Te Hau v Police - [2021] NZHC 948

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2021-463-27

[2021] NZHC 948

BETWEEN
PETER TE HAU

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 29 April 2021

Appearances:

S R Lack for the Appellant

G Banuelos for the Respondent

Judgment:

30 April 2021

JUDGMENT OF GAULT J

This judgment is delivered by me on 30 April 2021 at 11:00 am

.....................................................
Registrar / Deputy Registrar

Solicitors / Counsel:
Mr S R Lack, Barrister, Auckland
G Banuelos, Gordon Pilditch, Office of the Crown Solicitor, Rotorua

TE HAU v NEW ZEALAND POLICE [2021] NZHC 948 [30 April 2021]

[1] Mr Te Hau appeals against his sentence of three years and ten months’ imprisonment imposed by Judge A J S Snell in the Rotorua District Court on 22 December 2020,1 following convictions for:

(a)one charge of impeding breathing (strangulation or suffocation);2
(b)one charge of injuring with intent to injure;3 and
(c)one charge of common assault.4

[2] Mr Te Hau pleaded guilty to the last charge, but contested the first two and was convicted after a judge-alone trial.

[3]Mr Te Hau appeals the sentence on the following grounds:

(a)the starting point of three years and six months’ imprisonment for the lead offending (the first two charges) was too high;

(b)the uplift of six months for the assault was excessive and failed properly to take into account the principle of totality;

(c)the uplift of four months applied to reflect Mr Te Hau’s previous convictions and the fact that his offending occurred whilst subject to a sentence resulted in double counting of an aggravating factor, and served to unfairly repenalise him for prior offending; and

(d)the end sentence of three years and ten months’ imprisonment was manifestly excessive.

1      Police v Te Hau [2020] NZDC 26904.
2      Crimes Act 1961, s 189A(b). Maximum penalty seven years’ imprisonment.
3      Crimes Act 1961, s 189. Maximum penalty five years’ imprisonment.
4      Crimes Act 1961, s 196. Maximum penalty one year’s imprisonment.

The offending

Assault

[4] On 27 January 2020 at about 2 am, Mr Te Hau was at a bar in Rotorua. The victim, a bar tender, was busy serving a customer and Mr Te Hau became frustrated at not being served. The victim tried to reassure him saying she wouldn’t be long. He yelled “fuck you, you fuckin bitch” then walked away and attempted to be served by a different bartender. The victim informed her colleague not to serve Mr Te Hau. This angered him and as the victim walked away, he lobbed a small wooden sign into the bar area striking and cutting her head, causing it to bleed. He then ran off. The victim suffered the laceration to the side of her head, and swelling/tenderness in the area.

Impeding breathing and injuring with intent to injure

[5] On 9 February 2020 at about 9.30 pm, after Mr Te Hau was with his partner of approximately four months. Mr Te Hau had been drinking with an associate…

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: [2021] NZHC 948
Decision Date: 30 April 2021

CaseChat Overview and Summary

Mr Te Hau appealed against his sentence of three years and ten months’ imprisonment imposed by the Rotorua District Court following his convictions for impeding breathing (strangulation or suffocation), injuring with intent to injure, and common assault. He appealed the sentence on the grounds that the starting point of three years and six months’ imprisonment for the lead offending was too high, the uplift of six months for the assault was excessive and failed properly to take into account the principle of totality, the uplift of four months applied to reflect Mr Te Hau’s previous convictions and the fact that his offending occurred whilst subject to a sentence resulted in double counting of an aggravating factor, and served to unfairly repenalise him for prior offending, and the end sentence of three years and ten months’ imprisonment was manifestly excessive.

The court found that the starting point for the strangulation and injuring with intent to injure charges of three and a half years’ imprisonment was not excessive. The six-month uplift for the assault was at the high end of the appropriate range given totality, but overall, the adjusted starting point was not excessive. The combined uplift for Mr Te Hau’s conviction history and the fact that his offending took place while he was on home detention was high, but the overall sentence was not manifestly excessive even if the uplifts could have been lower by a total of two or three months. The appeal was dismissed.

Orders