R v Tito

Case [2015] NZHC 2969 26 November 2015

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-055-002443 [2015] NZHC 2969

THE QUEEN

v

AILEEN CHRISANDRA TITO

Hearing: 26 November 2015

Appearances:

Jaspher Rhodes for the Crown
Sharyn Green for the Defendant

Judgment:

26 November 2015

SENTENCING NOTES OF MOORE J

R v TITO [2015] NZHC 2969 [26 November 2015]

Introduction

[1] Ms Tito you appear for sentence having pleaded guilty on the morning of your trial to one charge of being an accessory after the fact of the crime of wounding with intent to injure. That charge carries a maximum sentence of three years and six months’ imprisonment.1

[2] You accept the summary of facts and, of course, having presided over Mr Herkt’s trial, I am familiar with your involvement in the events before, during and after the tragic killing of Matthew Greenslade. However, because sentencing is a process which is required to be undertaken in public, it is necessary for me to set out what happened on the evening of 17 November 2014 and your involvement.

[3] That evening you and Mr Herkt, who was your partner at the time, were drinking with friends in Papakura.

[4] One of those friends, the occupier of the unit you were in, was the victim, Matthew Greenslade.

[5] During the evening Matthew and Mr Herkt became involved in an argument. According to Mr Herkt it was because Matthew threw an empty carton at your bottom and Mr Herkt took offence at that. Whether that was actually the catalyst or not is unimportant. What is not in dispute is that shortly after this Mr Herkt attacked Matthew. You helped to break the fight up. Mr Herkt received minor injuries including a blood nose.

[6] After this everyone moved outside. Matthew then returned to his unit leaving you and Mr Herkt outside.

[7] Obviously still simmering with rage, Mr Herkt went to a nearby unit and asked for a weapon. He was given a knife. He then returned to Matthew’s unit and tried to open the front door. That was locked so he went around to the back. After trying the door and finding it was also locked he kicked it open, ran inside and
attacked Matthew. Matthew fought back but was fatally injured.

1 Crimes Act 1961, ss 71, 188(2) and 312.

[8] You were not inside the house when this attack took place and there is nothing to suggest that you, in any way, encouraged or assisted Mr Herkt in the immediate lead up to the fatal attack.

[9] While Matthew and the two others who were in the house beat a hasty retreat and Matthew was driven to the nearby A&E, where he later died, you went into the house and took Mr Herkt away.

[10] After leaving the house you and Mr Herkt dumped various items of evidence which could link you to the attack. The first item you discarded was the knife. You threw this into a culvert near the railway lines across the road from…

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 Tito

Details

AGLC: R v Tito [2015] NZHC 2969
Case: [2015] NZHC 2969
Decision Date: 26 November 2015

CaseChat Overview and Summary

The defendant, Aileen Chrisandra Tito, was sentenced by the Auckland Registry of the High Court of New Zealand after pleading guilty to being an accessory after the fact to the crime of wounding with intent to injure, a charge carrying a maximum penalty of three years and six months’ imprisonment. The offence was committed in relation to the tragic death of Matthew Greenslade, who was fatally injured by the defendant's partner, Mr Herkt, during an altercation on 17 November 2014. The defendant did not participate in the attack but assisted Mr Herkt in evading detection and disposing of incriminating evidence. The court had to determine an appropriate sentence, taking into account the defendant's personal circumstances, her plea of guilty, and her cooperation with the police.

The court first established a starting point for the sentence by considering the seriousness of the underlying offence, which in this case was the wounding with intent to injure, and the degree of assistance provided by the defendant. The court found that a starting point of 10 months’ imprisonment was appropriate. The court then assessed the defendant's personal circumstances, including her previous convictions, her alcohol and drug abuse issues, and her mental health problems. The court determined that the defendant was entitled to a discount for her guilty plea and cooperation with the police, as well as a further discount for her personal circumstances. The court concluded that an overall discount of 20% was appropriate, resulting in a final sentence of eight months’ imprisonment.

In addition to the custodial sentence, the court imposed conditions on the defendant's release, including a prohibition on alcohol consumption for six months and a requirement to complete an alcohol and drug counselling programme as recommended by the Probation Service. The court also invited the defendant's counsel to submit a further order for assessment and treatment following the defendant's release. The defendant was sentenced to eight months’ imprisonment, with the specified release conditions.

Orders