R v Tamihana - [2020] NZHC 1365

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF

WITNESS/VICTIM/CONNECTED PERSON(S) PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2019-012-001212

[2020] NZHC 1365

THE QUEEN

v

BLAIR WIREMU TAMIHANA

Hearing: 15 June 2020

Appearances:

R D Smith for Crown

M A Stevens QC for Defendant

Judgment:

15 June 2020

[REDACTED] SENTENCING REMARKS OF OSBORNE J

This judgment was delivered by me on 15 June 2020

Registrar/Deputy Registrar Date:

R v TAMIHANA [2020] NZHC 1365 [15 June 2020]

Introduction

[1] Mr Tamihana please stand. You have pleaded guilty to a charge of attempted murder.

[2] I am going to invite you to sit again shortly because I need to run through the background to your offending, the facts which you have heard counsel talk about and importantly the reasons for the sentence I will impose on you. That will take some time.

[3]Please be seated.

[4] To consider the sentence I should impose on you, I will deal with a number of topics:

(a)First, I will refer to the facts. They will include my consideration of the victim’s impact statement which she has provided.

(b)I will turn to examine the period of imprisonment which I should impose on you if I sentence you to imprisonment. That requires me to consider, as you have heard counsel do:

(i)first, a starting point, that is a number of years of imprisonment reflecting the seriousness of your crime;

(ii)secondly, to consider personal factors about you which may make your offending worse;

(iii)thirdly, to consider the circumstances personal to you that reduce your level of responsibility for the crime; and

(iv)fourthly, to bring into account your guilty plea.

(c)In covering those matters, I must also consider Mrs Stevens QC’s submission that a sentence of supervision may be appropriate.

[5]But at this point I am going to summarise the facts.

Facts of your crime

[6] You, Mr Tamihana, had been in a relationship with the victim, [redacted], for approximately 11 months. On 5 March 2019, you had appeared in the District Court charged with impeding her breathing. You were granted bail. As a condition of your bail, you were ordered not to contact the victim.

[7] But you had contact which resulted in terrifying consequences for her on 30 May 2019. After your contact with her, she went to the Central Police Station, she endeavoured to withdraw her original complaint that had led to your being charged and remanded on bail.

[8] That evening, you drove the victim back to your address, which was a caravan at a camping ground. During the drive, you began arguing. The argument continued when you arrived at the caravan around 6 pm. You became aggressive and, using both hands, you pushed her hard in the chest, causing her to fall onto the bed. The victim said she wanted to go home. You told her she was not going anywhere and that…

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 Tamihana

Details

AGLC: R v Tamihana [2020] NZHC 1365
Case: [2020] NZHC 1365
Decision Date: 15 June 2020

CaseChat Overview and Summary

In the High Court of New Zealand Dunedin Registry, Blair Wiremu Tamihana was convicted of attempted murder. The defendant pleaded guilty to attempting to murder a woman with whom he had been in a relationship by trying to asphyxiate her in a caravan. The court was required to determine the appropriate sentence for the offence, taking into account various factors including the victim impact statement, the defendant's mental health, and his guilty plea. The court also had to decide whether an imprisonment term should include a minimum period of imprisonment.

The court found that the defendant's actions were premeditated, and the victim was vulnerable, which made the offence more serious. The court considered the defendant's mental health issues and his willingness to participate in restorative justice. However, the court found that a sentence of supervision was not appropriate, and a period of imprisonment was necessary. The starting point for sentencing was set at six years and six months' imprisonment, considering the aggravating factors of the case. The court then applied discounts for the defendant's mental health, cultural background, and guilty plea, which resulted in a final sentence of three years and eight months' imprisonment with a minimum period of imprisonment of one year and ten months. The court also issued a warning under the three strikes law and a protection order in favour of the victim.

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