R v Heremaia - [2012] NZHC 3361

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2011-092-016071 [2012] NZHC 3361

THE QUEEN

v

TUWHARE HEREMAIA

Appearances: K A Lummis for the Crown
M J-M Porner for Mr Heremaia

Judgment: 12 December 2012

SENTENCING NOTES OF GILBERT J

Solicitors: K A Lummis, Auckland: kirsten.lummis@meredithconnell.co.nz
M J-M Porner, Auckland: mj_porner@yahoo.de

R V HEREMAIA HC AK CRI 2011-092-016071 [12 December 2012]

Introduction

[1] Mr Heremaia, you have pleaded guilty to one count of causing grievous bodily harm with intent to cause grievous bodily harm and one of injuring with reckless disregard for the safety of others. The maximum penalty for the grievous bodily harm charge is 14 years’ imprisonment. The maximum penalty for the other charge is five years’ imprisonment.

[2] Following a request for a sentencing indication under the Criminal Procedure

Act 2011, I indicated that these charges would attract a sentence of four years and

10 months’ imprisonment. This indication took no account of your restorative justice initiatives because these had not progressed at that stage. However, a restorative justice conference has now taken place and I am satisfied on the basis of the report that has been provided that you are truly remorseful for your offending. This is to your credit and should be taken into account in sentencing you today. Your victims do not wish you to go to prison. However, the gravity of your offending is such that imprisonment is the only appropriate response.

Facts

[3] The offending occurred in the early hours of the morning of

10 September 2011 at a Manurewa property where a party was taking place. You and your partner arrived at the party at about 4.30 am. Not long after you arrived, you and one of the complainants, Mr Nepe, became involved in a verbal altercation. Mr Nepe punched you in the face and you then ran off.

[4] Your partner drove off after you. Mr Nepe smashed the passenger window of the car as it went past. After your partner caught up with you, you got into the driver’s seat and drove back towards the party. You stopped and spoke to someone who was standing nearby and said “I am going to run them over, what do you think?” You drove the car over the kerb and onto the footpath directly towards Mr Chapman and others who were standing on the footpath. You then reversed back onto the road before accelerating forward and knocking Mr Chapman to the ground. You reversed and drove forward again, this time over the top of Mr Chapman who

was still lying on the ground. You then reversed over Mr Chapman back onto the roadway. You drove forward again over the top of Mr Chapman who was still lying prone on the footpath.

[5] Mr Chapman was trapped under the car with his head and neck very close to the rear wheels of the car. At this point, Mr Nepe reached inside the passenger window and tried to remove the keys from 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 Heremaia

Details

AGLC: R v Heremaia [2012] NZHC 3361
Case: [2012] NZHC 3361
Decision Date: 12 December 2012

CaseChat Overview and Summary

The case of R v Heremaia was heard by Justice M A Gilbert in the High Court of New Zealand Auckland Registry. The defendant, Tuwhare Heremaia, pleaded guilty to charges of causing grievous bodily harm with intent to cause grievous bodily harm and injuring with reckless disregard for the safety of others. The court had to determine the appropriate sentence for the defendant, taking into account various mitigating and aggravating factors.

The primary legal issue was to determine the appropriate sentence for the defendant, considering the severity of the crimes committed, the defendant's personal circumstances, and the views of the victims. The court had to establish a starting point for the sentence based on the gravity of the offence, and then adjust the sentence to account for personal factors and the defendant's guilty plea. The court also had to consider the purposes and principles of sentencing as outlined in the Sentencing Act 2002.

Justice M A Gilbert began by setting a starting point of six years and six months' imprisonment, considering the extremity of the violence, serious injuries caused, and the use of a car as a weapon. The court also acknowledged some premeditation and provocation in the offence. After considering personal factors such as the defendant's lack of previous convictions, genuine remorse, and a reparation offer, the court applied a discount of 12 months to the starting point. The court also applied a 20% discount for the defendant's guilty plea. Consequently, the defendant was sentenced to four years and five months' imprisonment for the lead offence and 12 months' imprisonment for the lesser charge, to be served concurrently.

The court's final orders were that the defendant, Tuwhare Heremaia, be sentenced to four years and five months' imprisonment for causing grievous bodily harm with intent to cause grievous bodily harm, and 12 months' imprisonment for injuring with reckless disregard for the safety of others, to be served concurrently. The court did not impose a minimum term of imprisonment.

Orders