Hearing:	11 November 2013
Court:	Wild, Asher and Dobson JJ
Counsel:	V C Nisbet and P A Walker for Namana N Levy for Thompson H W Ebersohn for Respondent
Judgment:	11 December 2013 at 3 pm

JUDGMENT OF THE COURT

AMr Namana’s appeal, both against conviction and against sentence, is dismissed.
BMr Thompson’s appeal, which is also against both conviction and sentence, is also dismissed.

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REASONS OF THE COURT

(Given by Wild J)

Introduction

Both appellants appeal against their conviction and sentence.
The two appellants, together with Nigel Archibald and Ngahina Matiaha, were tried in the District Court at Wellington in November 2012. Together with Mr Archibald, both appellants were charged with aggravated robbery. The two appellants and Mr Matiaha were also charged with wounding with intent to cause grievous bodily harm. The jury found the two appellants guilty of both charges, Mr Archibald guilty of aggravated robbery and Mr Matiaha guilty on the wounding charge.
Judge Mill sentenced the two appellants together with Messrs Archibald and Matiaha on 30 January this year.[1] Mr Namana was sentenced to an effective sentence of nine years imprisonment, Mr Thompson to 10 years. Mr Archibald was sentenced to three years imprisonment and Mr Matiaha to two years three months imprisonment.
[1]R v Archibald DC Wellington CRI-2011-035-1557, 30 January 2013 [Sentencing notes].
Mr Namana appeals his conviction on the grounds that the Judge failed adequately to:

direct the jury about the unreliability of the evidence of the Crown’s two main witnesses, Messrs Howes and Hodson; and
caution the jury about prejudice, given that all four accused were involved in the Nomads gang, and that the events which featured in the trial were gang related.

On his appeal against sentence, Mr Namana’s submission is that the Judge’s sentencing starting point of eight years imprisonment on the aggravated robbery charge was too high, resulting in a sentence that is manifestly excessive. The submission is that the appropriate starting point was six to seven years.
Mr Thompson’s appeal against conviction is differently grounded. He submits that his trial counsel, Ms Elder, did not put his defence resulting in a miscarriage of justice. There is no dispute that the agreed defence was an alibi one – that Mr Thompson could not have been involved in either the aggravated robbery or the wounding, because he was elsewhere at the relevant time. Mr Thompson had told the police he was at the home of his co-accused Mr Archibald throughout the evening when the offending occurred.
On his sentence appeal, Mr Thompson submits that his sentence of 10 years imprisonment is manifestly excessive, and that the disparity with the sentence of four years imprisonment imposed on Mr Howes, who was also involved in the aggravated robbery but was sentenced separately, is gross and unjustifiable.

What happened

The…

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 Namana v R

Details

AGLC: Namana v R [2013] NZCA 640
Case: [2013] NZCA 640
Decision Date: 11 December 2013 at 3 pm

CaseChat Overview and Summary

The appeal by Bon Vincent Namana and Paul Anthony Thompson against their conviction and sentence was dismissed by Wild J in the Court of Appeal of New Zealand. Both appellants were tried in the District Court at Wellington in November 2012 and found guilty of aggravated robbery and wounding with intent to cause grievous bodily harm. Namana was sentenced to an effective sentence of nine years imprisonment, and Thompson to 10 years. Namana appealed his conviction on the grounds that the judge failed to direct the jury about the unreliability of the evidence of the Crown’s two main witnesses and caution the jury about prejudice, given that all four accused were involved in the Nomads gang, and that the events which featured in the trial were gang related. Thompson appealed his conviction on the basis that his trial counsel failed to put his defence resulting in a miscarriage of justice. The Court found that the Judge’s directions to the jury were comprehensive and fair and dismissed both appeals against conviction. Namana appealed his sentence on the basis that the starting point of eight years imprisonment on the aggravated robbery charge was too high. The Court found that the eight-year starting point adopted by the Judge, though stern, was not manifestly too high and dismissed the appeal against sentence. Thompson appealed his sentence on the basis that the disparity between the sentence of four years imprisonment imposed on Howes and the 10 years imposed on him was too great to withstand the well-established disparity test. The Court found that the disparity could be adequately explained by Howes' guilty plea and cooperation with the police and dismissed the appeal against sentence.

Orders