Mr Te Aho applies for an extension of time for filing his appeal and challenges the sentence imposed upon him in the Napier District Court. He appeals on the ground that the period he would have to serve in prison for his offending is more than it should be, because he will not be credited for all the time he spent in custody on remand prior to sentence.
Mr Te Aho, who was 48 at the time of his offending, was in a relationship with the female complainant. She was some 18 years his junior.
On 17 November 2010, following an argument, he forced her to go with him on a motorbike and in a car. There were a series of assaults on her involving verbal abuse and threats, hair pulling, a hard punch and pinching. He drove her to premises in Napier where he had organised a person to have sex with her while he listened on the phone. The complainant alerted the manager of the premises, complaining about what was happening, and the Police were called. The Police arrived just as Mr Te Aho was leaving. As a result of the events of the day, the female complainant had received grazes to the left side of her head and cuts to her right hamstring area.
The following morning, knowing that the Police had been called, Mr Te Aho sent text messages to the manager who had called the Police, threatening him and his establishment.
Mr Te Aho was charged with unlawfully detaining a person with her consent obtained by duress and with intent to cause her to have sexual connection with another, male assaults female, and threatening to do grievous bodily harm. He was in due course remanded in custody. While in custody, he engaged in what was described by the sentencing Judge as a “persistent campaign” of pursuing persons to give evidence for him that would assist him in the pending court proceedings.[1] Following extensive contact with the female complainant and other potential witnesses designed to ensure that evidence was presented to the Police that would secure his discharge or acquittal, there were indeed affidavits filed from the complainant and other Police witnesses containing information that was entirely different from that which they had originally supplied to the Police. He was charged subsequently with willfully attempting to pervert the course of justice.
[1]R v Te Aho DC Napier CRI-2011-016-405, 1 May 2012 at [6].
Mr Te Aho has an extensive record. It runs to 15 pages of…
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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AGLC
Te Aho v R [2013] NZCA 47
Case
[2013] NZCA 47
Decision Date
CaseChat Overview and Summary
The Court of Appeal of New Zealand was presented with an appeal from George Ratu Te Aho, who sought an extension of time for filing his appeal and challenged the sentence imposed upon him in the Napier District Court. Te Aho's primary contention was that his sentence did not adequately credit him for the time he had spent in custody on remand prior to sentencing, resulting in a longer prison term than warranted. The appeal hinged on the interpretation of the Parole Act 2002 and the Sentencing Act 2002, specifically how pre-sentence detention is calculated and credited against the sentence imposed.
The legal issues revolved around the interpretation of sections 90 and 82 of the Parole Act 2002 and section 82 of the Sentencing Act 2002. Te Aho argued that the calculation by the Department of Corrections, which did not credit him for the full time spent in remand, was erroneous and amounted to a miscarriage of justice. He suggested alternative sentencing options that would ensure full credit for his remand time. The Crown argued that the statutory framework clearly places the responsibility for calculating pre-sentence detention with the Department of Corrections and not the sentencing courts, and that the sentencing process followed by Judge Rea was correct and fair.
The Court of Appeal found that the statutory scheme in the Parole Act 2002 and the Sentencing Act 2002 explicitly places the responsibility for calculating and crediting pre-sentence detention with the Department of Corrections, not the sentencing courts. The Court acknowledged that while the sentencing court could consider pre-sentence detention in limited circumstances, such as when it has a disproportionately severe effect on the offender or when the offender is recalled to prison, these exceptions did not apply to the present case. The Court also noted that the sentencing process followed by Judge Rea was transparent, principled, and fair, and there was no basis to intervene under the grounds provided in section 385 of the Crimes Act 1961. The Court thus dismissed the appeal.
The final orders of the Court were to grant the appellant's application for an order extending time for filing his appeal and to dismiss the appeal itself.