Legal Research
Cases
R v Tikena-Stuchbery

R v Tikena-Stuchbery

Case [2022] NZHC 1266 27 May 2022

Criminal Liability

Sentencing

Mens Rea & Intention

Aggravated & Exemplary Damages

Restitution

Appeal

Criminal Law

No judgment structure available for this case.

Type to search within this case.

NOTE: ORDER SUPPRESSING NAME AND IDENTIFYING PARTICULARS OF THE COMPLAINANT PURSUANT TO S 182 OF THE FAMILY VIOLENCE ACT 2018; ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980.

FOR FURTHER INFORMATION, PLEASE SEE

https://

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-004-9423

[2022] NZHC 1266

THE QUEEN

v

ZACQURIN TIKENA-STUCHBERY

Hearing: 27 May 2022

Appearances:

F M T Culliney and J Lee for Crown

C G Wright and A A Prasad for Defendant

Sentence:

27 May 2022

SENTENCE OF PAUL DAVISON J

Solicitors:
Crown Solicitor, Auckland

R v TIKENA-STUCHBERY [2022] NZHC 1266 [27 May 2022]

Introduction

[1] Mr Tikena-Stuchbery you appear before the Court today for sentence having pleaded guilty to one charge of wounding with intent to cause grievous bodily harm relating to the serious assault occurring on the evening of 28 November 2020, and one representative charge of assault on a person in a family relationship, relating to the earlier assault on the complainant that occurred during the afternoon or evening of the previous day.1

[2] Your sentencing engages the “three strikes” regime under the Sentencing Act 2002. The charge of wounding with intent to cause grievous bodily harm is your third strike offence. This means that as the law currently stands, I am required by the Sentencing Act to sentence you to the maximum term of imprisonment prescribed for that offence which is 14 years’ imprisonment,2 unless I decide that such a sentence would be so disproportionately severe as to breach s 9 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights).3 Section 9 of the Bill of Rights provides that everyone has the right not to be subject to “disproportionately severe” punishment.

[3] If I decide that to sentence you to the maximum penalty of 14 years’ imprisonment does breach s 9 of the Bill of Rights, I am required to sentence you in accordance with the normal sentencing principles.4 However, if I conclude that to sentence you to 14 years’ imprisonment does not breach s 9 of the Bill of Rights, the Sentencing Act requires me to order that you serve that 14 year sentence without parole, unless I am satisfied that it would be “manifestly unjust” for you to do so.5

Your offending

[4]I commence with the facts of your offending.

[5] You and the complainant in this matter have been in an on and off kind of relationship for the past four years. Together you have a young child, a daughter. She

1      Crimes Act 1961, ss 188(1) and 194A: carrying maximum penalties of 14 years’ imprisonment and two years’ imprisonment respectively.
2      Sentencing Act 2002, s 86D(2).
3      See Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551.
4      At [231] per O’Regan and Arnold JJ and [252] per Glazebrook J.
5      Section 86D(3).

lives with the complainant’s mother. At the time…

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 Tikena-Stuchbery

Details

AGLC: R v Tikena-Stuchbery [2022] NZHC 1266
Case: [2022] NZHC 1266
Decision Date: 27 May 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, the Court sentenced Zaqcurin Tikena-Stuchbery to five years and two months’ imprisonment for wounding with intent to cause grievous bodily harm. The Court also sentenced him to 12 months’ imprisonment for assault on a person in a family relationship, to be served concurrently with the first sentence. Tikena-Stuchbery was facing his third strike offence and, under the three strikes regime, the Court was required to sentence him to the maximum penalty of 14 years’ imprisonment, unless such a sentence would breach the New Zealand Bill of Rights Act 1990 (Bill of Rights). The Court found that a sentence of 14 years’ imprisonment would be disproportionately severe and would breach s 9 of the Bill of Rights. The Court therefore sentenced Tikena-Stuchbery in accordance with the normal sentencing principles, imposing a sentence of five years and two months’ imprisonment. The Court also imposed a minimum term of imprisonment of half of the sentence, and made a protection order in relation to the complainant pursuant to s 123B(2)(a) of the Sentencing Act 2002.

Orders