Maihi v R - [2016] NZCA 205

IN THE COURT OF APPEAL OF NEW ZEALAND

CA507/2015
[2016] NZCA 205

BETWEEN	LUKE NAHI CAIN MAIHI Appellant
AND	THE QUEEN Respondent

Hearing:	2 May 2016
Court:	Kós, Courtney and Gilbert JJ
Counsel:	G A Walsh for Appellant P K Feltham for Respondent
Judgment:	16 May 2016 at 12.00 pm

JUDGMENT OF THE COURT

A The appeal is allowed.

BThe effective end sentence of six years, four months’ imprisonment is set aside and replaced with an end sentence of five years, six months’ imprisonment as set out in [34] of this judgment.

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REASONS OF THE COURT

(Given by Gilbert J)

Introduction

Mr Maihi pleaded guilty to one charge of wounding with intent to injure[1] and three charges of injuring with intent to injure[2] arising out of four separate attacks against his partner over a 19 month period. He also pleaded guilty to assault on a child which occurred during the course of one of these attacks.[3] He was sentenced by Judge Cocurullo in the District Court at Hamilton on 2 September 2015 to a combination of cumulative and concurrent sentences resulting in an end sentence of six years and four months’ imprisonment.[4]
[1]Crimes Act 1961, s 188(2).
[2]Crimes Act 1961, s 189(2).
[3]Crimes Act 1961, s 194(a).
[4]R v Maihi [2015] NZDC 17525.
Mr Maihi appeals against this sentence on the ground that it is manifestly excessive. In particular, he contends that the overall starting point adopted of eight years’ imprisonment is disproportionate to the totality of his offending.

The facts

First attack — injuring with intent to injure — 24 December 2012

On 24 December 2012, the victim told Mr Maihi that she was pregnant to him. She also told him that their relationship was over due to ongoing domestic abuse. That night, Mr Maihi approached the victim while she was in the kitchen. After verbally abusing her, Mr Maihi punched her in the head, knocking her to the ground. While she was on the ground, he kicked her multiple times in the head, even as she attempted to crawl away and was fading in and out of consciousness. Mr Maihi only desisted in the attack after other people in the house intervened.
The victim spent one night in hospital where she received treatment for her injuries, being cuts and swelling to her head, including her right eye socket; loss of sensation of her right cheek and upper teeth; tenderness in her jaw and neck; and bruising to her lower back and forearms.

Second attack — injuring with intent to injure, assault on a child — 30 October 2013

Around 30 October 2013, the victim was at home lying in bed with the couple’s three month old daughter. Mr Maihi climbed into the bedroom through a window and accused the victim of being unfaithful. He stood on the bed with one foot either side of the victim and leaned down towards her. Without warning, he punched the victim in the head numerous times. One or more 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.

Continue reading Maihi v R

Details

AGLC: Maihi v R [2016] NZCA 205
Case: [2016] NZCA 205
Decision Date: 16 May 2016 at 12.00 pm

CaseChat Overview and Summary

Luke Nahi Cain Maihi appeals against his sentence on the ground that it is manifestly excessive. Mr Maihi pleaded guilty to one charge of wounding with intent to injure and three charges of injuring with intent to injure arising from four separate attacks against his partner over a 19-month period. He was sentenced to a combination of cumulative and concurrent sentences resulting in an end sentence of six years and four months’ imprisonment. The Court of Appeal considered the legal issues surrounding the imposition of cumulative sentences for multiple violent offences against the same victim, and whether the overall sentence was disproportionate to the gravity of the offending. The Court found that while the individual starting points adopted by the Judge were appropriate, the overall starting point of eight years’ imprisonment for all of the offending against Mr Maihi’s partner was disproportionate. The Court substituted an overall starting point of six years, six months’ imprisonment, and allowed uplifts and discounts for prior convictions, personal mitigating factors and guilty pleas. The effective end sentence is reduced from six years, four months’ to five years, six months’ imprisonment. The appeal is allowed, and the following sentences are confirmed or substituted as shown.

Orders