Te Moananui v The Queen - [2014] NZHC 2320

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2014-412-000029 [2014] NZHC 2320

BETWEEN
DANIEL TIPENE TE MOANANUI

Appellant

AND

THE QUEEN Respondent

Hearing: 23 September 2014

Appearances:

S A Saunderson-Warner for Appellant
R P Bates for Respondent

Judgment:

23 September 2014

ORAL JUDGMENT OF GENDALL J

Introduction

[1] The appellant Mr Te Moananui appeals against a sentence of three years and two months’ imprisonment imposed by Judge Phillips in the Dunedin District Court on 6 August 2014 for the following charges:

(a) burglary;1

(b) assault with intent to injure;2 and

(c) theft.3

[2] Mr Te Moananui appeals on grounds that the sentence Judge Phillips imposed was manifestly excessive. The sole ground of appeal however is that Judge Phillips

1      Crimes Act 1961, s 231(1)(a). Maximum penalty of 10 years’ imprisonment.
2      Sections 193 and 66(2). Maximum penalty of three years’ imprisonment.
3      Section 219. Maximum penalty of three months’ imprisonment.

TE MOANANUI v R [2014] NZHC 2320 [23 September 2014]

erred in applying an uplift of two years’ imprisonment for the charge of assault with intent to injure.

[3] Also on 6 August 2014, Mr Te Moananui’s co-offender, Mr Zane Currie, was sentenced to six years’ two months imprisonment on the lead charge he was facing of causing grievous bodily harm with intent to injure.

Background facts

Burglary and assault with intent to injure

[4] On 8 December 2013 Mr Te Moananui and his associate Mr Currie were at Mr Currie’s address in Kaka Point. The two had been heavily drinking alcohol during the afternoon and smoking cannabis.

[5] At about 5.30 pm, they left Mr Currie’s address on foot heading to the victim’s address, also in Kaka Point. Both Mr Te Moananui and Mr Currie were wearing hooded sweatshirts with the hoods pulled up and bandanas worn over their faces in an attempt to conceal their identities.

[6] At that time, the first victim, a 65 year old female, was asleep on a chair in the lounge of her home. Mr Te Moananui and Mr Currie entered the property through an insecure garage door at the rear of the address and went into the lounge area.

[7] Mr Currie then attacked the victim while she slept, delivering multiple blows to her face and head. Mr Currie then dragged the victim from her chair and onto the floor where he continued the attack. The first victim received multiple serious head and facial injuries as a result of the attack, was hospitalised, and she had to undergo several serious repair operations.

[8] At this point, the second and third victims, a 55 year old man and a 65 year old man, both of whom observed Mr Te Moananui and Mr Currie inside the address, went to investigate. As they approached the lounge ranch slider door they saw Mr Te Moananui and Mr Currie standing near the kitchen bench where the 65 year

old female victim was later discovered. While walking along the front of the property they observed Mr Te…

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 Moananui v The Queen

Details

AGLC: Te Moananui v The Queen [2014] NZHC 2320
Case: [2014] NZHC 2320
Decision Date: 23 September 2014

CaseChat Overview and Summary

The appellant, Mr. Te Moananui, appeals against the sentence of three years and two months' imprisonment imposed by Judge Phillips in the Dunedin District Court for burglary, assault with intent to injure, and theft. The appellant argues that the sentence imposed was manifestly excessive due to an error in applying a two-year uplift for the assault with intent to injure charge. The court must determine whether the sentence is within the range appropriate for the offence.

The court considered the legal principles governing sentence appeals, which require that an error in the sentence must be material and result in a manifestly excessive sentence. The court found that Judge Phillips correctly identified the circumstances of the offending as relevant factors in determining the starting point for sentencing. However, the court considered whether the two-year uplift for the assault with intent to injure charge was appropriate.

The court concluded that while there may have been some error in applying the two-year uplift for the assault with intent to injure charge, it did not result in a sentence that was manifestly excessive. The court determined that the end sentence of three years and two months' imprisonment was within the range appropriate for the offence. Therefore, the appeal was dismissed.

The court did not find it necessary to make any orders in light of the dismissal of the appeal.

Orders