Kulimoeanga v R - [2016] NZCA 129

IN THE COURT OF APPEAL OF NEW ZEALAND

CA143/2015
[2016] NZCA 129

BETWEEN	WAME ROKOUA KULIMOEANGA Appellant
AND	THE QUEEN Respondent

Hearing:	15 February 2016
Court:	Stevens, Simon France and Ellis JJ
Counsel:	M J Phelps for Appellant K S Grau and Y Moinfar for Respondent
Judgment:	15 April 2016 at 10.00 am

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellis J)

Mr Kulimoeanga was sentenced to three years and nine months’ imprisonment after a jury found him guilty of one count of injuring with intent to cause grievous bodily harm and one count of unlawfully carrying a firearm.[1] He was acquitted on charges of kidnapping and injuring with intent to injure, and discharged on a further count of injuring with intent to cause grievous bodily harm when the jury could not reach a verdict. His co-offender was acquitted on all charges.
[1]R v Kulimoeanga [2015] NZDC 1360.
Mr Kulimoeanga now appeals both his conviction and sentence.

Background

Mr Kulimoeanga had a grievance with a number of individuals and, in circumstances which are not presently relevant, went with his co-offender to their house in Flaxmere. In short, he believed that one of the occupants, Mr Esi Pailate, had been involved in a burglary at his home and that some of the stolen property might be at the Flaxmere house. Mr Kulimoeanga took a baseball bat with him to the house and his co-offender had a shotgun.
The two men confronted the occupants as they searched for Mr Kulimoeanga’s stolen property. Mr Kulimoeanga struck Mr Elone Vaitaki a blow to the neck, using the baseball bat. Mr Vaitaki did not give evidence at trial but other witnesses said he was knocked to the ground and appeared to have been stunned or rendered temporarily unconscious. This was the basis for the fourth charge, injuring with intent to cause grievous bodily harm.
The third charge (a further count of injuring with intent to cause grievous bodily harm), on which the jury could not reach a verdict, related to an allegation that he had hit another of the occupants, Mr Lauti Pailate, on the arm with the bat when the occupant had tried to defend himself from a blow directed at his head.
While at the property, Mr Kulimoeanga’s co-offender presented the shot gun and made threats to some of the occupants, including pointing it at children who were there. Mr Kulimoeanga was convicted as a party to the firearm offence, although the person charged as his co-offender was acquitted due to uncertainty over his identification.
At trial, one strand of the defence case was that Mr Kulimoeanga had gone to the Flaxmere address to look for his stolen property, and that what then occurred had been exaggerated by witnesses to deflect attention from the involvement of one of their number in the burglary at Mr Kulimoeanga’s home. Defence counsel sought to build a foundation for this inference by establishing that…

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 Kulimoeanga v R

Details

AGLC: Kulimoeanga v R [2016] NZCA 129
Case: [2016] NZCA 129
Decision Date: 15 April 2016 at 10.00 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand dismissed the appeals against conviction and sentence brought by WAME ROKOUA KULIMOEANGA. The appellant was sentenced to three years and nine months’ imprisonment after being found guilty of injuring with intent to cause grievous bodily harm and unlawfully carrying a firearm. The appeal contested both the conviction and the sentence, arguing that the non-disclosure of a Police job-sheet led to a miscarriage of justice and that the verdict on the charge of injuring with intent to cause grievous bodily harm was unreasonable. The court found that the non-disclosure of the job-sheet did not result in a miscarriage of justice, as any prejudice to the defence was minor. The jury's verdict on the charge of injuring with intent to cause grievous bodily harm was also deemed reasonable, as there was sufficient evidence to support the conviction. Regarding the sentence, the court concluded that the starting point for the totality of offending was appropriate, and the final sentence of three years and nine months’ imprisonment was not manifestly excessive.

The appeals against conviction and sentence are dismissed.

Orders