R v Tanirau - [2008] NZCA 9

IN THE COURT OF APPEAL OF NEW ZEALAND
CA517/07
[2008] NZCA 9
THE QUEEN
v
HENARE MIHAKA HOHEPA TANIRAU
Hearing:13 February 2008

Court:Ellen France, Williams and Heath JJ
Counsel:H S Edward and O J Brittain for Appellant

H D M Lawry for Crown

Judgment:20 February 2008 at 10.30 am

JUDGMENT OF THE COURT

A        The time to bring the appeal is extended.
B        The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Heath J)
Introduction
[1]       Mr Tanirau seeks to appeal out of time against a sentence of three years imprisonment, $2000 reparation and disqualification from holding or obtaining a driver licence for a period of four years. The sentence was imposed by Judge McGuire in the District Court at Rotorua on 20 July 2007, after Mr Tanirau had pleaded guilty to two charges, one each of dangerous driving causing death and dangerous driving causing injury: DC ROT CRI 2006-063-4141. Mr Edward, for Mr Tanirau, challenged both the length of the term of imprisonment and the disqualification.
[2]       The charges arose out of a single incident which occurred on 29 April 2006 at Murupara. Mr Tanirau was 23 years old at the time of the accident, but had turned 24 by the time he was sentenced. He had not previously appeared before the Court.
[3]       Mr Tanirau applies to extend the time to appeal. The delay was caused by an appeal being filed in the wrong Court. The delay has been explained adequately. The Crown does not oppose an extension of time. The time to appeal is extended.
The facts
[4]       On Saturday 29 April 2006, Mr Tanirau had been socialising with friends in the Murupara area. From mid afternoon to late evening, he had consumed a considerable quantity of alcohol.
[5]       At about 10.45pm, notwithstanding the alcohol consumed, Mr Tanirau decided to drive his car. He drove with three passengers. Mr Grootjans was in the front passenger seat. Mr Waru was in the left rear seat of the vehicle. A third person was sitting in the right rear seat. They drove from Rata Place towards Pine Drive.
[6]       While on Pine Drive, Mr Tanirau drove over two “speed humps” near the local shopping centre. These were in a 50 km/h zone. He accelerated along the road and started to negotiate a moderate right hand corner, situated 450 metres north of the second “speed hump”. The vehicle was travelling too fast to negotiate the corner safely. It went off the left hand side of the road, some 90 metres into the corner.
[7]       The front corner of the vehicle hit a tree on the grass verge. Damage was caused to the front passenger side of the vehicle. The vehicle rotated to the right, travelling some 17 metres in the air, and landed on the upper portion of the driver’s side of the vehicle. The roof folded in.
[8]       The vehicle continued to roll and struck a low level post and rail wooden fence. It came to…

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 Tanirau

Details

AGLC: R v Tanirau [2008] NZCA 9
Case: [2008] NZCA 9
Decision Date: 20 February 2008

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appeal of Henare Mihaka Hohepa Tanirau against his sentence was heard. Tanirau had pleaded guilty to dangerous driving causing death and dangerous driving causing injury. The case originated from a single incident in Murupara on April 29, 2006, where Tanirau, heavily intoxicated, lost control of his vehicle while driving at excessive speed, resulting in the death of one passenger and serious injury to another. The District Court sentenced Tanirau to three years imprisonment, $2000 reparation, and a four-year disqualification from holding or obtaining a driver's license. Tanirau's appeal against the sentence focused on the length of the imprisonment term and the driving disqualification. The appeal against the sentence was dismissed, and the time to appeal was extended. The Court found that the starting point for the sentence was within the acceptable range, considering the gravity of the offense, and that the credit given for mitigating factors, including the late guilty pleas, was appropriate. The disqualification period was deemed necessary given the nature and consequences of the offense.

The Court of Appeal examined the appropriateness of the starting point for the sentence, considering the dangerous driving, the excessive speed, and the consumption of alcohol. It was noted that the death and serious injury were not unexpected consequences of Tanirau's actions. The Court found that the starting point of 80% of the maximum penalty was within the acceptable range. Regarding the mitigation, the Court considered the credit given for the guilty pleas and remorse to be appropriate, despite their late entry. The driving disqualification period was also upheld, as it was deemed necessary given the aggravating factors of the offense. The reparation order was not specifically challenged, and the Court did not interfere with the sentencing Judge's decision not to seek a reparation report.

Orders