R v Moengaroa - [2007] NZCA 425

IN THE COURT OF APPEAL OF NEW ZEALAND
CA304/07
[2007] NZCA 425
THE QUEEN
v
JARROD THOMAS HEMI MOENGAROA
Hearing:19 September 2007

Court:Ellen France, John Hansen and Wild JJ
Counsel:D R La Hood and C J Boshier for Crown

J P Temm for Respondent

Judgment:28 September 2007 at 11.30 am

JUDGMENT OF THE COURT

LEAVE TO APPEAL IS GRANTED BUT THE APPEAL AGAINST SENTENCE IS DISMISSED.
REASONS OF THE COURT
(Given by Wild J)
Introduction
[1]       The Solicitor applies for leave to appeal against the sentence of three and a half years imprisonment imposed on Mr Moengaroa by Judge Cooper in the District Court at Rotorua on 7 June.
[2]       Mr Moengaroa had been found guilty by a jury of injuring his former female partner with intent to cause her grievous bodily harm.
[3]       The Solicitor contends that:
·     The Judge’s five year sentencing start point was too low, in that it did not reflect Mr Moengaroa’s overall culpability, and the 33 per cent discount the Judge allowed was too high.
·     The Judge erred in taking provocation into account as a mitigating factor. The Judge could not have been satisfied “that there was serious provocation which was an operative cause of the violence inflicted by [Mr Moengaroa], and which remained an operative cause throughout the commission of the offence”, as required by R v Taueki [2005] 3 NZLR 372 at [32(a)] (CA).

[4]       The result, submits the Solicitor, was a sentence that is manifestly inadequate. The Solicitor contends there are strong policy reasons in the context of domestic violence that require this Court to reject the Judge’s approach.
Background
[5]       This is most accurately taken from Judge Cooper’s sentencing remarks, as he presided over the trial:
[2]       The facts which emerged at your trial were that on the 17^th of December 2005, the complainant, who was your former partner, was at your home. Her daughter and her partner were also present. The evening started off in a convivial way, but a fair amount of alcohol was consumed, particularly by the complainant and her daughter. There was an argument and ultimately you yourself were the subject of some pushing and shoving and kicking from the complainant and her daughter. You had asked them to leave but they didn’t. Ultimately the complainant’s daughter did leave, leaving the complainant and you alone at the house. She was still antagonistic towards you at the time her daughter and her partner left, but after they left, there was then a sustained and violent attack by you on the complainant.
[3]       That attack included you punching her and kicking her in the head. It included kicking her while she was defenceless on the floor. It included assaulting her while she was going in and out of consciousness and kicking her to the head while you were holding her hair. The complainant recalls going in and out of consciousness and at one point you were demanding of her to say that what was happening was…

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 Moengaroa

Details

AGLC: R v Moengaroa [2007] NZCA 425
Case: [2007] NZCA 425
Decision Date: 28 September 2007

CaseChat Overview and Summary

In R v Moengaroa, the Court of Appeal of New Zealand was asked to consider the sentence of three and a half years imprisonment imposed on Mr Moengaroa for injuring his former female partner with intent to cause grievous bodily harm. The Solicitor appealed the sentence on behalf of the Crown, arguing that the five-year sentencing start point was too low and the 33 per cent discount allowed was too high. The Solicitor also argued that the Judge erred in considering provocation as a mitigating factor. The Court was required to determine whether the sentence was manifestly inadequate and whether there were significant sentencing errors that warranted leave to appeal.

The Court examined the facts of the case, including the extreme violence, serious injury, attack to the victim's head, and the complainant being vulnerable when lying defenceless on the floor. The Judge had listed these as aggravating factors and placed the case in band two of the Taueki guidelines, which suggested a sentencing start point in the range of five to eight years imprisonment. The Court also considered the mitigating factors of provocation and substantial family and community support. The Judge had accepted the provocation as a mitigating factor, which the Court found to be an error.

The Court of Appeal found that the Judge's five-year starting point was too low, and the appropriate starting point should have been six years. The Court concluded that the provocation should have reduced the starting point to five years, and the Judge was then entitled to further reduce the sentence to reflect the favourable report and references he had about Mr Moengaroa, and the substantial family and whanau support for him. The appropriate further reduction was six months, at most 12 months, reducing the end sentence to four years imprisonment. The sentence under appeal was three and a half years imprisonment, which the Court found was not manifestly inadequate, as the appropriate minimum was four years imprisonment. Therefore, the Solicitor's application for leave was granted, but the appeal against the sentence was dismissed.

In conclusion, the Court of Appeal granted leave to appeal but dismissed the appeal against the sentence. The Court found that there were significant sentencing errors, but the sentence was not manifestly inadequate. The Court determined that the appropriate sentence should have been four years imprisonment, but the three and a half years imposed was not manifestly inadequate.

Orders