R v Tamihana

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-044-2640 [2014] NZHC 90

THE QUEEN

v

IHAKA TAMIHANA

Hearing: 7 February 2014

Counsel: D J Dufty for the Crown
G N E Bradford for the Prisoner

Judgment: 7 February 2014

SENTENCING NOTES OF BROWN J

Solicitors: Crown Solicitors, Auckland
Counsel: GNE Bradford, Auckland

R v TAMIHANA [2014] NZHC 90 [7 February 2014]

[1] Mr Tamihana this morning I have given you a sentencing indication of

11 months for the charge against you as accessory after the fact to attempted murder under s 71 of the Crimes Act the maximum penalty for which is five years imprisonment.

[2] Upon my having given you that sentencing indication you have given instructions to your counsel that you would plead guilty to the charge. The charge having been read to you, you have pleaded guilty. I formally enter the conviction on the count of accessory after the fact to attempted murder. Mr Bradford has indicated that you waive the obtaining of a pre-sentence report.

[3] For the reasons you have heard me explain in the sentencing indication the sentence which I will impose on you today is calculated by reference to the established sentencing regime in R v Taueki1 whereby one first identifies a starting point, one then assesses whether there are any mitigating or aggravating features relating to the offending, one then considers your own personal circumstances and whether there are any aggravating or mitigating circumstances, and finally takes into
account any discount for early guilty plea.

[4] As I have already indicated to you in the sentencing indication the starting point that I assess on the basis of the cases that have been referred to in your counsel’s submissions on the sentencing indication lead me to a starting point of
15 months imprisonment. I do not consider that there are any mitigating or aggravating features associated with the offending itself. In terms of your own personal circumstances none of your previous convictions are sufficiently relevant to the charge today that would warrant any uplift to the starting point and in terms of mitigating features I have been influenced by Mr Bradford’s submission to me that you have not offended since 2008 albeit you have been in prison in that period.

[5] Counsel are agreed in this instance that a discount of 20 percent is appropriate for your guilty plea and in those circumstances I will be imposing a
sentence of 11 months imprisonment.

1 R v Taueki [2005] 3 NZLR 372 (CA).

[6] So would you please stand Mr Tamihana. On the charge of being an accessory after the fact to attempted murder under s 71 of the Crimes Act you are sentenced to 11 months imprisonment.

[7] You may stand down.

Brown J

CaseChat Overview and Summary

The case of R v Tamihana was heard by Brown J in the High Court of New Zealand. The defendant, Ihaka Tamihana, was charged with being an accessory after the fact to attempted murder under section 71 of the Crimes Act. Following a sentencing indication provided by the judge, Tamihana elected to plead guilty to the charge. The legal issues the court was required to address included determining the appropriate starting point for sentencing, assessing any mitigating or aggravating factors associated with the offence and the defendant's personal circumstances, and applying a discount for the defendant's early guilty plea.

In delivering the judgment, the court began by establishing a starting point for sentencing based on relevant case law and submissions from counsel. The court assessed that a starting point of 15 months imprisonment was appropriate. The court found no mitigating or aggravating factors associated with the offending itself and determined that none of the defendant's previous convictions warranted an adjustment to the starting point. The court did, however, consider the defendant's clean record since 2008, which was noted as a mitigating factor. Both counsel agreed that a 20% discount for the defendant's guilty plea was appropriate. As a result, the court imposed a sentence of 11 months imprisonment.

The court formally sentenced Tamihana to 11 months imprisonment for being an accessory after the fact to attempted murder. This sentence reflects the established sentencing regime, taking into account the starting point, any mitigating or aggravating factors, and the defendant's personal circumstances, as well as the discount for the early guilty plea.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established