Tawhiao v Police - [2014] NZHC 1142

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-54 [2014] NZHC 1142

BETWEEN
KAYLA WAIMARIA TAWHIAO

Appellant

AND

POLICE Respondent

Hearing: 19 May 2014

Appearances:

P Stokes for Appellant
W Potter and N Walker for Respondent

Judgment:

27 May 2014

JUDGMENT OF COOPER J

This judgment was delivered by Justice Cooper on
27 May 2014 at 4.45 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:

Public Defence Service, Auckland
Meredith Connell, Crown Solicitors, Auckland

TAWHIAO v POLICE [2014] NZHC 1142 [27 May 2014]

[1] Ms Tawhiao pleaded guilty to 12 different charges that arose from six separate incidents that took place between September and December 2013. The offences included a range of assaults, including assaulting the police and members of the public, disorderly behaviour, resisting the police and fighting in public.

[2] The guilty pleas followed discussions with police, and the amendment of some of the charges. The guilty pleas were entered at the first opportunity after the amendment of the charges

[3] Judge Ronayne sentenced her to an effective term of 19 months’

imprisonment. She now appeals against that sentence.

[4] It is convenient to describe the background facts to each of the charges by grouping them into the six different incidents.

Fiddler Bar incident

[5] The first two charges (which I will call charges 1 and 2) arose from an incident that occurred at licensed premises called “Fiddler Bar” in central Auckland. She was asked by staff at the entrance to provide identification. She refused to do so, swore and walked into the bar. Police were called and two constables arrived and spoke to her. They told her she was under arrest for an unrelated matter. She then tried to push past the police, biting one of them as she did so. She also kicked the constables, began to spit at them repeatedly, and swore at them. As she was taken to a waiting police car she resisted them.

[6] As a result of this incident the appellant faced two charges of common assault under s 9 of the Summary Offences Act 1981. The Judge sentenced her to one month concurrent terms on each charge.

Countdown wine incident

[7] Two days later, on 6 September, the appellant went to Countdown on Victoria Street, Auckland. Although the duty manager asked her to leave at the entrance, the defendant walked past him, picked up a cask of wine and made her way to the check-

out. She walked through the check-out area, making no attempt to pay for the wine. The wine was valued at $26.99.

[8] Later that evening she was found by police and arrested. A struggle ensued in which she was described as “lashing out with her arms and legs” and refusing to let the police handcuff her. She was eventually physically restrained and handcuffed.

[9] Two charges arose from that incident (charges 3 and 4). One was theft (under

$500), under ss 219 and 223(d) of the Crimes Act…

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 1142
Decision Date: 27 May 2014

CaseChat Overview and Summary

The case of Tawhiao v Police involved an appeal against the sentence imposed by Judge Ronayne on Ms Kayla Waimaria Tawhiao. Ms Tawhiao had pleaded guilty to twelve charges arising from six separate incidents of assault, theft, resisting the police, and fighting in public. The court was required to determine whether the sentence of 19 months' imprisonment was appropriate given the totality of the offending and the relevant sentencing principles. The court considered arguments from both parties on whether the sentence was disproportionate and whether concurrent sentences should have been imposed instead of cumulative sentences. The High Court found that the sentence of 19 months was too severe given the low-level nature of most of the offending. The court concluded that a sentence of 13 months' imprisonment, combining both cumulative and concurrent sentences, would be more appropriate. The court allowed the appeal and substituted the sentence imposed by the District Court with a sentence of 13 months' imprisonment, with certain charges resulting in conviction and discharge.

The final orders of the court were to allow the appeal and substitute the sentences imposed by the District Court with the following: (a) Eight months' imprisonment on the charge of common assault; (b) Five months' imprisonment on the charge of assault on a constable, cumulative on the previous sentence; (c) Two months' imprisonment on the charge of resisting the police, to be served concurrently; and (d) One month's imprisonment on the remaining charges, to be served concurrently. The appellant remained convicted and discharged on certain other charges.

Orders