contention. When the case was called on 10 May 2012 the Judge proceeded with the committal process (over the opposition of the applicant’s counsel) but she recorded in a notation that the Crown accepted that if “matters” were “resolved” (meaning by a plea of guilty) “after scientific analysis” (a reference to further testing which was to be undertaken) the applicant would be entitled to a “pre-committal credit” (by which was meant a discount of 25%).[3] The results of this further analysis were not provided until 14 January 2013 and on 7 or 8 February 2013, the applicant indicated that he would be pleading guilty. He finally pleaded guilty on 26 February 2013, two weeks before his scheduled trial. The case had been retained in the High Court.
[3]The notation does not expressly refer to a 25% discount albeit that, as explained by counsel, this is what was meant.
The applicant contends that the sentence imposed was manifestly excessive. The submissions in support of the leave application put everything in issue but primarily rely on the fact that Miller J did not allow a 25% discount for the plea of guilty and thus did not honour the indication given on 10 May 2012. From what was said in the Court of Appeal it would appear that Miller J did not have the opportunity to consider the notation made on 10 May 2012.[4]
[4]Tuau (CA), above n 2, at [45].
The Court of…

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

Case: [2014] NZSC 83
Decision Date: 2 July 2014

CaseChat Overview and Summary

The case of Ioritana Tuau v The Queen concerns an application for leave to appeal against a sentence imposed by the High Court. The applicant, Ioritana Tuau, was convicted of wounding with intent to cause grievous bodily harm. The victim of the assault suffered catastrophic injuries. The applicant was one of three men involved in the assault. The case was heard by Elias CJ, William Young and Arnold JJ. The applicant argued that the sentence imposed was manifestly excessive, primarily because the sentencing judge did not allow a 25% discount for the plea of guilty, contrary to an indication given on 10 May 2012. The Court of Appeal had already considered this issue and held that the sentence was within the range available to the sentencing judge. The Supreme Court was required to decide whether the applicant’s appeal raised a question of public or general importance or appeared to show a miscarriage of justice. The Court found that the 10 May 2012 indication was not binding on the sentencing judge and that the applicant did not wish to change his plea on the basis that the sentence imposed was not in accordance with that indication. The Court also found that there was no suggestion that the sentence was outside the range which was available to the sentencing judge. The Court held that there was no question of public or general importance in the proposed appeal and that there was no appearance of a miscarriage of justice. The application for leave to appeal was dismissed.

Orders