R v Tamatea - [2012] NZCA 443

IN THE COURT OF APPEAL OF NEW ZEALAND

CA425/2012
[2012] NZCA 443

BETWEEN THE QUEEN
Appellant

AND SHARLENA TAMATEA
Respondent

Hearing: 19 September 2012

Court: White, Ronald Young and Simon France JJ

Counsel: D J Boldt and F E Cleary for Appellant
S L Baigent and L C Brown for Respondent

Judgment: 27 September 2012 at 3.30 pm

JUDGMENT OF THE COURT

A Leave to appeal is granted.

B The appeal is allowed.

CThe sentence of nine months’ home detention and 180 hours’ community work is vacated. The order of $500 reparation is set aside.
DA sentence of two years eight months’ imprisonment is substituted.
EMs Tamatea is directed to surrender herself to the Registrar of the District Court at Wellington on or before 10 am on Monday, 1 October 2012.
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REASONS OF THE COURT

(Given by White J)

Introduction

Following pleas of guilty by the respondent, Ms Tamatea, to one count of burglary and one count of injuring with intent to injure, she was sentenced by Judge Davidson to nine months’ home detention and 180 hours’ community work, and ordered to pay reparation of $500.[1]
[1] R v Tamatea DC Wellington CRI-2011-032-3830, 19 June 2012.
The Solicitor-General appeals against the sentence on the ground that it was manifestly inadequate[2] in that:
(a)the Judge’s starting point of three and a half years’ imprisonment was too low;
(b)discounts totalling 18 months were excessive; and
(c)the Judge erred in electing to commute the sentence to home detention.

Factual background

[2]R v Wihapi [1976] 1 NZLR 422 (CA) at 424; and R v Donaldson (1997) 14 CRNZ 537 (CA) at 549.

At around midnight on 28 July 2011 Ms Tamatea, together with her sister, Sansan Turi, and two unknown male associates went to the home of Ms Tamatea’s former partner. He and his new partner (the victim) were asleep in a bedroom in the home at the time.
Ms Tamatea and her associates kicked in the front door of the house and then forced the bedroom door off its hinges. Ms Tamatea and Ms Turi verbally abused the victim and punched and kicked her repeatedly about the head and upper body as she lay naked on the bed. Ms Turi took a beer bottle from the kitchen and continued the attack on the victim’s head and upper body.
During the attack Ms Tamatea’s former partner managed to leave the address and to go to a neighbour’s house to call the police. After assaulting the victim Ms Tamatea and her sister left the address. The two male associates were not directly involved in any of the violence, although their presence would have been intimidating.
The victim received a cut to her forehead requiring stitches, bruising to her head, and bruising and swelling to her right hand, forearm, upper arms and legs.
When interviewed by the police, Ms Tamatea denied any involvement in the offending. She even denied knowing her former partner.
Ms Tamatea and her sister were initially charged with aggravated burglary…

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 Tamatea

Details

AGLC: R v Tamatea [2012] NZCA 443
Case: [2012] NZCA 443
Decision Date: 27 September 2012

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appeal against the sentence of Sharlena Tamatea was heard. The appeal was brought by the Solicitor-General on the grounds that the original sentence of nine months’ home detention, 180 hours’ community work, and a reparation order of $500 was manifestly inadequate. The Crown argued that the starting point of three and a half years' imprisonment was too low, the discounts totalling 18 months were excessive, and the decision to commute the sentence to home detention was erroneous.

The court agreed with the Crown's submissions. The starting point of three and a half years was deemed too low, considering the totality of the offending, which included premeditation, unlawful group entry, and significant violence resulting in moderate injuries to the victim. The court determined a starting point of four years was appropriate. The discounts were considered excessive, particularly the credit for compliance with a curfew and for family support and childcare commitments, which did not warrant such significant reductions. The court substituted a sentence of two years and eight months’ imprisonment.

The court vacated the original sentence and ordered Tamatea to surrender herself to the District Court for re-sentencing. The Court of Appeal held that the original sentence was manifestly inadequate and failed to adequately reflect the seriousness of the offences and the need for specific and general deterrence.

Orders