R v Tamiefuna - [2021] NZHC 2880

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-090-5558

[2021] NZHC 2880

THE QUEEN

v

MAHIA TAMIEFUNA

Hearing: 22 October 2021

Appearances:

D A McGivern for Crown S J Gray for Defendant

Judgment:

22 October 2021

SENTENCE OF PAUL DAVISON J

Solicitors:
Crown Solicitor, Auckland

R v TAMIEFUNA [2021] NZHC 2880 [22 October 2021]

Introduction

[1] Mahia Tamiefuna, on 30 July 2021 at the conclusion of your Judge-alone trial, I found you guilty and convicted you of the aggravated robbery of Mr Jung Rae Lim committed on 2 November 2019. You now appear before the Court this morning to be sentenced for that aggravated robbery.1

[2] At your trial there was no dispute about the events of the robbery and what the two offenders who entered Mr Lim’s house did and what they took away with them. The only issue was whether the Crown could prove that you were one of the two men involved. By my verdict I was satisfied beyond reasonable doubt that you were one of the two men involved in the robbery and I accordingly found you guilty.

Your offending

[3]I shall first address the circumstances of your offending.

[4] Just after 6.00 am on the morning of 2 November 2019 you and your co-offender arrived by car together outside Mr Lim’s residential address in Swanson. You and your co-offender then drove down the driveway to his house at the end of what was a shared driveway. Mr Lim was asleep at the time. You both entered his house through a kitchen window. Once inside, you rummaged through an unoccupied bedroom before entering Mr Lim’s bedroom which woke him up. You demanded that he hand over the keys to his Hyundai car and various other items including cash and a mobile phone. In the course of making these demands, one of you struck Mr Lim on his shoulder with an open hand, to make him hurry up and comply with your demands.

[5] When you were unsuccessful in locating Mr Lim’s wallet you and your co-offender departed, taking his car keys, mobile phone and digital camera. One of you drove away in the vehicle you had arrived in, and the other in Mr Lim’s Hyundai, which is valued at $47,000. Your arrival and departure in the driveway was captured and recorded on a high definition CCTV camera which recorded movement of anyone or any vehicle passing along the driveway.

1 Crimes Act 1961, s 235(b), maximum period of imprisonment: 14 years’.

[6] At one stage during the course of the robbery you left Mr Lim’s house and walked out along the driveway to the roadside and to a second vehicle containing some associates which had also arrived at around the same time as you and your co-offender and which had parked on the roadside near the entrance of the driveway. After apparently communicating with the occupants of that second car you walked back along the driveway…

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 Tamiefuna

Details

AGLC: R v Tamiefuna [2021] NZHC 2880
Case: [2021] NZHC 2880
Decision Date: 22 October 2021

CaseChat Overview and Summary

The case of R v Tamiefuna involved the sentencing of Mahia Tamiefuna for the aggravated robbery of Mr Jung Rae Lim. The incident occurred on 2 November 2019, when Tamiefuna and an accomplice forced entry into Mr Lim's home, stole his car, mobile phone, and digital camera, and caused him physical harm. The court was tasked with determining the appropriate sentence for Tamiefuna's crime, considering both aggravating and mitigating factors.

The court found that Tamiefuna's offending was aggravated by several factors, including the premeditation and planning involved, the forced entry into a private dwelling, the intimidating presence of two offenders, the use of violence, the value of the items stolen, and the significant impact on the victim. The court assessed the gravity of Tamiefuna's offending by comparing it with similar cases, ultimately determining a starting point of six years' imprisonment.

The court also considered mitigating factors, such as Tamiefuna's personal background and circumstances, which included a dysfunctional upbringing, exposure to drugs and alcohol from a young age, disconnection from his cultural heritage, and institutionalisation from a young age. The court granted a discount of 30 per cent to the starting point, resulting in a final sentence of four years and eleven months' imprisonment, to be served without parole due to Tamiefuna's status as a "stage-2" offender under the three-strikes regime.

Orders