Solicitors:
Ms S A Christensen, Ronayne Hollister-Jones and Lellman, Office of Crown Solicitor, Tauranga
Mr G Tomlinson, Gowing & Co. Ltd, Solicitors, Whakatane

POLICE v TEHEI [2013] NZHC 2236 [3 September 2013]

[1] This is a Solicitor-General’s appeal against sentences imposed on the respondent for aggravated robbery and three less serious offences.1 By judgment dated 31 July 2013 I dismissed the appeal with the reasons to follow.2 These are the reasons.

Outline

[2] The robbery occurred in Whakatane in October 2009. The respondent’s first

appearance was on 4 November 2009 when he was remanded on bail without plea to

16 December 2009. He did not attend Court on 16 December and a warrant to arrest was issued. He was not arrested until January 2013. By then the appellant had turned his life around from what it had been, in terms of criminal behaviour, when the robbery was committed. The Judge took a starting point of 4 years 9 months for the robbery. With reductions for various matters I will come to, but in particular the steps the respondent had taken to turn his life around, the Judge arrived at an end sentence for the robbery of 12 months home detention, 200 hours community work and reparation of $775.26. For two offences committed in October 2009 of male assaults female the respondent was sentenced to 150 hours community work on each charge concurrent with the preceding community work sentence. For the breach of bail in December 2009 the respondent was sentenced to 200 hours community work cumulative on the robbery sentence of community work.

[3] The grounds of appeal recorded in Ms Christensen’s submissions are:

(a) The end sentence of 12 months home detention, 400 hours community work and an order to pay $775.26 in reparation was manifestly inadequate to reflect the totality of the offending;

(b) The sentencing approach was wrong in principle, permitting an overly generous and undefined level of credit for mitigating factors;

(c) In combination, the above two factors suggest an artificial tailoring of the sentence to result in an end sentence of 2 years to enable a sentence of home detention to be imposed, which approach would be wrong in principle.

1 Police v Tehei DC Whakatane CRI-2009-087-002172, 5 April 2013.
2 Police v Tehei [2013] NZHC 1917.

The offences

[4] The offences that were first in time were the two offences of male assaults female. Both occurred on 7 October 2009 in Kawerau. The respondent and the victim had been in a relationship…

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 Police v Tehei

Details

AGLC: Police v Tehei [2013] NZHC 2236
Case: [2013] NZHC 2236
Decision Date: 3 September 2013

CaseChat Overview and Summary

The case of Police v Tehei is an appeal by the Solicitor-General against sentences imposed on Wesley Maraurau Tehei for aggravated robbery and three other less serious offences. The robbery occurred in Whakatane in October 2009. Tehei was sentenced to 12 months home detention, 200 hours of community work, and reparation of $775.26 for the robbery, with additional community work sentences for the other offences. The appeal grounds were that the sentence was manifestly inadequate and that the sentencing approach was wrong in principle, potentially leading to an artificial tailoring of the sentence to result in home detention. The court examined whether the sentence was manifestly excessive or wrong in principle, noting that an appellate court should not substitute its opinion for the sentencing judge's. The court found that the sentence was within the judge's discretion, considering Tehei's significant reform and rehabilitation since the offence, and that the sentence met the objectives of accountability, deterrence, and rehabilitation. The appeal was dismissed, and the original sentence was upheld.

Orders