Tahere v Crown Law Office

[2020] NZHC 61

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2019-419-000083

[2020] NZHC 61

BETWEEN

DAVID JOSEPH TAHERE

Appellant

AND

CROWN LAW OFFICE

Respondent

Hearing:

3 February 2020

Appearances:

Appellant in person

K Whyte for Respondent

Judgment:

4 February 2020

JUDGMENT OF LANG J

[on appeal against sentence]

This judgment was delivered by me on 4 February 2020 at 10.30 am.

Registrar/Deputy Registrar Date……………

TAHERE v CROWN LAW OFFICE [2020] NZHC 61 [4 February 2020]

[1]    Mr Tahere pleaded guilty in the District Court to two charges of assault with intent to injure.   On 13 September 2019, Judge R G Marshall sentenced him to     18 months imprisonment.1 Mr Tahere has now served the sentence but nevertheless appeals against it.

The facts

[2]    The facts giving rise to the charges are contained in two separate summaries, both of which were accepted as correct for sentencing purposes. The first charge was laid following an incident that occurred in the early hours of 28 January 2019. On that date Mr Tahere was drinking alcohol with the victim at his residence. At about 3.30 am they left the address and walked to another associate’s house. After they found that person was not home they went to a nearby service station, where the victim purchased some cigarettes.

[3]    Mr Tahere demanded the cigarettes. When the victim refused to hand them over, Mr Tahere instead demanded money. The victim again refused and went to walk away. Mr Tahere then punched the victim once in the face with a closed fist. He also ripped the victim’s shirt as he attempted to escape. Mr Tahere then chased the victim down a driveway, and only stopped when the victim began knocking on the door of this address. The victim of this offending received a cut lip that required seven stitches. In explanation to the police Mr Tahere stated that he had punched the victim but did not try to rob him.

[4]    The second charge was laid following an incident that occurred approximately one week later, on 5 February 2019. On the evening of that date Mr Tahere arrived unannounced at the address of the female complainant. I infer he had been in a relationship with her prior to this date. After banging on the door and demanding to be let in, he smashed through an already damaged window to gain entrance to the house. Once inside he began verbally abusing the complainant. This prompted her to tell him that he was being violent and aggressive. Mr Tahere replied, “I’ll show you what violent and aggressive is”. He then punched the complainant in the mouth on

1      New Zealand Police v Tahere [2019] NZDC 23855.

numerous occasions before throwing her on the ground and kicking her in the stomach and legs.

[5]    Following this, Mr Tahere grabbed the victim by her hair and dragged her outside the address. There he continued to yell at the complainant before dragging her back inside the address and holding her on the ground. He then kicked the complainant again in the stomach. As a result of this incident the complainant suffered a cut lip, bruising to her left hand and large abrasions to her left elbow and calf. In explanation to the police Mr Tahere said that the complainant had punched him seven times and then he had responded with a single punch.

The hearing in the District Court

[6]    Mr Tahere was arrested on 5 February 2019 and remained in custody until, at his request, he was brought before the District Court on 13 September 2019. On that date he entered guilty pleas to both charges and asked to be sentenced on the same date. He waived the requirement for a pre-sentence report to be prepared in anticipation of sentence.

[7]    The Judge’s sentencing remarks record that he took a starting point of 20 months imprisonment on both charges and then applied an uplift of four months to reflect Mr Tahere’s previous convictions for similar offending. From the resulting sentence of 24 months imprisonment, the Judge deducted six months, or 25 per cent, to reflect guilty pleas. This produced the end sentence of 18 months imprisonment.

Grounds of appeal

[8]    Mr Tahere was originally represented by counsel but ultimately presented the appeal against sentence on his own behalf. During the hearing before me it became evident that Mr Tahere was also challenging his convictions, although the grounds for this are not entirely clear.

[9]    I decline to grant Mr Tahere leave to amend the grounds of his appeal to include an appeal against conviction. Mr Tahere was represented by counsel when he entered his guilty pleas and clearly wished to be sentenced immediately. That was not

surprising given the fact that he had already spent approximately seven months in custody and was obviously anxious to have matters brought to a conclusion.

[10]   The appeal against sentence is based largely on Mr Tahere’s impression that the Judge imposed a four month uplift to reflect the charge relating to the incident in the early hours of 28 January 2019. He maintains this incident never occurred and that no uplift should have been applied to reflect it.

Decision

[11]   The transcript of the Judge’s sentencing remarks records that he applied the four month uplift to reflect Mr Tahere’s convictions for similar offending. When I pointed this out, Mr Tahere told me he did not accept the transcript was accurate. I then arranged for the Registrar to play the recording of the Judge’s sentencing remarks in open Court. This demonstrated that the transcript has correctly recorded the reason for the four month uplift. It follows that I do not accept Mr Tahere’s submission that the Judge erred by applying an uplift of four months to reflect the first charge.

[12]   Given the nature and seriousness of the two offences I do not consider a starting point of 20 months imprisonment was in any event outside the available range. An uplift of four months to reflect previous convictions was also appropriate given the fact that Mr Tahere has a large number of previous convictions for offending involving violence. Mr Tahere does not challenge the discount applied to reflect his guilty pleas. This is not surprising given the fact that they came approximately seven months after Mr Tahere’s first appearance. It follows that the end sentence of 18 months imprisonment cannot be regarded as manifestly excessive.

Result

[13]The appeal against sentence is dismissed.

Lang J

Solicitors:

Crown Solicitor, Hamilton Copy to: Appellant