Legal Research
Cases
R v Sweeney

R v Sweeney

Case [2023] NZHC 1095 9 May 2023

Aggravated & Exemplary Damages

No judgment structure available for this case.

Type to search within this case.

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

KIRIKIRIROA ROHE

CRI-2021-019-004725

[2023] NZHC 1095

THE KING

v

PENE AMENE TE AO KAPUA HURIWAKA SWEENEY (AKA BENJAMIN SWEENEY) &

FRANK PESSY DAVID SWEENEY

Hearing: 9 May 2023

Counsel:

RL Mann for Crown

NP Chisnall KC and LA Elborough for Benjamin Sweeney DA Kemp and WJS Mohammed for Frank Sweeney

Judgment:

9 May 2023

SENTENCING REMARKS OF DOWNS J

Solicitors/Counsel:
Crown Solicitor, Hamilton. NP Chisnall KC, Auckland. LA Elborough, Auckland. DA Kemp, Auckland.
WJS Mohammed, Auckland.

R v SWEENEY [2023] NZHC 1095 [9 May 2023]

Introduction

[1] I begin by acknowledging the presence of whānau: those here on behalf of the Sweeneys, and those here on behalf of the victims. I record the obvious: no sentence can recognise the loss of Anthony Bell’s life, or the harm caused by his death.

[2] Benjamin Sweeney, you appear for sentence on two charges: assault with intent to injure; and assault with a weapon. Frank Sweeney, you appear on one charge: manslaughter. You and Benjamin are cousins.

Facts

[3] On 2 October 2021, you, Benjamin Sweeney, you, Frank Sweeney, and a third man, stopped your car on the main road in Ōtorohanga outside the service station. It was about 6.15 in the evening. It was still light.

[4] Almost immediately, Anthony Bell and his two brothers, Ethan Tumai and Victor Tumai, pulled up behind your car. Anthony Bell and Ethan Tumai had been drinking.

[5] Both of you and the third man rushed the victims’ car as they were getting out. Benjamin Sweeney, you were initially holding a beer bottle.

[6]Sadly, everyone wanted to fight. I return to why shortly.

[7] Anthony Bell was initially holding a hammer. He dropped it and bent over. As he did so, you, Benjamin Sweeney, punched him to the head twice. Your blows were hard. They knocked Mr Bell to the ground. While he was on the ground, you punched him to the head, kicked him to the head, and as he was getting up, stomped his head. You also punched his body. This violence reflects the first charge of assault with intent to injure, which carries a maximum penalty of three years’ imprisonment.1

[8] Victor Tumai was fighting the third man from your car. Benjamin Sweeney, you picked up the hammer from the ground, ran to Victor Tumai and struck him, using

1 Crimes Act 1961, s 193.

the hammer, to the back. You then ran back to Mr Bell; then back again to Mr Tumai. You again hit him in the back with the hammer. This violence is captured by the assault with a weapon charge, which carries a maximum penalty of five years’ imprisonment.2 Victor Tumai sustained swelling, bruises and grazes to various parts of his body.

[9] Frank Sweeney, you squared off with Ethan Tumai. He was holding a small screwdriver or small knife. He ran away from you. You chased him across the road. You then ran…

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 Sweeney

Details

AGLC: R v Sweeney [2023] NZHC 1095
Case: [2023] NZHC 1095
Decision Date: 9 May 2023

CaseChat Overview and Summary

The High Court of New Zealand delivered sentencing remarks in the case of R v Sweeney. The defendants, cousins Benjamin Sweeney and Frank Sweeney, were convicted of various charges related to an incident that occurred on 2 October 2021 in Ōtorohanga. Benjamin Sweeney faced charges of assault with intent to injure and assault with a weapon, while Frank Sweeney was charged with manslaughter. The court found that both defendants were initial aggressors in the altercation with the victims, Anthony Bell and his brothers, Ethan and Victor Tumai. The defendants claimed self-defence, but the court found their testimonies to be exaggerated or fabricated.

The court identified several aggravating factors for Benjamin Sweeney, including the significant force used against Mr Bell and the use of a weapon against Victor Tumai. The court rejected the Crown's contention that the offending was extremely violent but found it to be serious. The court adopted a global starting point of two years and nine months' imprisonment, adjusted to three years' imprisonment to account for Benjamin Sweeney's history of recent violence. After considering mitigating factors, including the defendants' background and the impact on their children, the court sentenced Benjamin Sweeney to two years and two months' imprisonment for both charges.

Regarding Frank Sweeney, the court found four aggravating factors, including the strength of the blow that killed Mr Bell, the gratuitous nature of the violence, the intent to cause actual bodily harm, and the profound victim impact. The court rejected Frank Sweeney's claim that the offending constituted excessive self-defence and adopted a starting point of four years and ten months' imprisonment. After considering mitigating factors, the court sentenced Frank Sweeney to four years' imprisonment for the manslaughter of Anthony Bell.

Orders