Te Hira v The Queen - [2011] NZCA 599

IN THE COURT OF APPEAL OF NEW ZEALAND

CA254/2011
CA649/2011
[2011] NZCA 599

BETWEEN ISAIAH JOHN TE HIRA
Appellant

AND THE QUEEN
Respondent

Hearing: 7 November 2011

Court: Wild, Chisholm and Potter JJ

Counsel: L O Smith for Appellant
K Raftery and M Davie for Respondent

Judgment: 30 November 2011 at 10.00 am

JUDGMENT OF THE COURT

AThe application to reinstate the appeal against conviction on the aggravated robbery charge is dismissed.

B The appeal against sentence is also dismissed.

____________________________________________________________________

REASONS OF THE COURT
(Given by Wild J)

Introduction

Mr Te Hira appeals against sentences totalling eight years imprisonment imposed on him by Judge Blackie in the Manukau District Court on 25 March 2011.[1]
[1] R v Te Hira DC Manukau CRI-2011-092-1610, 25 March 2011.
Mr Te Hira also seeks to reinstate an appeal against conviction which he previously abandoned. That attempt is directed only to Mr Te Hira’s conviction on the most serious crime, aggravated robbery. A difficulty he faces is that he pleaded guilty to that charge, along with all the other charges on which he was sentenced.
Mr Te Hira’s appeal against sentence was filed about a week out of time. An extension of time was granted by Stevens J on 14 July 2011.

The crimes

When sentencing Mr Te Hira, Judge Blackie assembled the crimes for which Mr Te Hira had been convicted into two groups, imposing separate, cumulative sentences in respect of each group. However, the crimes are best summarised chronologically, and this is conveniently done in tabular form. The two crimes in the shaded panels form one group, which includes the aggravated robbery for which the Judge imposed the highest sentence:

Date of Crime	Crime	Brief Description
5.3.10	Burglary	Went into a food market in Te Atatu, Auckland. Stole a bag containing $1,000 cash – three days’ takings – from under the desk in the owner’s office. Mr Te Hira committed this burglary with two other people who distracted the shop assistant while Mr Te Hira stole the cash bag. None of the stolen money was recovered.
15.3.10	Burglary	Mr Te Hira and a Mr Nagaseu went into a dairy in Henderson, Auckland. While Mr Nagaseu distracted the shop assistant, Mr Te Hira stole a handbag from the office in the dairy and also $1,200 Lotto takings that were in a bag behind the counter area. The shop assistant became aware that Mr Te Hira was taking the Lotto money and confronted him. He acted aggressively toward her and verbally abused her before making off. Again, none of the stolen money was recovered.
17.5.10	Unlawfully taking a motor vehicle	At about 5 pm Mr Te Hira unlawfully took a locked Mazda Familia car from a public carpark in Parnell, Auckland. The estimated value of the car was $9,500.
18.5.10	Aggravated robbery	At about 7.50 am, with another man, Mr Te Hira robbed a security company employee of two bags in which there were four pre-filled cash canisters, containing $120,000 in $20 notes. The…

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 Hira v The Queen

Details

AGLC: Te Hira v The Queen [2011] NZCA 599
Case: [2011] NZCA 599
Decision Date: 30 November 2011

CaseChat Overview and Summary

The Court of Appeal of New Zealand recently heard an appeal by Isaiah John Te Hira against his sentences totalling eight years imprisonment, as well as an application to reinstate an abandoned appeal against his conviction for aggravated robbery. The appeal against sentence was filed out of time, but an extension of time was granted. The appeal against conviction was abandoned by Te Hira after advice from his counsel, but he later sought to reinstate it. The court dismissed both the appeal against sentence and the application to reinstate the appeal against conviction.

The court found that the appeal against conviction could not proceed because it was highly unlikely to succeed. Te Hira had pleaded guilty to all charges, including the aggravated robbery, and the evidence against him was strong. The court found that there was no miscarriage of justice in Te Hira's conviction, and that the appeal against conviction did not meet the very limited grounds on which such an appeal can succeed following a guilty plea.

The court also dismissed the appeal against sentence, finding that the sentence imposed was fair and that the trial judge had appropriately considered Te Hira's remorse in sentencing. The court found that the trial judge had in fact taken Te Hira's remorse into account, but had given it limited weight because there was no tangible demonstration of remorse. The court also noted that Te Hira's appeal against his conviction for aggravated robbery, a crime to which he had admitted and pleaded guilty, was inconsistent with his claim that the trial judge had failed to recognise his remorse.

In conclusion, the Court of Appeal dismissed both the appeal against sentence and the application to reinstate the appeal against conviction for aggravated robbery. The court found that there had been no miscarriage of justice in Te Hira's conviction, and that the sentence imposed was fair.

Orders