R v Tai

Case [2021] NZHC 2769 15 October 2021

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2020-035-1103

[2021] NZHC 2769

THE QUEEN

v

SHANE TAI

Hearing: 15 October 2021

Appearances:

S A H Bishop for the Crown I R Hard for the Defendant

Judgment:

15 October 2021

SENTENCING OF COOKE J

[1] Shane Tai you are here today to be sentenced on two charges of attempted grievous bodily harm with intent to cause that harm,1 two charges of wilful damage,2 one charge of dangerous driving,3 and one charge of driving with excess breath alcohol4 following your entry guilty pleas to those charges. I formally enter convictions on the wilful damage, dangerous driving, and excess breath alcohol charges.

[2] In explaining the sentence that I intend to impose I will begin by outlining the facts of your offending. I will then assess the period of imprisonment that would be

1      Crimes Act 1961, ss 72 and 188(1) – maximum seven years’ imprisonment.
2      Summary Offences Act 1981, s 11(1)(a) – maximum three months’ imprisonment or $2,000 fine.
3      Land Transport Act 1988, s 35(1)(a) – maximum three months’ imprisonment, $4,500 fine, six months’ disqualification.
4      Section 56(1) – maximum three months’ imprisonment, $4,500 fine.

R v TAI [2021] NZHC 2769 [15 October 2021]

the starting point for offending of that kind. I will then consider whether there are factors personal to you that would result in an uplift from that starting point, and whether there are factors personal to you that should lead to a discount, including the discount for your guilty pleas. I will then address whether you should be sentenced to home or community detention if the period of imprisonment I reach is two years or less.

The facts

[3] I begin by outlining the facts of your offending which come from the summary of facts to which your guilty pleas relate.

[4] On Saturday 10 October 2020 you were at an address in Masterton attending a birthday party for Mr Alan Gannaway. You were a friend of the family. Due to the level of your intoxication you were asked to leave the party, however. You and your partner then moved outside the address and had an argument. On hearing the argument Mr Gannaway’s adult children, Harley-Rae and Justine Gannaway came out to speak to you. A fight broke out between you but they were able to overpower you and you then left.

[5] You then returned a short time later holding a fence paling which you had ripped from a nearby fence. You then used the fence paling to smash the windscreens of two vehicles belonging to Mr Gannaway and Harley-Rae. These actions give rise to the two wilful damage charges.

[6] Police were then called. You had run off to your mother’s address down the road and got into your Nissan Pulsar motor vehicle. You then returned to the address in your vehicle. By that time police had arrived and two officers were standing on…

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 Tai

Details

AGLC: R v Tai [2021] NZHC 2769
Case: [2021] NZHC 2769
Decision Date: 15 October 2021

CaseChat Overview and Summary

The case of R v Tai involved sentencing for multiple charges, including attempted grievous bodily harm with intent to cause harm, wilful damage, dangerous driving, and driving with excess breath alcohol. The defendant, Shane Tai, had entered guilty pleas to these charges. The court began by establishing the starting point for sentencing by considering the nature of the offending, treating the attempted grievous bodily harm charges as the most serious. The court assessed this starting point to be five years' imprisonment, discounting it by one-third for the attempted nature of the offence, resulting in a starting point of three years and four months’ imprisonment. Uplifts were added for the other charges, bringing the total starting point to three years and six months' imprisonment. The court then considered personal factors that might lead to uplifts or discounts from the starting point. Despite Tai's criminal history and lack of prior good character, the court found mitigating factors, including Tai's admission of guilt, remorse, and rehabilitation potential, leading to a total discount of 45%. This reduced the sentence to one year, eleven months' imprisonment, or 23 months. Given the reduced sentence length, the court considered home detention as an appropriate alternative, taking into account time already spent on remand and electronically monitored bail. The court determined a three-month home detention sentence, with conditions mirroring his current electronically monitored bail, including electronic monitoring, restricted movement, and participation in alcohol and drug programmes.

The final orders of the court were that Tai be sentenced to three months' home detention for the attempted grievous bodily harm charges, with specific conditions for the home detention period. For the other charges of wilful damage, dangerous driving, and driving with excess breath alcohol, Tai was convicted and discharged but subject to a six-month disqualification.

Orders