Neho v R - [2010] NZCA 8

IN THE COURT OF APPEAL OF NEW ZEALAND
CA656/2009
[2010] NZCA 8
BETWEENABRAHAM NEHO

Appellant

ANDTHE QUEEN

Respondent

Hearing:11 February 2010

Court:Ellen France, Venning and Miller JJ
Counsel:R G Glover for Appellant

N P Chisnall and B P D Leslie for Respondent

Judgment:15 February 2010

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Miller J
[1]        Mr Neho appeals against a sentence of two years, six months imprisonment imposed in the District Court at Christchurch on one count of injuring with intent to injure.[1]
The facts
[1]      R v Neho DC Christchurch CRI-2008-009-003634, 2 October 2009.
[2]        On Tuesday 12 February 2008 the victim was seated by himself on a planter box in Cambridge Terrace, Christchurch. He was in Christchurch with his partner, who was undergoing treatment for cancer at Christchurch Hospital. Another man approached him and engaged him in conversation.
[3]        The victim was then approached by the appellant and an associate. The summary of facts recorded that the appellant without provocation abused the victim, then attempted to grab tobacco and a beer bottle that the victim was holding. A short struggle ensued, but the appellant was pulled away by the man who had been speaking to the victim. The depositions evidence disclosed that that man assaulted the appellant, allegedly strangling him until he lost consciousness, then left the scene.
[4]        The appellant swiftly recovered and returned to the victim, punching him once in the right eye with his left fist. After a short struggle the two men fell to the ground, with the appellant on top. There the appellant punched the victim about 10 to 12 times, causing him to lose consciousness temporarily. The victim suffered a heavily swollen and bruised right eye, temporarily blurred vision, a graze and swelling and bruising.
[5]        The appellant elected trial, which was set down for 27 April 2009. Six days before trial he elected to plead guilty, saying that he wanted to take responsibility for his assault. He was sentenced on 2 October by Judge McElrea.
The sentencing
After reciting the facts the Judge referred to the victim impact statement, recording that it emphasised not only the physical nature of the injuries but also the fact that the victim’s partner witnessed the attack and was distraught and in shock for weeks

as a result. Their relationship ended a few months later, and she told him that the assault and its impact on her was the beginning of the end of the relationship. The victim stated that he was on medication for depression and the appellant had had a permanent effect on his life.
[6]        Having regard to aggravating features of the attack, the Judge took two years imprisonment as an appropriate starting point, citing R v Harris.[2] To that he added a one year uplift for the appellant’s record of violence. The appellant has many previous convictions spanning the period from 1986 to 2007, including some 10 offences for violence.
[2]      R v…

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 Neho v R

Details

AGLC: Neho v R [2010] NZCA 8
Case: [2010] NZCA 8
Decision Date: 15 February 2010

CaseChat Overview and Summary

In the appeal case of Neho v R, the appellant, Abraham Neho, challenges the two-year and six-month imprisonment sentence imposed by the District Court at Christchurch for injuring with intent to injure. Neho, who had a significant history of violent offenses, including a 2003 manslaughter conviction, pleaded guilty to assaulting a victim who was seated in a planter box in Christchurch. The attack involved Neho punching the victim in the eye and subsequently punching him multiple times while he lay on the ground, leading to moderate injuries and psychological effects on the victim.

The legal issues before the Court of Appeal included whether the starting point of two years for the sentence was too high, considering the psychological and relationship aspects of the assault, and if the one-year uplift for previous convictions was excessive. Additionally, the appeal considered whether there were sufficient mitigating factors such as Neho's steps to address his alcohol problem and his intention to change his lifestyle.

The Court of Appeal found that the starting point of two years was appropriate given the unprovoked and violent nature of the assault. The Court considered the overall impact of the offending on the victim, emphasizing the necessity to account for the physical and psychological injuries inflicted. The one-year uplift for previous convictions was deemed reasonable, reflecting Neho's extensive history of violence, lack of insight, and poor motivation for rehabilitation. The Court also found the credit for the guilty plea to be appropriate, and no further month was needed for other mitigating factors. Consequently, the appeal was dismissed.

Orders