Mareikura v R - [2012] NZCA 108

IN THE COURT OF APPEAL OF NEW ZEALAND

CA551/2011
[2012] NZCA 108

BETWEEN RICO HURIANO MANUELLA MAREIKURA
Appellant

AND THE QUEEN
Respondent

Hearing: 14 March 2012

Court: O'Regan P, MacKenzie and Asher JJ

Counsel: J B M Henderson for Appellant
B C L Charmley for Respondent

Judgment: 27 March 2012 at 10.30 am

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe sentence of five and a half years imprisonment is quashed and a sentence of four and a half years imprisonment is substituted.
CThe minimum period of imprisonment is quashed.

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REASONS OF THE COURT

(Given by MacKenzie J)

Introduction

The appellant was convicted following trial in the District Court at New Plymouth on one count of wounding with intent to cause grievous bodily harm. On 29 August 2011 the appellant was sentenced by Judge Roberts to five and a half years imprisonment with a minimum period of imprisonment of one half of that sentence.[1] He appeals against that sentence.

Facts

[1] R v Mareikura DC New Plymouth CRI-2010-043-3769, 29 August 2011.

The appellant and his partner were walking down Egmont Street in New Plymouth when they encountered the victim, who had been drinking and was having trouble finding his car. They stopped to assist him. The Judge in his sentencing notes briefly described the events in these terms:
[2] As to the trial facts, your victim the complainant, was undoubtedly drunk and was a thorough nuisance. Whatever the trigger was for the initial exchange between the two of you, the independent evidence has both of you, you and your partner, and your victim in the middle of Egmont Street in a confrontation. I am in no doubt that he was then aggressive. I am in no doubt that in removing some of his clothing to the upper body he was seeking out with you confrontation. You were literally in retreat, backing away from him with your partner. In those circumstances, though, you produced a blade. You struck him in the side of his face, the blade penetrated his cheek, his tongue, damaged some of his teeth and severed an artery.
The victim’s wounds were serious. They required surgery, including stitches to his tongue which later burst and required re-hospitalisation. The blade went between two teeth causing major damage necessitating a complete rebuild of the bottom side of the teeth and removal of a wisdom tooth.

Sentencing remarks

The Judge regarded the offending as being within band two of R v Taueki,[2] and adopted a starting point of six years, which he described as:
[10] … slightly elevated from the base level of five years detailed in paragraph 37 in Taueki dealing with the band 1 street attack, having regard to the effect those injuries had on the victim.
[2] R v Taueki [2005] 3 NZLR 372 (CA).
The Judge allowed a discount of six months from that starting point, to reflect electronically monitored bail where “for a period approaching seven months there were no instances at all…

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 Mareikura v R

Details

AGLC: Mareikura v R [2012] NZCA 108
Case: [2012] NZCA 108
Decision Date: 27 March 2012

CaseChat Overview and Summary

Rico Huriano Manuella Mareikura appeals against his conviction and sentence imposed by the District Court at New Plymouth. He was convicted of one count of wounding with intent to cause grievous bodily harm. Following the trial, the appellant was sentenced to five and a half years imprisonment with a minimum non-parole period of half that sentence. The appeal is against the sentence imposed. The court was required to decide whether the six-month discount for restrictive bail conditions was sufficient, whether the judge should have imposed a minimum period of imprisonment, whether the starting point of six years was excessive, and whether the judge should have taken into consideration the conduct of the victim. The court found that the starting point of six years was excessive, taking into account the conduct of the victim. The court found that the six-month discount for restrictive bail conditions was generous. The court found that the imposition of a minimum period of imprisonment was not appropriate, given the mitigating factor of the victim's conduct. The appeal is allowed, the sentence is quashed and a sentence of four and a half years imprisonment is substituted. The minimum period of imprisonment is quashed.

Orders