Rautahi v R - [2011] NZCA 351

IN THE COURT OF APPEAL OF NEW ZEALAND

CA78/2011
[2011] NZCA 351

BETWEEN TYRONE RAUTAHI
Appellant

AND THE QUEEN
Respondent

Hearing: 27 June 2011

Court: Wild, Rodney Hansen and MacKenzie JJ

Counsel: Appellant by written submissions
C J Lange for Respondent

Judgment: 28 July 2011 at 2.15 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by MacKenzie J)

Introduction

The appellant appeals against a sentence of six years imprisonment imposed by Judge MacAskill in the District Court at Invercargill following his conviction at trial on two counts of threatening to kill and one count of wounding with intent to cause grievous bodily harm. The appellant initially appealed against both conviction and sentence. He advised by letter that he wished to drop his appeal against conviction. Notice of abandonment was received on 26 May 2011. The appellant also confirmed that he did not wish to attend Court when the appeal was heard, and would rely on his written submissions.

Facts

The charges arose from two incidents, on 8 May and 5 June 2009. The victim was the appellant’s wife, whom he was separated from but staying overnight with on 8 May. At about 2am the victim received a text message on her mobile phone. The appellant reacted in an agitated manner and the victim told him to leave the property. He went to the kitchen and got a small handled axe. He began smashing furniture in the lounge. He pushed and punched the victim and verbally abused her. The victim’s eight year old daughter saw her father with the axe from where she sat alone and crying in her bedroom. The incident continued for about an hour and a half until the appellant demanded that the victim drive him to his home, which she did, leaving her eight year old daughter home alone. In the car the appellant smashed her cellphone and told her never to contact him again.
On Friday 5 June the victim was at home with her teenage son and two of his friends when the appellant came and knocked at the front door. When she answered it she found him agitated and angry and yelling at her. He grabbed her by the arm and urged her into the master bedroom. He then went to the lounge and yelled at the son and friends. There was a verbal confrontation between the appellant and his son which stopped when the victim intervened. The son left the property, and when the victim’s eight year old daughter and friend arrived the victim sent them away. The appellant remained at the house with the victim. He repeatedly punched her about the head using both fists, continuing to punch after she had fallen to the floor. He picked up a piece of firewood and ran towards the victim threatening to kill her. He hit her with the firewood several times, causing open wounds to her head and fingers. The victim called an ambulance and her parents…

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 Rautahi v R

Details

AGLC: Rautahi v R [2011] NZCA 351
Case: [2011] NZCA 351
Decision Date: 28 July 2011

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Tyrone Rautahi appeals against a six-year imprisonment sentence imposed by Judge MacAskill in the District Court at Invercargill. Rautahi was convicted of two counts of threatening to kill and one count of wounding with intent to cause grievous bodily harm. The appeal was initially against both conviction and sentence, but Rautahi later abandoned the appeal against conviction. The key issues for the Court of Appeal were the appropriateness of the starting point for the sentence, the way the impact on the victim was addressed, and the uplift for previous convictions.

The Court of Appeal considered the cases cited by Rautahi and found that the starting point for the sentence was within the appropriate range. The Judge had correctly identified that the offending fell within band 2 of Taueki and adopted a starting point of five and a half years, which was within the range of five to ten years for such cases. The Court of Appeal also found no evidence of bias in the Judge's consideration of the victim's injuries and statements. The uplift for previous convictions was deemed appropriate, as the Judge balanced the need to consider Rautahi's character with the need to avoid punishing him again for past offences.

The appeal was dismissed, and the sentence of six years imprisonment was upheld.

Orders