Tamakaha v Police - [2019] NZHC 2838

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2019-463-91

[2019] NZHC 2838

IN THE MATTER of an appeal against sentence

BETWEEN

MICHAEL JAY WILLIAM

REREWAOTERANGI TAMAKAHA
Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 31 October 2019

Counsel:

B Hall for appellant

AJ Pollett and EF Collis for respondent

Judgment:

1 November 2019

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 1 November 2019 at 4 pm

Registrar/Deputy Registrar

Date……………

Solicitors: Pollett Legal Ltd, Rotorua To: B Hall, Tauranga

Tamakaha v New Zealand Police [2019] NZHC 2838 [1 November 2019]

[1] Mr Tamakaha appeals his sentence of two years, five months’ imprisonment in relation to one charge of assault with intent to injure and one charge of injuring with intent to injure.1 Both charges relate to offending against the same victim, who he has been in an on-again off-again relationship with for around 20 years.

Offending

[2] The offending took place in two incidents; the August 2018 offending giving rise to a charge of assault with intent to injure,2 and the November 2018 offending giving rise to a charge of injuring with intent to injure.3 The Crown initially laid an additional charge of assault with a weapon in relation to the November offending, but it was not proceeded with and the charge was dismissed at sentencing.4

August offending

[3] On the morning of 29 August 2018, Mr Tamakaha, the victim, and the victim’s seven-year-old son were at a caravan occupied by Mr Tamakaha. Mr Tamakaha and the victim had an argument regarding comments Mr Tamakaha had made to the victim’s son. During this argument, Mr Tamakaha became angry when the victim informed him she would not make him breakfast.

[4] Mr Tamakaha grabbed the victim and punched her a couple of times in the right shoulder area using a closed fist. Although she told him to stop he proceeded to use his fingers to try and gouge her eyes, then grabbed her jaw and squeezed it. While he was squeezing her jaw, he slid his hand down and placed it on her neck.

[5] Mr Tamakaha then told the victim to leave the address and after she picked up her belongings, grabbed her and pushed her outside. As the victim went to gather more belongings from a shed he followed her and pushed her again. As she walked out of the gate near the caravan Mr Tamakaha came at her holding a chilly bin lid in the air, although did not strike her with it.

1      R v Tamakaha [2019] NZDC 18889.
2      Crimes Act 1961, s 193. Maximum penalty three years’ imprisonment.
3      Section 189(2). Maximum penalty five years’ imprisonment.
4      R v Tamakaha, above n 1, at [1].

[6] The victim suffered bruising to her left eye, a sore right shoulder, and a red mark on the side of her neck.

November offending

[7] On 19 November 2018, the victim was at Mr Tamakaha’s father’s…

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: [2019] NZHC 2838
Decision Date: 1 November 2019

CaseChat Overview and Summary

In the case of Tamakaha v Police, the High Court of New Zealand considered an appeal against the sentence of Michael Jay William Rerewaoterangi Tamakaha, who was sentenced to two years and five months' imprisonment for charges of assault with intent to injure and injuring with intent to injure. The offending involved two separate incidents of violence against the same victim, with whom Tamakaha had been in an on-again off-again relationship for approximately 20 years. The court was required to determine whether the sentence imposed was manifestly excessive, taking into account the start point, discounts for personal mitigating factors, and the overall appropriateness of the sentence.

The court found that the District Court judge's start point of three years for the November 2018 offending was too high. The court considered that the offending, while serious, did not warrant a start point at the top of band two, and instead found a start point of two years and six months to be more appropriate. The court also found that the District Court judge had awarded an insufficient discount for Tamakaha's time spent on restrictive bail conditions and personal mitigating factors, and should have awarded a six-month discount in total. The court, however, did not find a separate discount for remorse to be warranted in this case.

Taking these factors into account, the court determined that a sentence of two years' imprisonment, with leave to apply for cancellation of this sentence and substitution of a sentence of home detention, would be an appropriate outcome. The appeal was allowed, and the original sentence was quashed and replaced with the new sentence.

In summary, the court found that the original sentence was manifestly excessive, due to an inappropriate start point and insufficient discounts for personal mitigating factors. The court's reasoning was based on a thorough evaluation of the relevant sentencing principles and comparable cases, and the outcome reflects the principles to be taken into account on sentencing in this case, including deterrence, denunciation, and the potential for rehabilitation.

Orders