Rihia v The Queen - [2016] NZCA 90

IN THE COURT OF APPEAL OF NEW ZEALAND

CA549/2015
[2016] NZCA 90

BETWEEN	JOSHUA KANI RIHIA Appellant
AND	THE QUEEN Respondent

Hearing:	12 February 2016
Court:	Miller, Fogarty and Toogood JJ
Counsel:	R J Laybourn and L S Caley for Appellant P K Hamlin for Respondent
Judgment:	5 April 2016 at 3.00 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Toogood J)

Introduction

In the District Court at Hamilton, a jury found Joshua Kani Rihia guilty of one charge of wounding with reckless disregard for the safety of another.[1] This was an alternative to a charge of wounding with intent to injure, on which Mr Rihia was acquitted. On 14 September 2015, Judge Turner sentenced him to imprisonment for two years and two months.[2] Mr Rihia now appeals this sentence on the ground that it is manifestly excessive.
[1]Crimes Act 1961, s 188(2); maximum penalty, 7 years’ imprisonment.
[2]R v Rihia [2015] NZDC 18309.
The issues on appeal are whether the sentencing Judge made a material error in declining to discount the term of imprisonment on account of genuine remorse and, if so, whether a different sentence should be imposed.[3] If a discount was called for, Mr Rihia may have been eligible for home detention rather than imprisonment.

The facts

[3]Criminal Procedure Act 2011, s 250.

On the afternoon of 31 May 2014, Mr Rihia played rugby, following which members of his team and he socialised at various places in and around Raglan. Ultimately, they ended up at the same bar as the victim, Mr Horwood, and his friends. At about 2:00 am, Mr Rihia and some of his associates, and Mr Horwood and some of his friends, left the bar in a van with the idea that the driver would drop the passengers off at various places. At one point, one of the passengers needed a toilet break and everybody left the van.
An argument developed between Mr Horwood and Mr Rihia when Mr Rihia refused to allow Mr Horwood to re-enter the vehicle. When Mr Horwood told the Mr Rihia to stop trying to be “the man”, Mr Rihia replied, “I’ll show you who’s the fucken man” and immediately punched Mr Horwood on the right side of his jaw. Mr Horwood and another witness, Ms Splett, said the force of the blow was such that Mr Horwood was rendered unconscious instantly. He fell to the ground, striking his head on the concrete. Others present went to Mr Horwood’s aid; eventually an ambulance was called and he was taken to hospital. According to the Judge, who had presided over the trial, Mr Rihia showed no concern for Mr Horwood at any stage that morning.

The victim

Mr Horwood suffered a fracture at the back of his skull, bruising to the brain and post-traumatic amnesia. He was referred to the Auckland Brain Injury Rehabilitation Unit where he remained for 15 days before he discharged himself. The amnesia had lasted for a…

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 Rihia v The Queen

Details

AGLC: Rihia v The Queen [2016] NZCA 90
Case: [2016] NZCA 90
Decision Date: 5 April 2016 at 3.00 pm

CaseChat Overview and Summary

Joshua Kani Rihia appealed against his two-year and two-month sentence for wounding with reckless disregard for the safety of another. The appellant argued that the sentence was manifestly excessive because the sentencing Judge had failed to discount the term of imprisonment for his expression of genuine remorse and, as a result, the appellant was ineligible for home detention. The Court of Appeal found that the Judge had erred in his approach to mitigating factors but concluded that the sentence was not manifestly excessive.

The appeal raised two issues: whether the sentencing Judge erred in declining to discount the term of imprisonment for genuine remorse, and whether, if so, a different sentence should be imposed. The Court found that the Judge erred in his approach to mitigating factors because he had failed to accept the favourable view of the probation officer that the appellant was genuinely remorseful. The Judge had regarded the appellant's explanations of his defence to the probation officer and the provision of the medical report as factors indicating a lack of remorse. The Court found that the Judge should not have taken those explanations into account and held that the appellant's provision of the medical report was relevant to the consequences of the offending. The Court concluded that, notwithstanding the errors, the other factors provided a tenable basis for the Judge to decline to make a further deduction for remorse.

The Court of Appeal dismissed the appeal because, while the sentence was not correct, it was not manifestly excessive. The Court was not satisfied that a different sentence should be imposed.

Orders