R v Tawhai - [2023] NZHC 311

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2022-096-856

[2023] NZHC 311

THE KING

v

TEIMANA TAWHAI

Hearing: 27 February 2023

Appearances:

M E Page for the Crown

C L Parkin for the defendant

Judgment:

27 February 2023

SENTENCING OF COOKE J

[1] Teimana Tawhai you are now to be sentenced as a result of your guilty pleas to one charge of aggravated burglary;1 and one charge of aggravated wounding.2

[2] Your guilty pleas follow an earlier sentencing indication. In order to determine your sentence I will address three matters:

(a)First I will describe the facts of the offending.

(b)Secondly I will outline the approach that is taken in assessing a starting point for offending of this kind. That is an assessment I have already undertaken in the sentencing indication.

1 Crimes Act 1961, s 232(1) and 66; maximum penalty of 14 years’ imprisonment.
2 Section 191(1)(a) and 66; maximum penalty of 14 years’ imprisonment.

R v TAWHAI [2023] NZHC 311 [27 February 2023]

(c)Finally I will address discounts from that starting point arising from your guilty plea and other matters personal to you given further information now available.

The offending

[3]I start by describing the offending.

[4] In accordance with the summary of facts the alleged offending took place on 10 January 2022. You and three co-offenders drove a Toyota motor vehicle to an address on Norana Road in Upper Hutt. You and two others armed yourselves with a 12-gauge shotgun and approached the address so armed, intending to settle a dispute with one of the occupants of the address.

[5] There was a party happening at the address with a number of people present. Your group approached the door. An altercation took place at the door and the victim fled down a short hallway. As he fled the shotgun was fired three times down the hallway by one of your associates. The victim was struck by a number of pellets on the left side of his abdomen, resulting in numerous wounds although it is not said that they were serious wounds. You and your co-defendants then ran back to the vehicle, which fled the scene back towards Lower Hutt.

[6] The vehicle was stopped by the police after a short but erratic pursuit, and a search was conducted, revealing the 12-gauge pump action shotgun.

The starting point

[7] The Crown has suggested a starting point of nine years taking aggravating burglary as the lead charge and applying an uplift for the aggravated wounding charge. Your counsel has said that this is too high given factors relating to your involvement.

[8] I do not consider that I should set a starting point using the aggravated burglary charge, and then further uplift for the aggravated wounding charge. That would be artificial. The facts for each of those charges are the same, and when sentencing for aggravated burglary the aggravating factors include the fact that a firearm used in the burglary…

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 Tawhai

Details

AGLC: R v Tawhai [2023] NZHC 311
Case: [2023] NZHC 311
Decision Date: 27 February 2023

CaseChat Overview and Summary

In the case of R v Tawhai, the defendant, Teimana Tawhai, was sentenced for his involvement in a serious aggravated burglary and aggravated wounding incident that took place in Upper Hutt. Tawhai had pleaded guilty to the charges, which stemmed from an attack on a residence where Tawhai and his co-offenders, armed with a shotgun, attempted to settle a dispute with an occupant. During the incident, the shotgun was fired multiple times, resulting in the victim being struck by pellets.

The legal issues that the court addressed included determining an appropriate starting point for the sentence and assessing any discounts that could be applied based on mitigating factors. The Crown proposed a starting point of nine years, which the defence argued was too high. The court ultimately decided that a starting point of eight years was appropriate, considering the seriousness of the crime but also acknowledging that Tawhai was not the shooter. The court found that factors such as the planning and premeditation of the crime, the use of a weapon, the number of participants, and the home invasion at night were all aggravating factors.

Further discounts were considered based on Tawhai's guilty plea, his youth at the time of the offence, his cultural background, and his struggles with drug and alcohol addiction. The court applied a 25% discount for the guilty plea and an additional 10% discount for personal mitigating circumstances, resulting in an overall discount of approximately 35%. This reduced the sentence to five years and two months imprisonment, to be served concurrently on both charges.

The final orders of the court were that Teimana Tawhai be sentenced to five years and two months imprisonment on each charge of aggravated burglary and aggravated wounding, with the sentences to run concurrently, effectively meaning Tawhai would serve a single sentence of five years and two months.

Orders