Te Ao v The King - [2023] NZCA 327

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA35/2023
[2023] NZCA 327

BETWEEN	MAHUTA TE AO Appellant
AND	THE KING Respondent

CA42/2023
BETWEEN	DESMOND PARATA Appellant
AND	THE KING Respondent

Hearing:	13 June 2023
Court:	Wylie, Thomas and Brewer JJ
Counsel:	A J D Bamford for Appellant in CA35/2023 E J Riddell for Appellant in CA42/2023 J M Webber for Respondent
Judgment:	27 July 2023 at 10 am

JUDGMENT OF THE COURT

A Mr Te Ao’s appeal against sentence is dismissed.
B Mr Parata’s appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brewer J)

Introduction

Mr Te Ao and Mr Parata each pleaded guilty to two charges of aggravated robbery.[1] On 16 December 2022, McQueen J sentenced Mr Te Ao to two years and four months’ imprisonment and Mr Parata to two years and two months’ imprisonment.[2] They now appeal their sentences. They contend they are manifestly excessive.
[1]Crimes Act 1961, s 235(b) — maximum penalty 14 years’ imprisonment.
[2]R v Parata [2022] NZHC 3503.
A first appeal court must allow an appeal against sentence if it is satisfied that there is an error in the sentence and a different sentence should be imposed.[3] A manifestly excessive sentence is an error which will result in the appeal court imposing a different sentence.

Background

[3]Criminal Procedure Act 2011, s 250.

Mr Te Ao and Mr Parata were sentenced with a third offender, Mr Thompson. We reproduce McQueen J’s summary of their offending:
[4] All three of you were known to the flatmates of the victim. On an earlier visit to one of those flatmates at the property, about a month before the offending, Mr Thompson and Mr Te Ao, you acted to intimidate the victim at the property. By coincidence, the police attended the property to speak with the victim’s flatmate. However, Mr Te Ao, you believed the victim had called the police on you.
[5] On 25 July 2020, Mr Te Ao and Mr Parata, you went to the flat with the purpose of visiting another of the victim’s flatmates known to you. You sat in the lounge with the victim, and both smoked some methamphetamine with his flatmate. During this time, Mr Te Ao, you became agitated. You started to insult and berate the victim, particularly for “calling the police” on you during your last visit. You told the victim he now owed you $100 as compensation. During this time, Mr Parata, you took out a black BB gun (being an imitation firearm) from an inside jacket pocket and gestured towards the victim in a shooting motion, saying “pow pow”. Mr Te Ao, you continued to threaten the victim that he would be shot or you would cut his throat if he went to the police again. You said you would take his cellphone as collateral, returning it only once the $100 was paid. The victim believed he would be seriously harmed or killed if he did…

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 Te Ao v The King

Details

AGLC: Te Ao v The King [2023] NZCA 327
Case: [2023] NZCA 327
Decision Date: 27 July 2023 at 10 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered appeals from Mahuta Te Ao and Desmond Parata, who were sentenced to two years and four months and two years and two months imprisonment, respectively, for aggravated robbery. Both appellants argued their sentences were manifestly excessive, particularly regarding the reduction for time spent on bail. Te Ao spent around 12 months on bail under a 24-hour curfew, which was later reduced to 7 pm to 7 am. Parata spent almost 13 months on electronically monitored bail with various authorized absences. The court found that while the appellants might have been entitled to greater discounts for time spent on bail, the end sentences were within the range available to the sentencing judge and not manifestly excessive. The court held that for a sentence to be manifestly excessive, it must be beyond the upper end of the range available to the sentencing judge and significantly more severe than it should have been. In this case, the end sentences were within the appropriate range, and thus, both appeals were dismissed.

Orders