Pui v The Queen - [2014] NZCA 332

IN THE COURT OF APPEAL OF NEW ZEALAND

CA132/2014
[2014] NZCA 332

BETWEEN	TUWHARE HOANI MANA PUI Appellant
AND	THE QUEEN Respondent

CA169/2014
AND BETWEEN	DANIEL WAKA MINOGUE Appellant
AND	THE QUEEN Respondent

CA203/2014
AND BETWEEN	JOSHUA JADE KIRIONA Appellant
AND	THE QUEEN Respondent

Hearing:	9 July 2014
Court:	Wild, Ronald Young and Cooper JJ
Counsel:	S J Zindel and J A Herd for Appellants Pui and Minogue AJD Bamford for Appellant Kiriona C A Harold for Respondent
Judgment:	16 July 2014 at 2.30 pm

JUDGMENT OF THE COURT

The appeals, each against sentence, are dismissed.

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REASONS OF THE COURT

(Given by Ronald Young J)

Introduction

Reginald Mischeski and Hayley Krammer live at their home in Canvastown with their two young children. At about 11 pm on 24 September 2012 the three appellants arrived at their house, assaulted them and demanded drugs and money. At trial the appellants were convicted of burglary. Mr Minogue was found guilty of injuring Ms Krammer with reckless disregard but Mr Kiriona and Mr Pui were found not guilty of that charge. Mr Minogue was found not guilty of threatening to kill Ms Krammer. All of the appellants were found not guilty of aggravated robbery and of wounding Mr Mischeski with intent to cause grievous bodily harm.
In the Nelson District Court, the trial Judge, Judge Tuohy, sentenced Mr Kiriona and Mr Pui to three years and nine months’ imprisonment each[1] and Mr Minogue to five years’ imprisonment.[2] Each appellant appeals against his sentence. The appellants say the Judge effectively sentenced them for an aggravated robbery, a charge they were all acquitted of, and took an incorrect view of the facts. They say as a result the starting point the Judge adopted was too high and the ultimate sentence was clearly excessive.

The Crown case at trial

[1]R v Pui DC Nelson CRI-2012-042-2746, 12 March 2014 [Sentencing notes].

[2]R v Minogue DC Nelson CRI-2012-042-2746, 12 March 2014.

The Crown case was that Mr Joshua Kiriona’s older brother James had arranged for Joshua, Mr Minogue and Mr Pui to go to Mr Mischeski’s home to try to take drugs and money from him. The Crown said that when the three men arrived at the house, Mr Mischeski was on the deck having a cigarette. They confronted Mr Mischeski and he was punched in the mouth. A fight then began between the appellants and Mr Mischeski. Mr Mischeski was on top of Mr Kiriona when Mr Pui grabbed gardening loppers and struck Mr Mischeski on the head a number of times.
In the meantime Mr Minogue went to the house, kicked at the door and tried to intimidate Ms Krammer into letting him inside. She did so. Mr Minogue then punched Ms Krammer twice in the face and demanded pills. He then grabbed a bag of Mr Mischeski’s pain relief pills and some tobacco. Ms Krammer told Mr Minogue to leave. He then kicked her forcefully in the stomach. She was heavily pregnant at…

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 Pui v The Queen

Details

AGLC: Pui v The Queen [2014] NZCA 332
Case: [2014] NZCA 332
Decision Date: 16 July 2014 at 2.30 pm

CaseChat Overview and Summary

The appeal by Pui against The Queen involved the application of the Sentencing Act 2002 in the context of sentencing after a guilty verdict at trial. Specifically, the case centred around section 24 of the Act, which delineates the process for courts to follow when considering facts at sentencing. The appellant, Pui, contested the manner in which the trial court had assessed certain facts during the sentencing phase. The High Court of Australia was tasked with determining whether the trial court had erred in its application of section 24.

The central legal issue before the court was whether there exists a presumption in favour of resolving factual conflicts at sentencing in a manner favourable to the defendant. The appellant argued that section 24 implied such a presumption, whereas the Crown contended that the statutory provision did not support this notion. Furthermore, the court had to interpret whether the High Court's observations in R v Moananui suggested a preference for defendants in the resolution of factual conflicts at sentencing. The court needed to clarify the obligations of both the prosecutor and the offender in proving or disproving facts relevant to sentencing.

The High Court held that section 24 of the Sentencing Act 2002 does not support a presumption in favour of resolving factual conflicts in a manner favourable to the defendant at sentencing. The court clarified that while the prosecutor must prove beyond a reasonable doubt any disputed aggravating fact, the offender must prove on the balance of probabilities any disputed mitigating fact. This interpretation aligns with the statutory language and does not suggest a preference for the defendant. The court also noted that R v Moananui did not establish a precedent for such a presumption. Instead, the case merely observed that a judge should give the benefit of any reasonable doubt to the accused when there is conflicting evidence.

The final orders of the court were that the appeal was dismissed, and the original sentencing decision of the trial court was upheld. The High Court's ruling affirmed the interpretation of section 24 and clarified the roles of the prosecutor and the offender in proving facts at sentencing. The decision underscored that the statutory framework does not inherently favour the defendant in the resolution of factual conflicts during the sentencing phase.

Orders

Orders of the court

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Background

Background to the litigation

As to Mr Zindel’s second ground of appeal, s 24 of the Sentencing Act 2002 now governs proof of facts at sentencing after a guilty verdict at trial. It provides:24 Proof of facts (1) In determining a sentence or other disposition of the case, a court— (a)may accept as proved any fact that was disclosed by evidence at the trial and any facts agreed on by the prosecutor and the offender; and (b)must accept as proved all facts, express or implied, that are essential to a plea of guilty or a finding of guilt. (2)If a fact that is relevant to the determination of a sentence or other disposition of the case is asserted by one party and disputed by the other,— (a)the court must indicate to the parties the weight that it would be likely to attach to the disputed fact if it were found to exist, and its significance to the sentence or other disposition of the case: (b)if a party wishes the court to rely on that fact, the parties may adduce evidence as to its existence unless the court is satisfied that sufficient evidence was adduced at the trial: (c)the prosecutor must prove beyond a reasonable doubt the existence of any disputed aggravating fact, and must negate beyond a reasonable doubt any disputed mitigating fact raised by the defence (other than a mitigating fact referred to in paragraph (d)) that is not wholly implausible or manifestly false: (d)the offender must prove on the balance of probabilities the existence of any disputed mitigating fact that is not related to the nature of the offence or to the offender's part in the offence: (e)either party may cross-examine any witness called by the other party. (3) For the purposes of this section,— aggravating fact means any fact that— (a)the prosecutor asserts as a fact that justifies a greater penalty or other outcome than might otherwise be appropriate for the offence; and (b)the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case mitigating fact means any fact that— (a)the offender asserts as a fact that justifies a lesser penalty or other outcome than might otherwise be appropriate for the offence; and (b)the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case. There is nothing in s 24 which supports counsel’s submission of a presumption in favour of resolving factual conflicts in a manner favourable to a defendant at sentencing. Nor did this Court in R v Moananui say this was the approach a court should take at sentencing. In R vMoananui this Court said:[6]If there is conflicting evidence the Judge will have to make his own assessment of the facts, giving the benefit of any reasonable doubt to the accused.[6]At 543. That observation reflects nothing more than what is said in s 24(2)(c): that before a Judge can take an aggravating fact into account that fact must be adequately proved. Beyond that, it says nothing about any preference in favour of a defendant.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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