Sika v R - [2011] NZCA 376

IN THE COURT OF APPEAL OF NEW ZEALAND

CA70/2011
[2011] NZCA 376

BETWEEN TEVITA SIKA
Appellant

AND THE QUEEN
Respondent

Hearing: 2 August 2011

Court: Ellen France, Heath and Lang JJ

Counsel: M N Pecotic for Appellant
A M Toohey for Respondent

Judgment: 9 August 2011 at 9 am

JUDGMENT OF THE COURT

A The appeal against the sentence imposed on the charge of aggravated robbery is dismissed.
BThe appeal against the sentence imposed on the charge of common assault is allowed. The sentence imposed on that charge is quashed and a sentence of three months imprisonment is imposed in its place. That sentence is to be served cumulatively upon the sentence imposed on the charge of aggravated robbery.

REASONS OF THE COURT
(Given by Lang J)

Introduction

Mr Sika pleaded guilty in the District Court at Auckland to charges of aggravated robbery and common assault. On 12 January 2011 Judge Wade sentenced him to two years three months imprisonment on the charge of aggravated robbery.[1] He imposed a cumulative sentence of six months imprisonment on the charge of assault. Mr Sika now appeals against the sentences on the ground that they are manifestly excessive.

The facts

The charge of aggravated robbery

[1] R v Sika DC Auckland CRI-2011-004-4664.

The charge of aggravated robbery arose out of an incident that occurred on 12 March 2010. On that evening Mr Sika was a member of a group of young men who went to the carpark of the Wesley Community Centre in Sandringham. The group approached a parked van, in which the complainant and his brother were sitting. The complainant’s own van was parked nearby.
One of the members of Mr Sika’s group asked the complainant’s brother for a cigarette. The complainant’s brother complied with this request, but he and the complainant then realised that the van in which they were sitting was surrounded by Mr Sika’s associates. At that point they decided to drive away from the carpark, leaving the complainant’s van where it was.
A short time later, the complainant and his brother decided to call the police and to go back to the carpark in order to retrieve the complainant’s van. The complainant and his brother drove up to the complainant’s van, which they saw surrounded by the members of Mr Sika’s group. The complainant then got out of his brother’s van and into his own vehicle. Before he could lock the doors, one of Mr Sika’s associates managed to open the passenger’s door. He then climbed into the complainant’s van and began to punch him. He also demanded that the complainant hand over his cigarettes, money and wallet.
The complainant initially started up the engine of his van in an effort to leave, but decided not to do so because he did not want to hurt members of Mr Sika’s group who were standing around outside the van. He then told his assailant that he could have the van. Notwithstanding this, the man in the passenger seat continued…

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 Sika v R

Details

AGLC: Sika v R [2011] NZCA 376
Case: [2011] NZCA 376
Decision Date: 9 August 2011

CaseChat Overview and Summary

Tevita Sika appealed against his sentences for aggravated robbery and common assault, arguing that they were manifestly excessive. The Court of Appeal considered the arguments and found that the sentence for the aggravated robbery was appropriate, but the sentence for the common assault was excessive. The Court dismissed the appeal against the sentence for aggravated robbery and allowed the appeal against the sentence for common assault. The sentence for the common assault was quashed, and a new sentence of three months imprisonment was imposed, to be served cumulatively with the sentence for aggravated robbery.

The Court found that the aggravated robbery involved a group of young men who intimidated the complainant and his brother, leading them to flee their van. When the complainant returned to retrieve his van, one of Sika's associates assaulted him and stole the van. Sika then drove the stolen van away. The Court found that Sika's role in the robbery was not secondary, and the sentence for the aggravated robbery was appropriate. The Court found that the sentence for the common assault was excessive, as it was a single punch with no lasting physical injury, and did not account for Sika's efforts to rehabilitate himself. The Court imposed a new sentence of three months imprisonment for the common assault, to be served cumulatively with the sentence for aggravated robbery.

Orders