Legal Research
Cases
Te Hau v R

Te Hau v R

Case [2013] NZCA 431 17 September 2013

Type to search within this case.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA148/2013
[2013] NZCA 431

BETWEEN	JASON WAYNE TE HAU Appellant
AND	THE QUEEN Respondent

Hearing:	14 August 2013 (further submissions received 3 September 2013)
Court:	Ellen France, Rodney Hansen and Mallon JJ
Counsel:	M J Phelps for Appellant M J Inwood for Respondent
Judgment:	17 September 2013 at 10 am

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed.
BThe sentence of three years’ imprisonment is quashed. It is replaced with a sentence of two years and six months’ imprisonment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Mallon J)

Introduction

Mr Te Hau appeals against his sentence of three years’ imprisonment for an aggravated robbery on the ground that it is manifestly excessive. The District Court Judge (Judge Adeane) reached this end sentence by adopting a three year starting point, uplifting the sentence by six months to reflect Mr Te Hau’s previous convictions, and then reducing the sentence by six months for Mr Te Hau’s guilty plea.[1] The end sentence is said to be manifestly excessive because the discount for the guilty plea (14.29 per cent) is inadequate. During the appeal hearing the appropriateness of a six month uplift for Mr Te Hau’s previous offending was also raised. Further submissions were filed on this aspect.
[1]R v Te Hau DC Napier CRI-2012-081-143, 1 March 2013.
For the reasons which follow, we consider the discount for the guilty plea was at the low end of the available range, but the uplift for previous convictions was too high. As a result the end sentence was manifestly excessive. We quash the sentence of three years’ imprisonment and replace it with a sentence of two years and six months’ imprisonment.

The background

The offending

The incident giving rise to the aggravated robbery charge began when the victim lost control of his vehicle and hit a fence belonging to a local marae. Some weeks later, on the morning of 30 October 2009, Mr Te Hau and his alleged co‑offender, Mr Eriha, went to the victim’s home. The victim answered a knock on his door and was confronted by Mr Eriha. Mr Eriha said he wanted to speak to the victim about a debt he owed to the Mongrel Mob. They moved outside because there was a two year old child in the house, whereupon Mr Eriha punched the victim twice in the face.
At this point Mr Te Hau walked around the corner of the house. Mr Eriha demanded $1,500 from the victim. The victim said that he did not have that. Mr Eriha and Mr Te Hau then went into the victim’s house. They took a laptop computer from the victim’s bedroom and the keys to his vehicle. Mr Te Hau told the victim that he had better come up with the money or he would kill him and his parents. Mr Te Hau also threatened to kill him if he called the police. Mr Te Hau and Mr Eriha left with the laptop…

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 Hau v R

Details

AGLC: Te Hau v R [2013] NZCA 431
Case: [2013] NZCA 431
Decision Date: 17 September 2013 at 10 am

CaseChat Overview and Summary

Jason Wayne Te Hau appeals against his sentence of three years' imprisonment for aggravated robbery, arguing it is manifestly excessive. The Court of Appeal, consisting of Ellen France, Rodney Hansen, and Mallon JJ, reviewed the appeal. The key issue was whether the discount for Te Hau's guilty plea was adequate, and whether the six-month uplift for his previous convictions was appropriate. The Crown argued that the discount was sufficient given the strength of the case against Te Hau, while Te Hau contended that a greater discount was warranted due to the early plea and its benefits. Regarding the uplift for previous convictions, the Crown submitted that it was necessary to emphasise deterrence, whereas Te Hau argued that no uplift was warranted given the time elapsed since his last similar offence.

The Court found that the discount for the guilty plea was at the lower end of the acceptable range, but the six-month uplift for previous convictions was excessive. The uplift, which represented 16.7% of the sentence, was deemed disproportionate to the starting point of three years. Consequently, the end sentence of three years' imprisonment was considered manifestly excessive. The Court of Appeal replaced the sentence with two years and six months' imprisonment, considering that a discount of around 15% for the guilty plea, combined with no uplift for previous convictions, would yield a more proportionate sentence.

The final orders of the Court of Appeal were to quash the original sentence of three years' imprisonment and to replace it with a sentence of two years and six months' imprisonment.

Orders