R v Maikuku - [2008] NZCA 552

IN THE COURT OF APPEAL OF NEW ZEALAND
CA473/2008
[2008] NZCA 552
THE QUEEN
v
JASON TEMUMURE MAIKUKU
Hearing:27 November 2008

Court:Ellen France, Potter and MacKenzie JJ
Counsel:M D Downs for Crown

T Sutcliffe for Respondent

Judgment:11 December 2008 at 11.15 am

JUDGMENT OF THE COURT

A        Leave to appeal is granted.

B        The appeal is allowed.

C        The sentence of home detention is quashed and a sentence of three and a half years imprisonment is substituted.

REASONS OF THE COURT
(Given by MacKenzie J)
Introduction
[1]       This is an application for leave to appeal by the Solicitor-General against a sentence of one year’s home detention on a charge of wounding with intent to cause grievous bodily harm, imposed in the District Court by Judge Lee: DC HAM CRI 2006‑070‑005755 14 July 2008.
Background
[2]       On 5 September 2006 the respondent was staying at the Bay View Holiday Park at Maketu. Having finished work he was drinking with three associates with whom he shared a cabin. When the beer ran out he borrowed a car and drove to get some more. On his return he accidentally backed the car into a neighbouring cabin. The complainant and two associates lived in that cabin and were in bed. The complainant came out of the cabin holding a knife. One of the complainant’s associates also came out armed with a fork. The respondent says he apologised. A confrontation ensued, during which the complainant took a swing at the respondent and then showed him the knife. The respondent fled back to his cabin.
[3]       The respondent and his associates then went back to the complainant’s cabin, and although the respondent was apparently unarmed, his associates were armed with implements, including a shovel. The respondent says that they did not go together and that two of his associates arrived independently at the scene having been at the toilet. The complainant and his associates came out and the complainant was armed with a broom handle. A verbal confrontation ensued which developed into violence. The complainant struck the respondent with the broom handle, possibly in the face. It is unclear how, but the respondent wound up with the shovel. The complainant struck again, and the respondent warded off the blow with the shovel. Both the broom handle and the shovel were broken. The respondent feared further blows and struck the complainant twice with the shovel pan. The complainant straightened up after the first blow but collapsed suddenly after the second blow.
[4]       There was a conflict of evidence over whether there were more blows. The respondent says that he hit the complainant only twice and swung a third time but did not know whether he connected. Mr Hunia (an associate of the complainant) says that the respondent only hit the complainant twice and everything stopped when he fell. Mr Tipene (an associate of the complainant) says that he only saw the two blows and could not tell whether there were more after the complainant hit the ground.…

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 Maikuku

Details

AGLC: R v Maikuku [2008] NZCA 552
Case: [2008] NZCA 552
Decision Date: 11 December 2008

CaseChat Overview and Summary

This case involved an appeal by the Solicitor-General against a sentence of one year's home detention imposed on the respondent, Jason Temumure Maikuku, for wounding with intent to cause grievous bodily harm. The appeal was heard in the Court of Appeal of New Zealand. The key legal issues the court had to decide were whether the reduction of three years from the starting point for the provocation and self-defense aspects was excessive, and whether the sentence of home detention was appropriate given the seriousness of the offending.

The court found that the starting point of three and a half years was manifestly inadequate and that a starting point in the region of five years should have been adopted. The court also concluded that the sentence of home detention was not an available option, on the proper application of sentencing principles. The seriousness of the offending and the length of the sentence applicable to it was such that a sentence of home detention was not within the available sentencing range.

The court quashed the sentence of home detention and substituted a sentence of three and a half years imprisonment, fixed at the lowest point in the available range. The court increased the deduction for personal circumstances to 18 months to maintain the relativity of the discount for personal circumstances given the higher starting point. The appeal was allowed, and the sentence of home detention was quashed and a sentence of three and a half years imprisonment was substituted.

Orders