Ta'Akimoeaka v Police - [2018] NZHC 68

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE

CRI-2017-488-000050 [2018] NZHC 68

BETWEEN
JOHN TA’AKIMOEAKA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 7 February 2018

Appearances:

N S Leader for Appellant
M Smith for Respondent

Judgment:

7 February 2018

ORAL JUDGMENT OF WYLIE J

Solicitors/counsel:
N S Leader, Auckland
Marsden Woods Inskip Smith, Whangarei

TA’AKIMOEAKA v NEW ZEALAND POLICE [2018] NZHC 68 [7 February 2018]

Introduction

[1] The appellant, Mr John Ta’akimoeaka, appeals a sentence of six years and three months’ imprisonment imposed by Judge Cunningham in the District Court at Whangarei1 after he pleaded guilty to one charge of wounding with intent to cause grievous bodily harm.2

[2] Mr Ta’akimoeaka accepts that a term of imprisonment is the only appropriate sentence. However, he appeals the sentence imposed, asserting that it is manifestly excessive.

Extension of time

[3] The appeal against sentence was filed some 17 working days after the statutory time limit had expired.3 Mr Ta’akimoeaka seeks leave to extend the time allowed for filing the appeal.

[4] The delay has been explained. In essence, counsel sent a letter of advice to Mr Ta’akimoeaka. Unfortunately, it was not made available to him by the Department of Corrections, but rather returned to counsel. Counsel was overseas at the time, and when he returned, he inadvertently overlooked the matter. There is no prejudice to the Crown, and Mr Smith, appearing on instructions from the Solicitor-General, responsibly accepted that leave to extend the time for appeal should be granted. I so order.

Factual background

[5] On the afternoon of 5 December 2016, Mr Ta’akimoeaka arrived in his vehicle at an address in Whangarei. Mr Ta’akimoeaka got out of his vehicle and approached the victim, who was known to him. Mr Ta’akimoeaka picked up a four-pronged metal wheel brace that was lying on the ground. He walked towards the victim, carrying the wheel brace. The victim started running towards the rear of the property. Mr Ta’akimoeaka chased after him and struck him on the back of his right leg with the
wheel brace, causing him to fall to the ground.

1      R v Ta’akimoeaka [2017] NZDC 21328.
2      The maximum penalty for wounding with intent to cause grievous bodily harm is 14 years’
imprisonment – Crimes Act 1961, s 188(1).
3      Criminal Procedure Act 2011, s 248(2).

[6] The victim managed to stand up and a struggle ensued. In an attempt to defend himself, the victim attempted to punch Mr Ta’akimoeaka. Mr Ta’akimoeaka responded by striking the victim twice to the head with the wheel brace, hitting him once in the face and once on the top of the head. Mr Ta’akimoeaka also attempted to punch the victim.

[7] The victim was wearing a cap at the time. The blow that struck him on the top of the head was of such force that it made a round hole in the cap, before fracturing his skull underneath. As a result of the…

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.

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Details

Case: [2018] NZHC 68
Decision Date: 7 February 2018

CaseChat Overview and Summary

John Ta'akimoeaka appeals against a sentence of six years and three months’ imprisonment imposed by Judge Cunningham in the District Court at Whangarei after he pleaded guilty to one charge of wounding with intent to cause grievous bodily harm. The maximum penalty for the offence is 14 years’ imprisonment. The appellant accepts that a term of imprisonment is the only appropriate sentence. However, he contends that the sentence imposed is manifestly excessive. The appeal against sentence was filed some 17 working days after the statutory time limit had expired. Mr Ta'akimoeaka seeks leave to extend the time allowed for filing the appeal. The delay has been explained and the court grants the extension. The court considers whether the sentence imposed was manifestly excessive and whether the starting point and mitigating factors were correctly applied. The court finds that the starting point adopted by Judge Cunningham was within the available range and that there was no error in principle in her approach. The court is not persuaded that the end sentence imposed by Judge Cunningham was manifestly excessive. The appeal is dismissed.

Orders