Raroa v R - [2014] NZCA 57

IN THE COURT OF APPEAL OF NEW ZEALAND

CA617/2013
[2014] NZCA 57

BETWEEN	TIEWHERI RAROA Appellant
AND	THE QUEEN Respondent

Hearing:	11 February2014
Court:	White, MacKenzie and Mallon JJ
Counsel:	N P Chisnall for Appellant J E Mildenhall for Respondent
Judgment:	10 March 2014 at 11.00 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.
B The appeal against sentence is allowed.
CThe sentence of three years and nine months’ imprisonment is quashed and a sentence of three years and three months’ imprisonment is substituted.

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REASONS OF THE COURT

(Given by MacKenzie J)

The appellant appeals against a sentence of three years and nine months’ imprisonment imposed by Judge McGuire in the District Court at Rotorua on 14 June 2013 following pleas of guilty to one charge of aggravated robbery and one charge of assault with intent to injure.[1] The appeal is filed out of time so an extension of time to appeal is required. Counsel for the Crown does not oppose this and an extension of time for filing is granted accordingly.
[1]R v Raroa DC Rotorua CRI-2012-063-4081, 14 June 2013.
The aggravated robbery occurred in the early hours of 23 September 2012 when the appellant and a co-offender approached the complainant. The Judge described the offending in these terms:[2]
You approached the complainant. Your co-offender began questioning the complainant about the bag he was carrying and adopted an aggressive fighting stance. You were standing nearby and you showed the complainant the white handle of a knife that was hidden up your sleeve. You told the complainant to hand over his bag or you would drop him. The other accused was also asking for the bag and the complainant believed he would be stabbed if he failed to hand it over. Inside the bag was the complainant’s wallet and assorted cards and cash. Both of you left the area with the bag. He was uninjured but shaken by the event.
[2]At [2].
The assault with intent to injure occurred on 27 April 2013. The victim was the appellant’s partner. There was a domestic dispute which included the appellant slapping the victim on her head. The appellant then grabbed the victim by the throat so that she was struggling for breath and then threw her to the floor. He picked her up and pushed her into the hallway, swung her around against a wall, against another wall, and then threw her to the ground. He then pushed her against a bathroom wall with such force that it made a hole in the wall. He threatened her with a pair of scissors. The victim suffered contusions on both sides of her temples, and her left shoulder. The doctor detected hand marks on her neck.
The Judge took a starting point of two and a half years for the aggravated robbery. He uplifted that by six months to reflect the appellant’s personal aggravating circumstances. He took an 18 month starting point for the…

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 Raroa v R

Details

AGLC: Raroa v R [2014] NZCA 57
Case: [2014] NZCA 57
Decision Date: 10 March 2014 at 11.00 am

CaseChat Overview and Summary

The appellant, Tiewheriri Raroa, appeals against the sentence of three years and nine months’ imprisonment imposed by the District Court at Rotorua. The sentence followed the appellant’s pleas of guilty to charges of aggravated robbery and assault with intent to injure. The appeal is filed out of time, necessitating an extension of time to appeal, which was granted. The primary legal issues in the appeal are whether the sentencing judge made material errors in the calculation of the starting point for the aggravated robbery charge and the extent of the uplift for the appellant’s previous convictions. The Court found that while the starting point for the aggravated robbery was within the appropriate range, the uplift for the appellant’s previous convictions was excessive. The sentence was therefore manifestly excessive and was quashed. A sentence of three years and three months’ imprisonment was substituted.

The aggravated robbery charge involved the appellant and a co-offender approaching the complainant, with the co-offender adopting an aggressive stance and questioning the complainant about his bag. The appellant displayed what appeared to be a knife and threatened to use it. The appellant was not actually armed but led the complainant to believe he was armed. The assault charge involved the appellant’s partner, who was subjected to a violent attack during a domestic dispute. The appellant slapped the victim, grabbed her by the throat, threw her to the floor, pushed her against walls, and threatened her with scissors. The victim sustained bruises and hand marks on her neck.

The sentencing judge took a starting point of two and a half years for the aggravated robbery, reflecting the appellant’s actions in leading the victim to believe he was armed, and six months uplift for the appellant’s personal aggravating circumstances. For the assault charge, the judge took an 18-month starting point and a six-month uplift for the appellant’s previous violence convictions. The judge then applied a starting point of five years on a cumulative basis and allowed a one-quarter discount for the early guilty plea, resulting in a final sentence of three years and nine months’ imprisonment. Counsel for the appellant argued that the starting point for the aggravated robbery was excessive because the judge treated the allegation of the appellant being armed as an aggravating feature, which was disputed. Counsel also argued that the uplift for the appellant’s previous convictions was excessive, amounting to double counting. The Court found that the starting point for the aggravated robbery was within the appropriate range and that the uplift for the appellant’s previous convictions was excessive, amounting to 20 per cent of the total starting point. The Court substituted a sentence of three years and three months’ imprisonment.

Orders