IN THE COURT OF APPEAL OF NEW ZEALAND
CA10/2009
[2009] NZCA 398
THE QUEEN
v
NELSON HEITIA
Hearing:31 August 2009
Court:Glazebrook, Gendall and Asher JJ
Counsel:Appellant in person
K J Beaton for CrownJudgment:10 September 2009 at 3.00 pm
| JUDGMENT OF THE COURT |
A APPLICATION TO ADDUCE EVIDENCE DECLINED.
B APPEAL AGAINST SENTENCE DISMISSED.
____________________________________________________________________
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…
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- R v Heitia [2009] NZCA 398
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- [2009] NZCA 398
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