Te Ruki v R - [2018] NZCA 319

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA705/2017
[2018] NZCA 319

BETWEEN	LAURENCE TYSON TE RUKI Appellant
AND	THE QUEEN Respondent

CA4/2018
BETWEEN	ZINZAN WAIMATE BROOK TAMOU Appellant
AND	THE QUEEN Respondent

Hearing:	22 May 2018
Court:	French, Ellis and Woolford JJ
Counsel:	P M Keegan for Appellant in CA705/2017 M S Boyd for Appellant in CA4/2018 K S Grau and K L Kensington for Respondent
Judgment:	23 August 2018 at 2 pm

JUDGMENT OF THE COURT

AThe appeal against conviction by Mr Tamou is dismissed.
BThe appeals against sentence by Mr Tamou and Mr Te Ruki are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Woolford J)

On 10 November 2017, Zinzan Tamou and Laurence Te Ruki, together with a third man, William Pouha, were found guilty by a jury of wounding with intent to cause grievous bodily harm and participation in an organised criminal group.
On 7 December 2017, Judge Sygrove sentenced each of the three men to five years’ imprisonment.[1] Earlier three other men involved in the same offence had pleaded guilty to the same charges. They had been sentenced to three years and nine months’ imprisonment after receiving a discount for their guilty pleas.[2]
[1]R v Te Ruki [2017] NZDC 28071 [sentencing notes].
[2]R v Ngataierua [2017] NZDC 13173.
Mr Tamou now appeals against both conviction and sentence. Mr Te Ruki appeals against sentence. Mr Pouha has not appealed.

Factual background

The victim of the assault wanted to sell some dive gear. Mr Tamou said he was interested, so the victim drove to Mr Tamou’s house with an acquaintance and the gear. On arrival he spoke with Mr Tamou. Four men then arrived by car. They were the three men who had earlier pleaded guilty, and Mr Te Ruki. Mr Te Ruki was wearing a Black Power patch. One of the other men had a Black Power fist tattooed on his cheek.
The three men immediately began assaulting the victim. When he fell to the ground the assailants kicked and stomped on his face, head and body. While the assault continued, Mr Te Ruki told the victim’s acquaintance that if he said anything they would hunt him down and “fuck [him] up” too. One of the men then rang Mr Pouha, the president of the South Island chapter of Black Power, on his mobile phone. The phone was put on loud speaker. Mr Pouha told the victim the assault was because he had gone to a house occupied by Mr Pouha’s niece and threatened her. While this was occurring, Mr Tamou stood by and watched the assault, but did not take part in the violence. Mr Te Ruki also did not take part in the violence.
The assault lasted about 10 minutes. Mr Te Ruki and the three others left in the car in which they had arrived, having taken the dive gear and other property from the victim.
It was the Crown case that this was…

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 Ruki v R

Details

AGLC: Te Ruki v The Queen [2018] NZCA 319
Case: [2018] NZCA 319
Decision Date: 23 August 2018 at 2 pm

CaseChat Overview and Summary

Zinzan Waimate Brook Tamou and Laurence Tyson Te Ruki appeal against their convictions and sentences for wounding with intent to cause grievous bodily harm and participation in an organised criminal group. The appeal against Tamou's conviction is dismissed. The appeals against sentence by Tamou and Te Ruki are also dismissed. The victim of the assault wanted to sell some dive gear to Tamou. Upon arrival at Tamou's house, the victim was assaulted by three other men. The victim was kicked and stomped on his face, head, and body. While the assault continued, Te Ruki told the victim's acquaintance that if he said anything they would hunt him down and "fuck [him] up" too. Tamou stood by and watched the assault, but did not take part in the violence. Te Ruki also did not take part in the violence. The Crown case was that this was an organised Black Power gang hit on the victim and that although Tamou, Te Ruki, and Pouha did not take part in the violence, each played their part in the assault, such that they were just as guilty as the three men who actually assaulted the victim and pleaded guilty to the same charges. The appeals against conviction and sentence were dismissed. The appeal against conviction by Tamou is dismissed because the evidence demonstrated Tamou's participation in the assault by making arrangements for the victim to come to his house and ensuring that he remained there until after the assault. The appeals against sentence by Tamou and Te Ruki are dismissed because the Judge was in a unique position, having given sentence indications and sentenced the three co-offenders as well as presiding over the trial in which Tamou, Te Ruki, and Pouha were found guilty. The Judge had a comprehensive knowledge of the case and each of the defendants' involvement in it and was best placed to assess relative culpability.

Orders