Tawhai v The King - [2023] NZCA 444

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA229/2022
[2023] NZCA 444

BETWEEN	WILLIAM TAWHAI Appellant
AND	THE KING Respondent

Hearing:	18 July 2023
Court:	Gilbert, Lang and Woolford JJ
Counsel:	A C Cresswell for Appellant M J Lillico for Respondent
Judgment:	14 September 2023 at 9.30 am

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe sentence of preventive detention with a minimum period of imprisonment of five years is set aside. A sentence of three years’ imprisonment with a minimum period of imprisonment of two years is substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

Mr Tawhai, now aged 56, pleaded guilty to two charges of assault on a person in a family relationship (his former partner) and one charge of wounding with intent to injure her. Peters J considered that the appropriate finite sentence for this offending would be three years’ imprisonment with a two-year minimum period of imprisonment (MPI).[1] However, the Judge concluded that in order to protect the community from Mr Tawhai a sentence of preventive detention should be imposed with an MPI of five years.[2]
[1] R v Tawhai [2022] NZHC 998 [Sentencing judgment] at [38]–[39].
[2]At [84].
Mr Tawhai now appeals against his sentence.

The facts

The Judge summarised the facts of the offending as follows:
[6]       … At about 7 pm on 8 November 2020, [Mr Tawhai] and [the complainant] were in her car. [Mr Tawhai and the complainant] had been in a relationship for about a year, but apparently had recently separated. [Mr Tawhai was] driving, and [he] asked [the complainant] to go for a walk to talk about [their] relationship and why it had cooled. [The complainant] did not wish to and asked to be driven home.
[7]       Unhappy with this response, [Mr Tawhai] drove off at speed. [The complainant] asked to get out but [Mr Tawhai] began punching her arms and shoulders whilst [he was] driving. [Mr Tawhai] also began abusing [the complainant] verbally. When she tried to get out of the car, [Mr Tawhai] grabbed her clothing, around the neck, to stop her.
[8]       [Mr Tawhai] then drove on and parked and dragged [the complainant] out of the car. When she managed to get back into the car, [Mr Tawhai] leaned in and punched her repeatedly in the face with a clenched fist, at least six or seven times. [Mr Tawhai] did this with such force that one of her teeth fell out. When she again tried to get out of the car, [Mr Tawhai] grabbed her by her hair and pulled her out. Eventually [Mr Tawhai] stopped [his] attack and drove [the complainant] home.
[9]       The result of all of this physical violence was that [the complainant] lost a tooth and, in her victim impact statement, she says that several of her top teeth were pushed up into her gums and she is having ongoing dental treatment. She was terrified, her right eye socket and left finger were fractured,…

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.

Continue reading Tawhai v The King

Details

AGLC: Tawhai v The King [2023] NZCA 444
Case: [2023] NZCA 444
Decision Date: 14 September 2023 at 9.30 am

CaseChat Overview and Summary

William Tawhai appeals against the sentence imposed on him by the High Court at Whangarei. Tawhai pleaded guilty to charges of assault on a person in a family relationship and wounding with intent to injure the complainant. The Court of Appeal considered whether the High Court erred in imposing a sentence of preventive detention with a minimum period of imprisonment (MPI) of five years, rather than a finite sentence of three years with a two-year MPI. The appeal raises issues concerning the appropriate sentence to protect the community from Tawhai and whether the High Court erred in rejecting the imposition of an Extended Supervision Order (ESO) as an alternative to preventive detention.

The Court of Appeal held that the High Court erred in imposing preventive detention. The Judge was concerned that Tawhai would not engage in rehabilitative treatment if a finite sentence was imposed. However, the experts' reports indicated that Tawhai is willing to engage in appropriate treatment and is likely to do so. The Judge did not give sufficient consideration to the prospect that an ESO could provide adequate protection for the community. The potential scope and nature of the conditions that can be imposed with an ESO suggests that it could adequately mitigate the risk Tawhai poses, assuming this risk remains sufficiently elevated to justify an ESO at the time of his release after serving a finite sentence. Given the limited evidence available, it is not clear why this less restrictive outcome must be rejected in favour of an indeterminate sentence.

Accordingly, the appeal is allowed. The sentence of preventive detention with an MPI of five years is set aside. A sentence of three years’ imprisonment with an MPI of two years is substituted.

Orders