Te Kiri v The King - [2024] NZHC 122

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI 2023-463-64

[2024] NZHC 122

BETWEEN
MACK ABRAHAM TE KIRI

Appellant

AND

THE KING

Respondent

Hearing: 2 February 2024

Appearances:

A Cresswell for the Appellant G Banuelos for the Respondent

Judgment:

8 February 2024

JUDGMENT OF HARVEY J

[Appeal against sentence]

This judgment is delivered by me on 8 February 2024 at 4.15 pm.

.

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

Solicitors/Counsel:
Annabel Cresswell, Barrister, Auckland Crown Solicitor, Rotorua

TE KIRI v R [2024] NZHC 122 [8 February 2024]

Introduction

[1] Following a judge-alone trial at Rotorua,1 Mack Te Kiri was convicted of three charges of assault with intent to injure;2 two charges of assault with a weapon;3 one charge of male assaults female;4 wounding with intent to injure;5 two charges of threatening to kill;6 one charge of indecent assault;7 three charges of contravention of a protection order;8 three charges of strangulation;9 and eight charges of assault on a person in a family relationship.10 On 24 May 2023, he was sentenced by Judge D J McDonald to nine years’ imprisonment.11

[2] Mr Te Kiri now appeals to this Court on two principal grounds. First, that his sentence was manifestly excessive because the starting point and uplifts applied by the District Court Judge in sentencing were excessive. Second, that the discount allowed for his cultural report was insufficient.

[3]The Crown opposes the appeal.

The offending

[4] Between 2018 and April 2022, the appellant and the victim were in a relationship which the evidence confirms was characterised by family violence. The first instance of the appellant’s violence toward to the victim occurred in 2018 when he punched her in the face with sufficient force to knock her to the ground. He then strangled her with a charging cord. Later in 2018, the appellant and victim were arguing on Lake Road when the appellant punched the victim in the head, causing her to lose consciousness. In April 2019, the appellant punched the victim in the face, causing a nosebleed and a split lip. At some point between April 2019 and July 2019, the appellant again used a charging cord to strangle the victim. In December 2020,

1      R v Te Kiri [2023] NZDC 4657.
2      Crimes Act 1961, s 193. Maximum penalty of three years’ imprisonment.
3      Section 202C(1). Maximum penalty of five years’ imprisonment.
4      Section 194. Maximum penalty of two years’ imprisonment.
5      Section 188(2). Maximum penalty of seven years’ imprisonment.
6      Section 306(1)(a). Maximum penalty of seven years’ imprisonment.
7      Section 135. Maximum penalty of seven years’ imprisonment.
8      Family Violence Act 2018, s 112(1)(a). Maximum penalty of three years’ imprisonment.
9      Crimes Act, s 189A. Maximum penalty of seven years’ imprisonment.
10     Section 194A. Maximum penalty of two years imprisonment.
11     R v Te Kiri [2023] NZDC 10468.

the appellant threatened to kill the victim with an air gun, before threatening grievous bodily harm with a sword. He then proceeded to physically…

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 Kiri v The King

Details

AGLC: Te Kiri v The King [2024] NZHC 122
Case: [2024] NZHC 122
Decision Date: 8 February 2024

CaseChat Overview and Summary

The appeal in Te Kiri v The King concerns the appellant's challenge against his sentence imposed by the District Court following his conviction on multiple charges of assault and other related offences. The appellant was sentenced to nine years' imprisonment for his involvement in repeated incidents of family violence against the victim, spanning from 2018 to 2022. The appeal focuses on the alleged excessiveness of the sentence and the sufficiency of the discount applied for the appellant's cultural background.

The central legal issues were whether the sentence imposed by the District Court was manifestly excessive and whether the discount applied for the cultural report was adequate. The appellant argued that the starting point and the uplift applied by the District Court were excessive, and that the cultural discount was insufficient. The Crown maintained that the sentence was appropriate and that the District Court's approach was justified.

The High Court found that while the starting point for the strangulation charges was appropriate, the uplift of four years for the remaining charges was excessive. The court held that the District Court's consideration of the totality principle was insufficiently explained, and that an uplift of three years and six months was more appropriate. The court also found that the District Court's discount for the cultural report was within the permissible range, noting that the judge was best placed to assess the credibility and relevance of the cultural factors presented.

The appeal was allowed in part. The sentence of nine years’ imprisonment was quashed and replaced with a sentence of eight years and six months’ imprisonment. The court emphasised the need for careful consideration of the totality principle, especially in cases involving repeated and closely related offences, and highlighted the importance of a proper nexus between the offender's background and the offending when applying discounts for cultural factors.

Orders