R v Moa - [2013] NZHC 3041

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-004-15479 [2013] NZHC 3041

THE QUEEN

v

SIOELI TUPOU MOA TELEFONI POLUTELU MOA

Hearing: 15 November 2013

Appearances: S L McColgan for Crown
D S Niven for Defendant S Moa
V L Pomeroy for Defendant T Moa

Judgment: 15 November 2013

SENTENCING REMARKS OF PETERS J

Solicitors: Meredith Connell, Auckland
V L Pomeroy, Auckland

Counsel: D S Niven, Auckland

R v MOA [2013] NZHC 3041 [15 November 2013]

Introduction

[1] Mr Telefoni Moa and Mr Sioeli Moa, you appear for sentence today having pleaded guilty to one charge of injuring Taua Limu with intent to injure him.1 The maximum sentence for the offence is 5 years’ imprisonment.

[2] I presided over the trial, or at least as far as that trial proceeded, commencing on 30 September 2013 in which each of you faced 5 charges – one of assault, one of causing grievous bodily harm with intent to do so, and three of injuring with intent to cause grievous bodily harm.

[3] Midway through the trial the Crown asked me to discharge you on counts 1,

2, 4 and 5 in the indictment and to amend count 3. I discharged you accordingly, the indictment was amended and you each pleaded guilty to the amended count. I granted you bail pending sentence, there being no opposition to me doing so.

Facts

[4] The offending for which I am to sentence you occurred in the early hours of

12 August 2012.

[5] You and your friends were in a car that was parked in an alleyway running off Edinburgh Street, which itself is off Karangahape Road. Another group, including Mr Limu, were in a carpark on the corner of Gundry Street and Karangahape Road.

[6] The car in which you were parked was facing into the Gundry Street carpark. The two areas are separated by a mesh fence.

[7] Someone in your group said something to a woman in the other group. She and a friend, Alex Tone, walked along Karangahape Road to where you were parked. That led to an argument and then to a fight. Taua Limu was one of those who joined
the fray.

1 Crimes Act 1961, s 189(2).

[8] In the course of the fight Mr Limu was knocked unconscious. You each acknowledge kicking him whilst he was unconscious. Mr Limu’s skull was fractured, although it is not clear whether that occurred as he was knocked to the ground or whilst he was being kicked, so I propose to put that to one side. His face was bruised and swollen and he required specialist medical assessment.

[9] The Police were called, your group drove off and that left the Police, emergency services and later hospital staff to attend to the aftermath.

[10] I intend to sentence you on the basis that you did not initiate the fight and that for a period you were acting in self defence. But I also take into account that each of you…

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 Moa

Details

AGLC: R v Moa [2013] NZHC 3041
Case: [2013] NZHC 3041
Decision Date: 15 November 2013

CaseChat Overview and Summary

The defendants, Mr. Sioeli Moa and Mr. Telefoni Moa, were convicted of injuring Taua Limu with intent to injure him and appeared before the Court for sentencing. The maximum penalty for the offence was 5 years’ imprisonment. Each defendant faced 5 charges at the commencement of the trial, but midway through the trial, the Crown discharged four of the charges and amended the fifth charge. The defendants subsequently pleaded guilty to the amended charge. The incident occurred in the early hours of 12 August 2012. The defendants were in a car parked in an alleyway with their friends. Another group, including Mr Limu, were in a carpark on the corner of Gundry Street and Karangahape Road. The car in which the defendants were parked was facing into the Gundry Street carpark. The two areas were separated by a mesh fence. An argument broke out between the two groups, leading to a fight. Mr Limu was knocked unconscious during the fight and the defendants kicked him whilst he was unconscious. The defendants argued that they were acting in self-defence but the Court found that they kicked Mr Limu when the need for any self-defence had passed. The Court determined that the defendants were not in the most serious band of culpability and that a starting point of 2 years’ imprisonment was appropriate. The Court then considered whether there were any matters personal to the defendants that would increase or reduce the sentence from the starting point. The Court found that there were no aggravating factors but that there were mitigating factors which warranted a reduction in the starting point. The Court sentenced each defendant to 16 months’ imprisonment.

Orders