R v Tuwairua - [2009] NZCA 495

IN THE COURT OF APPEAL OF NEW ZEALAND
CA429/2009
[2009] NZCA 495
THE QUEEN
v
LIONEL JAMES TUWAIRUA
Hearing:8 October 2009

Court:William Young P, Panckhurst and MacKenzie JJ
Counsel:D G Slater for Appellant

L C Preston and H McKenzie for Crown

Judgment:21 October 2009 at 4 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Panckhurst J)
Introduction
[1] The appellant was sentenced to two years two months’ imprisonment in the District Court upon a charge of wounding with reckless disregard. He challenges that sentence on the grounds that the starting-point adopted by Judge Phillips was too high, that an uplift of seven months for personal aggravating factors was too much and that the Judge erred in his assessment of the facts in two respects.
The offending
[2] At about midnight on Christmas Eve 2008 the appellant was at his father’s home. His father, the victim, arrived home from the hotel in an intoxicated state. The appellant had also been drinking. An argument developed. The summary of facts continued the narrative in this way:
... the [appellant] walked to the kitchen and located a steak knife. He then returned to confront the victim in the dining area of the house.
He began lunging and pointing the knife at the victim stating “come on then”.
He continued lunging towards the victim with the knife stabbing him in the back of his right hand which was positioned in front of his stomach area.
As a result an artery in the victim’s right hand was severed which caused a large amount of blood loss and as a result the defendant called an ambulance stating that the victim had cut his own wrists.

[3]        In March 2009 the appellant pleaded guilty on request. After some delay he was sentenced by Judge Phillips on 9 June 2009. The Crown accepted that the guilty plea was early and warranted full recognition.
The sentencing
[4]        The maximum penalty for wounding with reckless disregard is seven years’ imprisonment. Judge Phillips fixed a starting-point of two years eight months. He did so by reference to the guideline decision in R v Taueki [2005] 3 NZLR 372 (CA), while recognising that this case involved a lesser charge and after noting that the intent attributed to the appellant (acting with reckless disregard) was “entirely appropriate”: at [2].
[5] The Judge then made an uplift of seven months because he considered the appellant “a man of a high propensity to commit acts of violence”, as evidenced by his previous convictions for assaults of various types: at [4].
[6]        Finally a reduction of one-third was made for the early guilty plea, whereby the sentence of three years three months was reduced to two years two months’ imprisonment.
The grounds of appeal
Was the starting-point within range?
[7]        We are satisfied that it was. Although the Judge, after reference to Taueki, commented that the bands in that case had to be reduced by 50…

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 Tuwairua

Details

AGLC: R v Tuwairua [2009] NZCA 495
Case: [2009] NZCA 495
Decision Date: 21 October 2009

CaseChat Overview and Summary

Lionel James Tuwairua appealed against his two-year-and-two-month sentence imposed by the District Court for wounding with reckless disregard. He challenged the starting-point, the uplift for personal aggravating factors, and the Judge's assessment of certain facts. The Court of Appeal of New Zealand upheld the sentence. The maximum penalty for the offence was seven years’ imprisonment. Judge Phillips fixed a starting-point of two years eight months by reference to the guideline decision in R v Taueki, and made a seven-month uplift for the appellant’s propensity to commit acts of violence. The Court of Appeal held that the starting-point was within range, and the uplift was justified. The Court found that the distinctions raised in the appeal regarding the location of the confrontation and the position of the victim's hand were immaterial to the assessment of the sentence. The Court of Appeal dismissed the appeal against sentence.

Orders