R v Tamihana - [2014] NZHC 89

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-044-2640 [2014] NZHC 89

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

SENTENCE INDICATION OF BROWN J

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

R v TAMIHANA [2014] NZHC 89 [7 February 2014]

[1] Mr Tamihana you appear for a sentencing indication today on the charge of accessory after the fact to attempted murder under s 71 of the Crimes Act 1961. The maximum penalty for this offence is five years imprisonment.

[2] For the purposes of this hearing I have received an agreed summary of facts. I have considered that summary in accordance with s 61(3) of the Criminal Procedure Act 2011. I have considered the indictment and the detailed submissions of counsel and their oral submissions this morning. I am satisfied the information available to me is sufficient for the purposes of giving a sentencing indication. As required by the Criminal Procedure Act I have conducted the hearing in open Court and I am giving this sentencing indication orally but I reiterate it is an offence to publish any information about a request for a sentence indication and any indication that is given.

Background facts

[3] You were a resident at Auckland’s Paremoremo prison at the time of the offending. On Tuesday 14 May 2013, your two co-defendants Mr Wereta and Mr Isaaka walked into cell number five where the victims Mr Nikoi and Mr Makimare were sitting down. Mr Wereta was armed with improvised stabbing weapons known as “shanks” and he punched Mr Makimare in the head while the shank was in his hand. Mr Makimare suffered a minor laceration to the left side of his cheek and did not require hospitalisation.

[4] Mr Wereta began to stab Mr Nikoia, inflicting wounds all over his face and body. When Mr Nikoia fled from the cell, Mr Isaaka punched him and he fell back onto the floor. Mr Wereta then continued to stab Mr Nikoia repeatedly with the shanks. He only ceased when he was interrupted by a correctional officer and the victim sustained 18 stab wounds, including a life threatening punctured lung and was hospitalised.

[5] Once Mr Wereta was placed on “lock down” you threw an object attached with string into cell six and Mr Wereta pulled the string into his cell. He then tied the shirt he was wearing and the material he had wrapped his hands in during the attack onto the string. You then used the string to pull those items back into your

own cell. You tried to dispose of the shanks and the shirt by flushing them down your toilet. You hid the material that was used to wrap Mr Wereta’s hands in the rubbish bin in your cell and these objects were discovered over the course of the next two days after a scene examination and cell inspection.

Personal circumstances

[6]…

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 [2014] NZHC 89
Case: [2014] NZHC 89
Decision Date: 7 February 2014

CaseChat Overview and Summary

In the case of R v Tamihana, the defendant, Ihaka Tamihana, was being sentenced for his role as an accessory after the fact to an attempted murder. The crime occurred while Tamihana was incarcerated at Paremoremo prison in Auckland. The key legal issues were determining the appropriate starting point for the sentence given the nature of the offence and mitigating factors, such as the defendant's prior criminal history and the discount for a guilty plea. The court considered the premeditation and use of violence involved, and the impact on the victim, as well as the lack of any relevant tariff cases for accessory after the fact.

The court's reasoning involved a thorough examination of the circumstances of the offence, drawing on comparable cases to establish a starting point of 15 months imprisonment. The court acknowledged the defendant's lack of prior convictions since 2008, awarding a one-month reduction, and applied a 20% discount for a guilty plea, resulting in a final sentence of 11 months imprisonment. Both the Crown and the defence agreed that home detention was not an appropriate alternative to imprisonment in this case.

The final orders of the court were that Ihaka Tamihana should serve an 11-month imprisonment sentence for his role as an accessory after the fact to the attempted murder. This sentence reflects the court's consideration of the seriousness of the offence, the mitigating factors, and the discount for a guilty plea.

Orders