R v Heitia - [2009] NZCA 398

IN THE COURT OF APPEAL OF NEW ZEALAND

CA10/2009
[2009] NZCA 398

THE QUEEN

NELSON HEITIA

Hearing:31 August 2009
Court:Glazebrook, Gendall and Asher JJ
Counsel:Appellant in person

K J Beaton for Crown
Judgment:10 September 2009 at 3.00 pm

JUDGMENT OF THE COURT

A APPLICATION TO ADDUCE EVIDENCE DECLINED.

B APPEAL AGAINST SENTENCE DISMISSED.

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REASONS OF THE COURT

(Given by Gendall J)

The appellant was convicted by a jury in the Hamilton District Court of wounding with intent to cause grievous bodily harm. He was sentenced to eight years imprisonment and appeals against that sentence.

Background

On the afternoon of 4 September 2007, the appellant, accompanied by five other men, went to a house in Hamilton. One of the occupants of the house was known to an associate of the appellant. The visiting group had not been invited and the reason for their visit is not known. The complainant was present at the house, assisting his uncle who was unwell and asleep in the lounge.
Some form of altercation occurred when the complainant came upon both the appellant and others in the group trying to steal an Eftpos card from his sleeping uncle. He ordered the group from the house and the tempers of the appellant and Mr William Wirihana became inflamed, to the extent that they set upon the complainant. A prolonged violent and vicious attack ensued, in which Mr Wirihana held the complainant whilst the appellant punched him about the head and body and then repeatedly kicked his head and body. District Court Judge Spear presided at the trial and at sentence said:
[8] …At some stage, [the complainant] ended up on the ground, covering up, trying to protect himself. That did not stop you, however, and you continued with your frenzied attack on him kicking him with your steel capped boots and also your fists.
[9] The next door neighbours witnessed what was happening…They believed that they were watching [the complainant] being beaten to death such was the ferocity of your attack on him.
The complainant suffered intense bruising and swelling to the head and skull and a laceration extending through the full thickness of skin to the underlying bone above the right cheek bone. In addition, he suffered bruising to the eyes and arms.
The appellant’s co-offender, Mr Wirihana, pleaded guilty at an early stage and was sentenced by District Court Judge Burnett to five years and four months’ imprisonment. Her Honour regarded Mr Wirihana as a secondary offender and took a starting point in the region of six and a half to seven and a half years imprisonment and allowed a significant discount for the early guilty plea.
When sentencing the appellant, Judge Spear adopted a starting point of eight years imprisonment based upon the approach mandated in R v Taueki [2005] 3 NZLR 372 (CA). The Judge said he recognised the need for there to be a proper correlation between the sentences imposed on the two offenders. While he did refer to 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 R v Heitia

Details

AGLC: R v Heitia [2009] NZCA 398
Case: [2009] NZCA 398
Decision Date: 10 September 2009

CaseChat Overview and Summary

Nelson Heitia was convicted of wounding with intent to cause grievous bodily harm and sentenced to eight years imprisonment. The appellant appealed against his sentence. The case came before Glazebrook, Gendall, and Asher JJ of the Court of Appeal of New Zealand. The appellant submitted a statement from a co-offender, William Wirihana, seeking to introduce it as evidence. The Crown opposed this, and the Court declined to admit the evidence, finding it did not qualify as fresh evidence. The Court considered the severity of the attack, the injuries sustained by the victim, and the appellant's criminal history. The Court found the starting point of eight years imprisonment appropriate, and dismissed the appeal against sentence. The sentence of eight years imprisonment was upheld.

Orders