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Reuben v R

Reuben v R

Case [2017] NZCA 138 27 April 2017

Sentencing

Breach of Contract

Judicial Review

Admissibility of Evidence

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA454/2016
[2017] NZCA 138

BETWEEN	LEVI HOHEPA REUBEN Appellant
AND	THE QUEEN Respondent

CA473/2016
BETWEEN	AKUHATUA TIHI Appellant
AND	THE QUEEN Respondent

Hearing:	3 April 2017
Court:	Randerson, Clifford and Whata JJ
Counsel:	J R Rapley for Appellant Reuben P J Shamy for Appellant Tihi M J Lillico and C J Hurd for Respondent
Judgment:	27 April 2017 at 11am

JUDGMENT OF THE COURT

AThe sentence appeal by Mr Reuben (CA454/2016) is allowed.
B Mr Reuben’s sentence in the High Court is quashed.
CIn substitution, Mr Reuben is sentenced to six years and six months imprisonment with a minimum period of imprisonment of three years and three months.
DThe conviction appeal by Mr Tihi (CA473/2016) is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Table of Contents

Para No

Introduction
Background facts
The Judge’s approach to sentencing
Mr Reuben’s grounds of appeal

Starting point
Discount for youth
Credit for Mr Reuben’s offer to plead guilty to manslaughter
The minimum period of imprisonment

Result of Mr Reuben’s sentence appeal
Mr Tihi’s conviction appeal

Were the letters admissible?
Section 32 of the Evidence Act 2006
Section 32 — discussion

Result of Mr Tihi’s conviction appeal

[1]
[3]
[6]
[19]
[20]
[30]
[35]
[38]
[40]
[42]
[44]
[51]
[56]
[64]

Introduction

These two appeals relate to an incident in the Christchurch Men’s Prison. The appellants, Mr Reuben and Mr Tihi, were serving prisoners. They and a third prisoner, Mr Betham, carried out an assault on a fourth prisoner who later died in hospital. After a jury trial before Nation J, Mr Tihi was convicted of murder and sentenced to life imprisonment with a minimum period of 13 years.[1] Mr Reuben and Mr Betham were convicted of manslaughter. Mr Reuben was sentenced to seven years and eight months imprisonment with a minimum period of four years. Mr Betham was sentenced to imprisonment for a period of six years but with no minimum period.
[1]R v Betham [2016] NZHC 2107 [Sentencing notes].
Mr Reuben appeals against his sentence on the ground it was manifestly excessive. Mr Tihi appeals against his conviction, contending that letters Mr Tihi wrote to his family after the assault ought not to have been admitted at his trial, and that there was a breach of s 32 of the Evidence Act 2006 by the prosecutor which the Judge did not correct in his summing-up.

Background facts

CCTV footage showed that on 25 March 2015 Mr Tihi and Mr Reuben were outside a cell door, two down from the victim’s cell. The Crown case was that they were waiting for the victim to return to his cell. When he did so, Mr Tihi, having bound his hands in white tape, entered the victim’s cell. Almost immediately afterwards, Mr Reuben entered the victim’s cell. Mr Betham also entered the cell. Mr Tihi was in the victim’s cell for one minute and seventeen seconds, Mr Reuben for a few seconds less and Mr…

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 Reuben v R

Details

AGLC: Reuben v The Queen [2017] NZCA 138
Case: [2017] NZCA 138
Decision Date: 27 April 2017

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard appeals from two prisoners, Mr Reuben and Mr Tihi, who were involved in an assault on another prisoner that resulted in his death. Mr Reuben appealed against his sentence for manslaughter, arguing it was manifestly excessive. Mr Tihi appealed against his conviction for murder, contending that letters he wrote to his family after the assault should not have been admitted as evidence and that there was a breach of section 32 of the Evidence Act 2006 by the prosecutor, which the Judge did not correct in his summing-up. The Court of Appeal allowed Mr Reuben's appeal against his sentence, finding that a discount for his youth and his offer to plead guilty to manslaughter should have been allowed. The Court substituted a sentence of six years and six months imprisonment with a minimum period of imprisonment of three years and three months. The Court dismissed Mr Tihi's appeal against his conviction, finding that the letters were admissible and that any potential breach of section 32 of the Evidence Act 2006 did not result in a miscarriage of justice.

Orders