R v Tawhai - [2022] NZHC 998

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2021-092-238 [2022] NZHC 998

THE QUEEN

v

WILLIAM SPRING TAWHAI

Hearing: 10 May 2022

Appearances:

R B Annandale for Crown

A B Fairley and M A Heffernan for Defendant

Sentence:

10 May 2022

SENTENCING REMARKS OF PETERS J

Solicitors:Marsden Woods Inskip Smith, Crown Solicitor, Whangārei Thomas Wilson, Whangārei

R v TAWHAI [2022] NZHC 998 [10 May 2022]

Introduction

[1] Mr Tawhai, you appear for sentence having pleaded guilty to the following charges:

(a)two of assault on a person in a family relationship;1 and

(b)one of wounding with intent to injure.2

[2] The offending was committed against S, your then partner, on 8 November 2020. As originally laid, the charges you faced were the two assaults to which I have just referred, and kidnapping which the Crown has not pursued.

[3] The wounding charge to which you pleaded guilty has a maximum sentence of seven years’ imprisonment, and was charged as an alternative to the more serious offence of wounding with intent to cause grievous bodily harm, which has a maximum sentence of 14 years’ imprisonment. When you entered your guilty pleas on 16 April 2021, it was to the lesser wounding offence.

[4] The inevitable outcome of your sentencing today will be a period of imprisonment. However, the main issue is whether I should impose what we refer to as a finite term of imprisonment or preventive detention, in which case the date of your release will be a matter for the Parole Board. Judge McDonald referred you for sentence to the High Court because he thought a sentence of preventive detention was possible. Mr Annandale, for the Crown, does seek such a sentence. Mr Fairley, for you, submits that such a sentence is not required.

[5] If the Crown seeks a sentence of preventive detention, the Court follows a two- step process. The first is to determine the appropriate finite sentence for your offending. The second is to consider whether you are likely to commit another qualifying offence at the end of that finite sentence. If the answer to that question is yes, and other circumstances warrant, the Court may impose a sentence of preventive detention.

1 Crimes Act 1961, s 194A. Maximum penalty: two years’ imprisonment.
2 Section 188(2). Maximum penalty: seven years’ imprisonment.

The offending

[6] I start by saying a few words about the offending. At about 7 pm on 8 November 2020, you and S were in her car. You had been in a relationship for about a year, but apparently had recently separated. You were driving, and you asked S to go for a walk to talk about your relationship and why it had cooled. S did not wish to and asked to be driven home.

[7] Unhappy with this response, you drove off at speed. S asked to get out but you began punching her arms and shoulders whilst you were driving. You also began abusing…

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 [2022] NZHC 998
Case: [2022] NZHC 998
Decision Date: 10 May 2022

CaseChat Overview and Summary

The case before the High Court of New Zealand in Whangarei was between the Crown and William Spring Tawhai. The defendant had pleaded guilty to two charges of assault on a person in a family relationship and one charge of wounding with intent to injure. The Crown sought a sentence of preventive detention, while the defendant's counsel argued against it. The court had to determine whether to impose a finite term of imprisonment or preventive detention, considering the defendant's likelihood to commit another qualifying offence. After considering the experts' reports, the defendant's criminal history, and the seriousness of the harm to the community caused by the offending, the court found the defendant likely to commit another qualifying violent offence at the sentence expiry date of the finite sentence. The court imposed a sentence of preventive detention on the charge of wounding with intent to injure, with a minimum period of imprisonment of five years. On each charge of assault on a person in a family relationship, the court imposed a sentence of six months' imprisonment, to be served concurrently with each other and with the sentence of preventive detention.

In summary, the court found the defendant likely to commit another qualifying violent offence and imposed a sentence of preventive detention with a minimum period of imprisonment of five years on the charge of wounding with intent to injure and six months' imprisonment on each charge of assault on a person in a family relationship.

Orders