Taingahue v Police - [2015] NZHC 1688

NOTE: PURSUANT TO S 125 OF THE DOMESTIC VIOLENCE ACT 1995, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO
11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2015-442-14 [2015] NZHC 1688

BETWEEN
TAU TAINGAHUE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 21 July 2015

Counsel:

I D Miller for Appellant
E J Riddell for Respondent

Judgment:

21 July 2015

JUDGMENT OF ELLIS J

I direct that the delivery time of this judgment is
4 pm on the 21st day of July 2015

Solicitors: City Legal, Nelson, for Appellant
Crown Solicitor, Nelson, for Respondent

TAINGAHUE v NEW ZEALAND POLICE [2015] NZHC 1688 [21 July 2015]

[1] Mr Taingahue appeals against the sentence imposed upon him following his pleas of guilty to one charge of assault with intent to injure1 and one charge of breaching a protection order by committing acts of violence against a protected person.2 Both charges relate to an incident in the early hours of 22 April 2015, when he assaulted his former partner.

[2] The Police summary of facts describes the assault in the following terms:

The Defendant slammed the Victim onto the bed and punched her in the face multiple times. He kicked her repeatedly around her chest and hip area. He continued to beat her viciously for 10 to 15 minutes while stating that the Victim deserved it. The Victim escaped the house and waved down a passing motorist before reporting the incident to Police. The Victim received severe bruising to the face, back and sides. She was visibly struggling to walk. She was taken to Nelson Hospital to receive treatment.

[3] For reasons that will become apparent it is relevant to note at the outset that:

(a) On 3 April 2013 Mr Taingahue was convicted of a charge of assault with intent to injure and sentenced to 11 months’ imprisonment. The complainant was his (now former) partner;

(b)On 2 December 2014 Mr Taingahue was convicted on charges of male assaults female and common assault and sentenced to six months’ supervision and 240 hours community work. Again, the complainant was his former partner.

Sentencing in the District Court

[4] Judge Zohrab sentenced Mr Taingahue to 21 months’ imprisonment, on

26 May 2015.3

[5] In reaching that end sentence, the Judge:

1      Crimes Act 1961, s 193. Maximum penalty three years’ imprisonment.
2      Domestic Violence Act 1995, s 19, s 49(1)(a) and s 49(3). Maximum penalty three years’
imprisonment.
3      Police v Taingahue [2015] NZDC 9559.

(a) adopted a starting point of 16 months’ imprisonment on the assault

with intent to injure charge;4

(b) added six months’ imprisonment for the breach of protection order

charge;

(c) subtracted two months for totality;

(d) uplifted by six months to reflect Mr Taingahue’s prior offending;

(e) gave a discount of five months for the early guilty plea.

Grounds of appeal

[6] For Mr Taingahue, Mr Miller raised two grounds of appeal. Essentially he…

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: [2015] NZHC 1688
Decision Date: 21 July 2015

CaseChat Overview and Summary

Mr Taingahue appealed against his sentence following his guilty pleas to charges of assault with intent to injure and breaching a protection order. Both charges related to an incident where Mr Taingahue assaulted his former partner, causing her severe injuries. The District Court sentenced Mr Taingahue to 21 months' imprisonment. Mr Taingahue argued that the uplift for prior convictions was excessive and that he should have received a full 25% discount for pleading guilty at the first opportunity.

The High Court considered whether the end sentence was within the available range, rather than the process by which it was reached. The Court found that the six-month uplift for previous offending was warranted due to Mr Taingahue's recent convictions for violence against the same victim, his likelihood to reoffend, and the need for deterrence. The Court also rejected the argument that a full 25% discount should have been afforded for the early guilty plea. The appeal was dismissed, and the sentence upheld as not manifestly excessive.

Orders