Saili v The Queen - [2012] NZCA 149

IN THE COURT OF APPEAL OF NEW ZEALAND

CA633/2011
[2012] NZCA 149

BETWEEN TOETU FALEMANU TUI SAILI
Appellant

AND THE QUEEN
Respondent

Hearing: 19 March 2012

Court: Wild, Chisholm and MacKenzie JJ

Counsel: R M Gould for the Appellant
D R La Hood for the Respondent

Judgment: 17 April 2012 at 10.30 am

JUDGMENT OF THE COURT

The appeal, which is against both conviction and sentence, is dismissed.

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REASONS OF THE COURT
(Given by Wild J)

Introduction

Mr Tui Saili appeals against both his conviction and his sentence.
Following a four day trial presided over by Judge Harrop in the Wellington District Court in August last year, the jury found Mr Tui Saili guilty on the single count in the indictment:
that … on or about 13 May 2010, at Porirua, with intent to cause grievous bodily harm to Daniel Cummings, [he] did cause grievous bodily harm to Daniel Cummings.
(Section 188(1) Crimes Act 1961)
On 22 September 2011 Judge Harrop sentenced Mr Tui Saili to eight and a half years imprisonment, with a minimum period of imprisonment (MPI) of half that sentence.
Mr Tui Saili appeals against his conviction on the ground that the trial Judge erred in the exercise of his discretion, by refusing to include in the indictment the lesser charge contained in s 188(2) of the Crimes Act 1961.[1] On his behalf Ms Gould contends that there is a real and substantive risk that justice may have miscarried as a result, and that the conviction is unsafe.
[1] Section 188(2) is set out in [10] following.
The ground for the appeal against sentence is that the sentence of eight and a half years imprisonment is manifestly excessive in all the circumstances of this case.

The offending

On the night of 13 May 2010 a Mr Cummings was making his way home from the Porirua RSA where he had been drinking. He was moderately intoxicated. He called in at the house where Mr Tui Saili was living and knocked on the front door. The ensuing altercation ended when Mr Tui Saili and others told Mr Cummings to leave, pushed him out the front door and closed it.
Instead of going home, Mr Cummings threw a beer bottle, smashing one of the glass panels of the front door. The following part of the Judge’s sentencing remarks describes what then happened and its consequences for Mr Cummings:[2]
[6] You [Mr Tui Saili] opened the door and immediately began punching him about the head and body. You were assisted initially by one of the other occupants but when he fell to the ground you began to kick his head and body several times and most significantly you picked up a wooden bench seat, which was produced in evidence, and you repeatedly hit him in the body and the head most significantly with that item and that carried on, obviously, when he was in no position to defend himself so he was a particularly vulnerable victim in the latter part…

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 Saili v The Queen

Details

AGLC: Saili v The Queen [2012] NZCA 149
Case: [2012] NZCA 149
Decision Date: 17 April 2012

CaseChat Overview and Summary

Toetu Falemanu Tui Saili appeals against both his conviction and sentence. The conviction is for causing grievous bodily harm to Daniel Cummings on 13 May 2010, with intent to cause grievous bodily harm. The sentence is eight and a half years imprisonment, with a minimum period of imprisonment of half that sentence. Ms Gould, on behalf of the appellant, argues that the trial Judge erred in the exercise of his discretion by refusing to include a lesser charge in the indictment. The ground for the appeal against sentence is that the sentence of eight and a half years imprisonment is manifestly excessive. The Crown argues that the sentence is not manifestly excessive.

The Court found that the trial Judge did not err in his refusal to include a lesser charge in the indictment. The Court found that there was no real risk that justice miscarried. The Court also found that the sentence of eight and a half years imprisonment was not manifestly excessive.

The appeal, both against conviction and against sentence, is dismissed.

Orders