Tahitangatatarei v The Queen - [2013] NZCA 293

IN THE COURT OF APPEAL OF NEW ZEALAND

CA1/2013
[2013] NZCA 293

BETWEEN	MINETTE CHANEL TAHITANGATATAREI Appellant
AND	THE QUEEN Respondent

Hearing:	20 June 2013
Court:	Wild, Miller and MacKenzie JJ
Counsel:	C J Nicholls for Appellant M E Ball for Respondent
Judgment:	10 July 2013 at 10.30 am

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wild J)

Introduction

This is an appeal against both conviction and sentence.
Following a jury trial in the District Court at Wellington, Ms Tahitangatatarei was convicted of wounding a man called Mr Pamata with intent to cause him grievous bodily harm (GBH). Her co-defendant, Ms Ford, was found not guilty of that charge, and not guilty of a second charge of wounding a Mr Lealaogata with intent to injure him.
Following the trial Ms Tahitangatatarei pleaded guilty to a further charge of assault with intent to injure arising from an incident in Arohata Prison while she was on remand in custody awaiting trial on the first charges.[1]
[1]R v Tahitangatatarei DC Wellington CRI-2011-091-4271, 7 December 2012.
Judge Tuohy sentenced Ms Tahitangatatarei to an effective term of four years imprisonment in respect of both charges.
Ms Tahitangatatarei appeals her conviction on two grounds:
(a)the photo montage identification of her as the woman involved in the GBH charge was wrongly admitted, resulting in a miscarriage of justice; and
(b)the verdict on the GBH charge was unreasonable, in that it was not supported by the evidence.
Ms Tahitangatatarei appeals her sentence as manifestly excessive, in that:
(a)the sentencing starting point taken by the Judge was too high; and
(b)a further discount of about three months should have been given for the fact that Mr Pamata had started the fight which resulted in his serious injuries.

Facts

The convictions arise out of the appellant’s involvement in a drunken fight outside a bar in Porirua in the early hours of 1 October 2011, after the bar had closed.
Mr Pamata, along with another Samoan man Mr Lealaogata, was in the car park outside the bar. There, announcing he was Black Power, he challenged one of two Mongrel Mob members to a fight – one-on-one.
When Mr Pamata started getting the better of the fight the second Mongrel Mob man joined in to make it a cowardly two-on-one fight.
While this was happening, the appellant and another woman attacked Mr Lealaogata in order to prevent him coming to Mr Pamata’s assistance. One of the women ‘bottled’ Mr Lealaogata in the side of the head, and then they chased him away throwing bottles at him.
Mr Pamata was overpowered by the two Mongrel Mob assailants and knocked to the ground, unconscious.
The appellant then joined in, stomping on Mr Pamata’s head several times while he lay unconscious on the ground. She came back a second time and kicked him some more.
Mr Pamata suffered serious injuries, some of which may be permanent. They include fractures to the bones…

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: [2013] NZCA 293
Decision Date: 10 July 2013 at 10.30 am

CaseChat Overview and Summary

The appeal against conviction and sentence by Minette Chanel Tahitangatatarei was dismissed by the Court of Appeal of New Zealand. The appeal arose from Tahitangatatarei's conviction of wounding a man with intent to cause grievous bodily harm and her subsequent guilty plea for assault with intent to injure. Tahitangatatarei appealed both her conviction and sentence. The court first considered the appellant's arguments that the photo montage identification of her was wrongly admitted and that the verdict on the grievous bodily harm charge was unreasonable. The court found that the photo montage identification was conducted as soon as practicable and that the evidence sufficiently supported the guilty verdict. The court then considered the appellant's arguments that the sentencing starting point was too high and that a further discount should have been given for the fact that the victim had initiated the fight. The court found that the sentencing starting point was within the available range and that the appellant's role in the more serious injuries inflicted by the men warranted a higher sentence. The appeal was dismissed.

The Court of Appeal of New Zealand dismissed Minette Chanel Tahitangatatarei's appeal against conviction and sentence. Tahitangatatarei had been convicted of wounding a man with intent to cause grievous bodily harm and subsequently pleaded guilty to an assault charge. The court considered the appellant's arguments that the photo montage identification was wrongly admitted and that the verdict on the grievous bodily harm charge was unreasonable. The court found that the photo montage identification was conducted as soon as practicable and that the evidence sufficiently supported the guilty verdict. The court then considered the appellant's arguments that the sentencing starting point was too high and that a further discount should have been given for the fact that the victim had initiated the fight. The court found that the sentencing starting point was within the available range and that the appellant's role in the more serious injuries inflicted by the men warranted a higher sentence. The appeal was dismissed.

Orders