R v Tohu - [2008] NZCA 89

IN THE COURT OF APPEAL OF NEW ZEALAND
CA32/2008
[2008] NZCA 89
THE QUEEN
v
TE WAIRONGOA TOHU
Hearing:16 April 2008

Court:Hammond, Williams and MacKenzie JJ
Counsel:M B Dodds for Appellant

M D Downs for Crown

Judgment:16 April 2008 at 11.20 am

ORAL JUDGMENT OF THE COURT

An extension of time for appealing against the sentence is refused.
REASONS OF THE COURT
(Given by Hammond J)
Introduction
[1]        Just after midnight on 22 April 2005 a victim in this case, V, was in the carpark at a saloon in Kaikohe. He had just left the bar. The appellant and his brother were also in the carpark.
[2]        While V was talking to a friend something of an altercation developed between him and another male. V was knocked to the ground.
[3]        As V was getting back to his feet from this assault, which is unrelated to the charge before us, the appellant approached him and assaulted him. The appellant also kicked V in the head. The appellant’s brother also began to assault V.
[4]        These assaults continued until V’s girlfriend intervened. She swung a spade about in order to protect V from being hit again.
[5]        Shortly thereafter a second victim, W, came over to see how V was getting along. At this point, V was lying “knocked out” on the ground. Both the appellant and his alleged co-offender then attacked W before other bystanders intervened and brought this further imbroglio to an end.
[6]        The appellant and his co-offender were charged under both s 188(1) and s 189(1) of the Crimes Act 1961 with respect to each of V and W.
[7]        The jury returned only one verdict of guilty on the total of four counts which were so laid. This was against the appellant, for the attack on V – the kicking to the head incident. The conviction was under s 189(1): that with intent to cause grievous bodily harm, he caused injury to V.
[8]        This conviction was entered on 10 May 2007. On 27 July 2007 the appellant was sentenced to two years and nine months imprisonment. He did not appeal against his sentence until 17 December 2007. That appeal is well out of time, and an extension of time for appealing is sought.
The sentencing
[9]        The Judge had some difficulty in assessing the facts in this particular matter. This was because Mr Tohu’s brother was acquitted on the count which concerned V, but not the appellant. Judge de Ridder said that the jury may have formed the view that it was only when the appellant kicked V in the head that all the necessary elements of the offence were constituted; moreover at that point V was no threat to the appellant. That is, this is a case in which the jury took the view that the appellant, as the Judge put it, “had gone too far” in that respect. The Judge was entitled to reach that view, and it seems logical.
[10]     V received…

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 Tohu

Details

AGLC: R v Tohu [2008] NZCA 89
Case: [2008] NZCA 89
Decision Date: 16 April 2008

CaseChat Overview and Summary

In the case of R v Tohu, the appellant was convicted of assaulting V and W in a carpark in Kaikohe in 2005. The appellant and his brother assaulted V, who was knocked to the ground, and then attacked W. The appellant was convicted of the assault on V under s 189(1) of the Crimes Act 1961, while his brother was acquitted. The appellant was sentenced to two years and nine months imprisonment, but did not appeal until December 2007, well after the 28-day limit specified in s 388 of the Crimes Act 1961. The appeal was for an extension of time to appeal the sentence. The legal issue was whether the Court should grant an extension of time for the appeal, considering the delay, reasons for the delay, and the merits of the appeal. The Court considered the factors outlined in R v Knight and R v Lee, including the strength of the appeal on the merits, the reasons for the delay, and the impact on the administration of justice. The Court found that the delay was not satisfactorily explained, and that there was no merit in the appeal. The Court refused the extension of time for appealing against the sentence.

The Court of Appeal refused the appellant's application for an extension of time to appeal his sentence. The appellant had been convicted of assaulting V and W in a carpark in Kaikohe in 2005. He was sentenced to two years and nine months imprisonment in July 2007, but did not appeal until December 2007, well after the 28-day limit specified in s 388 of the Crimes Act 1961. The appeal was for an extension of time to appeal the sentence. The Court considered the factors outlined in R v Knight and R v Lee, including the strength of the appeal on the merits, the reasons for the delay, and the impact on the administration of justice. The Court found that the delay was not satisfactorily explained, and that there was no merit in the appeal. The Court refused the extension of time for appealing against the sentence.

Orders