R v Tapine - [2019] NZHC 3134

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-044-001823

[2019] NZHC 3134

THE QUEEN

v

TAMA TAPINE

Hearing: 29 November 2019

Appearances:

D M A Wiseman for Crown

K Hamblin on instructions from A Cresswell for Defendant

Sentenced:

29 November 2019

SENTENCING NOTES OF VENNING J

Solicitors: Meredith Connell, Auckland Counsel: A Cresswell, Auckland
K Hamblin, Auckland

R v TAPINE [2019] NZHC 3134 [29 November 2019]

[1] Tama Tapine, you have pleaded guilty to assault with intent to injure and are for sentence this morning as a result. The maximum penalty for the offence is three years’ imprisonment.

[2] You faced trial in this Court in early October 2019. At the conclusion of the Crown case an application was made on your behalf pursuant to s 147 of the Criminal Procedure Act 2011 to dismiss the charge of wounding with intent to injure that you faced. The Court was minded to grant that application but also granted leave to the Crown to amend the charge. You then pleaded guilty to the amended lesser charge.

[3] You and your co-accused Mr Lisiate and Mr Poulgrain were all serving prisoners. You were in the maximum security unit at Auckland Prison at Paremoremo. Mr Burton, the victim of the assault, was also in that wing.

[4] The evidence at trial disclosed your co-accused Mr Lisiate, Mr Poulgrain and you were interacting together shortly before the attack on Mr Burton. You were in and out of each other’s cells and you were gathering down towards the end of the corridor. Ultimately you placed yourself to one side of the corridor waiting for Mr Burton, clearly waiting for him. Mr Poulgrain positioned himself beside Mr Burton as he was walking down the corridor to ensure Mr Burton would be close to you. Mr Lisiate was behind Mr Burton watching you and Mr Poulgrain.

[5] You initiated the assault on Mr Burton by hitting him. You hit him with what can be described as a roundhouse punch. The blow was a complete surprise to Mr Burton. It was obviously unprovoked. Mr Poulgrain then joined in and both of you hit Mr Burton. You hit him at least twice more. At that point Mr Burton fell to the ground and was attacked by Mr Lisiate who had two shanks and by Mr Poulgrain who also used a shank. You took no further part in the attack after Mr Burton fell to the ground. At that stage you walked away.

[6] However, you were involved in initiating the attack and it was a serious and concerted attack on Mr Burton. As a result of that attack he suffered a number of wounds to his right arm and hand, stab wounds to his left arm and upper left bicep, a large wound to his left-hand side collarbone, a large stab wound to his right eye that

resulted in a ruptured eye globe and a number of other smaller and…

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 Tapine

Details

AGLC: R v Tapine [2019] NZHC 3134
Case: [2019] NZHC 3134
Decision Date: 29 November 2019

CaseChat Overview and Summary

In the High Court of New Zealand at Auckland, the case of The Queen v Tama Tapine was heard and decided on 29 November 2019. Tama Tapine pleaded guilty to assault with intent to injure, with the maximum penalty being three years' imprisonment. The case involved an unprovoked and premeditated attack on another prisoner, Mr Burton, while Tapine and his co-accused were serving sentences at Auckland Prison. The legal issues the court needed to address included the appropriate starting point for the sentence, the applicability of an uplift due to Tapine's previous convictions and the fact that the offence occurred while he was serving a sentence, and the adjustment of the sentence based on Tapine's personal circumstances and mitigating factors.

The court found that the attack was planned and that Tapine played a significant role in initiating it, even though he did not participate in the most severe part of the assault. The court determined that a starting point of two years' imprisonment was appropriate, considering the premeditation and the seriousness of the violence involved. However, the court decided not to uplift the starting point further due to Tapine's previous convictions and the fact that the offence occurred while he was serving a sentence, as these factors were already reflected in the starting point. The court also considered Tapine's personal circumstances, including his disadvantaged background, his limited education, and his association with gangs. Despite these factors, the court found that Tapine's expression of remorse was insufficient and that his risk to others was high.

After considering all the mitigating and aggravating factors, the court sentenced Tapine to imprisonment for one year and three months, which is cumulative on any existing sentence he may be currently serving. The court also noted the need for Tapine to break his connection with gangs and to receive support to turn his life around.

Orders