Takerei v Police - [2014] NZHC 3360

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2014-443-032 [2014] NZHC 3360

DARRYL HOTU TAKEREI

v

NEW ZEALAND POLICE

Hearing: 16 December 2014

Appearances:

B Sweetman for the Crown
J Woodcock for the Crown

Judgment:

16 December 2014

JUDGMENT OF THOMAS J

Solicitors:
C&M Legal, New Plymouth.

Counsel:
J Woodcock, New Plymouth.

TAKEREI v NEW ZEALAND POLICE [2014] NZHC 3360 [16 December 2014]

Introduction

[1] On 11 November 2014 Mr Darryl Takerei was sentenced at the New Plymouth District Court to two years’ imprisonment on one charge of injuring with intent to injure and a concurrent sentence of one year’s imprisonment for assault with intent to injure. Mr Takerei was also convicted and discharged for one count of carelessly using a motor vehicle causing injury.

[2] Mr Takerei appeals against his sentence of imprisonment as being manifestly excessive. He submits that home detention was an appropriate sentence.

Background facts

[3] On 28 September 2014 at 1.35 am, Mr Takerei and another were drinking in bars in town. Mr Takerei made a comment to one victim about a tattoo. A verbal altercation followed. In an attempt to prevent a fight, the victim of the injuring with intent to injure, Mr Larsen, stood between Mr Takerei and the victim of the assault with intent to injure, Mr Stewart.

[4] Mr Takerei delivered two punches, both of which connected with Mr Larsen’s face and jaw. Mr Larsen was rendered unconscious and fell backward onto the pavement. He was unconscious before he hit the ground and had no opportunity to break his fall.

[5] Mr Takerei then threw punches at Mr Stewart. A struggle occurred and Mr Takerei and Mr Stewart ended up on the ground. Mr Takerei’s associate joined in the attack.

[6] Mr Takerei got to his feet and kicked Mr Stewart in the head and face, before continuing to throw punches. Mr Stewart got to his feet and was pushed back to the ground. Mr Takerei walked off with his associate and they high fived one another.

[7] Mr Larsen was unconscious for five minutes. He was taken to hospital, where he underwent a CT scan. He did not sustain a brain injury.

District Court sentencing

[8] The Judge canvassed the pre-sentence report, which recommends a sentence of community detention, community work and reparation. The Judge considered that Mr Takarei had a real problem with alcohol, that he presented as remorseful and had made an offer of reparation.

[9] The Judge considered that it was to Mr Takarei’s credit that he had been employed by a business and worked in New Plymouth for a number of years. He noted that the report writer mentioned that community detention would enable him to retain his employment.

[10] The Judge then considered the victim impact statements, and noted that one victim had to take time off work and that the offending had precipitated a relapse of his depression. The second victim did not suffer any injuries except for a minor graze.

[11]…

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: [2014] NZHC 3360
Decision Date: 16 December 2014

CaseChat Overview and Summary

Darryl Hotu Takerei appeals against his sentence of imprisonment as being manifestly excessive, submitting that home detention was an appropriate sentence. Takerei was convicted of injuring with intent to injure, assault with intent to injure and careless use of a motor vehicle causing injury. Takerei and an associate were drinking in bars in town when Takerei made a comment to one of the victims about a tattoo. A verbal altercation followed, and Takerei punched one of the victims, Mr Larsen, in the face, knocking him unconscious. Takerei then threw punches at the other victim, Mr Stewart. A struggle occurred, and Takerei kicked Mr Stewart in the head and face before walking off with his associate. The sentencing Judge considered the pre-sentence report, which recommended a sentence of community detention, community work, and reparation. The Judge considered the aggravating factors of extreme violence, serious injury, premeditation, and multiple attackers. The Judge considered the appropriate starting point on the lead charge to be two years' imprisonment, uplifted by eight months for the assault with intent to injure charge, and discounted by eight months for an early guilty plea. The final sentence was therefore two years' imprisonment on the charge of injuring with intent to injure and 12 months' imprisonment to be served concurrently on the assault with intent charge. The Judge then stated that he would not allow home detention for the following reasons: the offending is serious, to sentence Takerei otherwise would send the wrong message, Takerei has really learnt nothing, and it was pivotal that Takerei was not deterred by his previous sentence. Takerei contends that the starting point of two years was manifestly excessive and that the violence involved cannot be considered prolonged. The Crown submits that while the methodology of the sentencing Judge might be open to some criticism, the end result cannot be considered manifestly excessive. The court is satisfied that the two year starting point was well within range, as was the uplift of eight months. The court is also satisfied that a discount to recognise Takerei's remorse of five per cent would have been justified, and that a full 25 per cent discount in respect of the guilty plea would have been appropriate. The court is not satisfied that the Judge considered the question of home detention adequately, and is satisfied that home detention should have been imposed. The court allows Takerei's appeal, quashes his term of imprisonment, imposes a sentence of eight months' home detention and 120 hours of community work, and attaches special conditions to the home detention.

Orders