Te Tomo v The King - [2025] NZCA 295

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA455/2016
[2025] NZCA 295

BETWEEN	TYSON‑TAINUI RUKUWAI TE TOMO Appellant
AND	THE KING Respondent

Hearing:	13 May 2025
Court:	Woolford, Jagose and Powell JJ
Counsel:	S K Green for Appellant E J Hoskin for Respondent
Judgment:	3 July 2025 at 11 am

JUDGMENT OF THE COURT

A The application to admit further evidence on appeal is declined.

B The appeal against sentence is dismissed.

REASONS OF THE COURT

(Given by Powell J)

Introduction

Following a jury trial in 2015 before Hinton J, Tyson‑Tainui Rukuwai Te Tomo was convicted of murder. He was subsequently sentenced to life imprisonment with a minimum period of imprisonment (MPI) of 10 years and six months.[1]
[1]R v Te Tomo [2015] NZHC 2671 [sentencing notes].
Mr Te Tomo filed a notice of appeal against conviction and sentence on 30 July 2016, some nine months out of time. The Court accepted Mr Te Tomo’s explanation for the delay in filing the appeal, but in 2017 dismissed his appeal against conviction (the conviction appeal judgment).[2] For reasons that are not clear, the sentence appeal was not dealt with at that time. Instead, no steps appear to have been taken to advance the appeal against sentence until March 2024 and no explanation has been given for that delay.
[2]Te Tomo v R [2017] NZCA 338 [conviction appeal judgment].
Mr Te Tomo has now brought the sentence appeal on for hearing. No issue arises with regard to the late filing of the appeal,[3] although Mr Te Tomo seeks leave to adduce fresh evidence by way of affidavits from both himself and Dr Erin Eggleston, a neuropsychologist. This application is opposed by the Crown on the basis the evidence sought to be adduced is neither fresh nor cogent.
[3]Consistent with the conviction appeal judgment, in a minute dated 19 February 2025 Thomas J determined an application for leave to appeal out of time did not need to be dealt with.
With regard to the substance of the appeal, Mr Te Tomo contends his sentence of life imprisonment and MPI was, and remains, manifestly excessive. He submits, with reference to authority decided subsequent to his sentencing,[4] that having regard to the circumstances of the offending (in particular a lack of culpability on his part), and his personal circumstances (his youth, background and cognitive issues), a sentence of life imprisonment was manifestly unjust in terms of s 102(1) of the Sentencing Act 2002.
[4]R v D [2024] NZHC 2118; Dickey v R [2023] NZCA 2, [2023] 2 NZLR 405; and Kriel v R [2024] NZCA 45.
Opposing the appeal, the Crown position is that although it was not brought late, the delay in bringing the appeal against sentence to hearing raises issues of finality and in particular “the interests of victims … witnesses, and the integrity of the court’s processes which are put at risk if appeals are allowed to be reactivated…

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 Tomo v The King

Details

AGLC: Te Tomo v The King [2025] NZCA 295
Case: [2025] NZCA 295
Decision Date: 3 July 2025 at 11 am

CaseChat Overview and Summary

Tyson-Tainui Rukuwai Te Tomo appealed against his conviction and sentence of life imprisonment with a minimum period of imprisonment of 10 years and six months for murder. The appeal against conviction had been dismissed in 2017. Te Tomo sought to appeal against his sentence, seeking leave to adduce fresh evidence by way of affidavits from himself and a neuropsychologist. The Crown opposed the appeal on the basis that the sentence was not manifestly excessive and the evidence sought to be adduced was not fresh or cogent. The court held that there was nothing in the circumstances of the offending or Te Tomo's personal circumstances that made the life sentence manifestly unjust. The appeal against sentence was dismissed and the application to adduce further evidence was declined. The court found that Te Tomo's culpability was high, as he had deliberately and persistently escalated the violence against the victim, and that his personal circumstances did not reduce his culpability. The court also found that the evidence sought to be adduced was not fresh or cogent, and would not have changed the outcome of the appeal.

Orders