Simeon v R - [2010] NZCA 559

IN THE COURT OF APPEAL OF NEW ZEALAND
CA97/2010
[2010] NZCA 559

BETWEENELIAS PIKIKOTU SIMEON

Appellant

ANDTHE QUEEN

Respondent

CA120/2010
AND BETWEEN JORDAN JAMES ATARIA

Appellant

ANDTHE QUEEN

Respondent

Hearing:14 November 2010

Court:Glazebrook, Chisholm and Miller JJ
Counsel:A M Simperingham for Mr Simeon

S G Vidal for Mr Ataria
S B Edwards for Respondent

Judgment:26 November 2010 at 2.30pm

JUDGMENT OF THE COURT

A           Mr Simeon’s appeal against sentence is dismissed.
B           Mr Ataria’s appeal against conviction and sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Chisholm J)
Introduction
[1]        Following trial in the District Court at Gisborne both appellants were found guilty of being parties to the wounding of an innocent bystander with intent to cause grevious bodily harm during the course of a group attack in Gisborne. The jury also found Mr Simeon guilty of unlawful assembly, Mr Ataria having pleaded guilty to that charge at the beginning of the trial. Sentences of six and a half years and six years imprisonment respectively were imposed on Mr Simeon and Mr Ataria.
[2]        Mr Ataria appeals against both conviction and sentence. Mr Simeon appeals against sentence only.
[3]        Although Mr Ataria’s conviction appeal was originally advanced on the primary basis that evidence relating to blood and DNA found on his clothing and shoe was inadmissible, it became apparent during the hearing of the appeal that this argument was untenable. Thereafter the appeal focused on two grounds: first, the Judge failed to properly direct the jury in relation to those matters; secondly, the jury’s verdict was unreasonable or cannot be supported having regard to the evidence.[1]
[1]      Crimes Act 1961, s 385(1)(a).
[4]        Both sentence appeals allege that the sentences imposed on the appellants were manifestly excessive. The appellants also allege that there is an unjustifiable disparity between their sentences and those imposed on their co-offenders.
Background
[5]        At around 9 pm on 29 June 2008 a group of 15-20 associates or supporters of the Mongrel Mob gathered in a street where members of the rival Black Power gang were known to reside. Most of the group were wearing gang insignia and many were armed with bats and sticks. As they marched up Halley Street they were yelling out “Sieg Heil”. A neighbour said “It was like an army thing happening. It was very frightening”. Being fearful that violence was about to erupt, she rang the police.
[6]        The victim, a 20 year old man who was not associated with either gang, heard the commotion and walked up his driveway to find out what was going on. He saw a group of five or six people (who had broken away from the main group) standing near the end of his driveway. Some of them were carrying hockey sticks. When the group reached the victim one of them asked his name, and then the name of his father.
[7]        Mr Simeon was the only person in the group that the victim was able to identify. The victim said that…

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 Simeon v R

Details

AGLC: Simeon v R [2010] NZCA 559
Case: [2010] NZCA 559
Decision Date: 26 November 2010

CaseChat Overview and Summary

Elias Pikikotu Simeon and Jordan James Ataria were convicted of being parties to the wounding of an innocent bystander with intent to cause grievous bodily harm during the course of a group attack in Gisborne. Simeon was also convicted of unlawful assembly and Ataria pleaded guilty to the same charge. They were sentenced to six and a half years and six years imprisonment respectively. Both appellants lodged appeals against their sentences and Ataria also appealed against his conviction. The Court of Appeal considered the arguments put forward by the appellants and found that the evidence against Ataria was strong and the Judge had not misdirected the jury. The Court also found that the sentences imposed on the appellants were not manifestly excessive and dismissed both appeals.

Orders