Teriini v R - [2013] NZCA 614

IN THE COURT OF APPEAL OF NEW ZEALAND

CA223/2013
[2013] NZCA 614

BETWEEN	KHAN TERIINI Applicant
AND	THE QUEEN Respondent

Hearing:	20 November 2013
Court:	Randerson, Heath and Asher JJ
Counsel:	M J Phelps for Applicant B F Windley for Respondent
Judgment:	4 December 2013 at 4:00 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.
BThe appeal against sentence is dismissed.

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REASONS OF THE COURT

(Given by Heath J)

Mr Teriini applies for an extension of time to appeal against an effective end sentence of five years and three months imprisonment. The sentence was imposed in the District Court at Napier on 1 March 2013, following the entry of pleas of guilty to one count of indecent assault, one of injuring with intent to injure and one of attempting to pervert the course of justice.[1] Mr Teriini was also given a first strike warning, under the “Three Strikes” regime.[2]
[1]R v Teriini DC Napier CRI-2012-020-2055, 1 March 2013.
[2]Sentencing Act 2002, ss 86A–86I.
The Crown does not oppose an extension of time. That application is granted.

The facts

(a) Indecent assault

At about 1.05 am on 22 May 2011, Mr Teriini was running along Eastbourne Street, in Hastings. The female complainant was walking in the opposite direction. She was extremely intoxicated. When they met, the complainant told Mr Teriini that she was disorientated and asked for help to get home. Mr Teriini walked with her towards Lyndon Road.
Near the Hastings Art Gallery, Mr Teriini grabbed the complainant’s arm and pulled her into the library and art gallery grounds. Although the complainant tried to resist, she was too intoxicated to do so. Mr Teriini dragged her into an enclosed courtyard in the centre of the buildings. He then removed all the complainant’s clothes.
Mr Teriini sucked the complainant’s left breast with his mouth. He then left the scene, leaving the complainant lying naked on the ground and in a distressed state. Fortunately, the complainant was able to dress herself and make her way to Lyndon Road. She was located there by friends and family who had been searching for her.
The incident was reported to the police. Mr Teriini’s role as the offender was established by DNA testing, a specimen having been found on the complainant’s breast.

(b) Injuring with intent to injure

On 4 September 2012, Mr Teriini was being held in custody at Hawkes Bay Regional Prison. He was being transported in a police prison van to the District Court at Hastings. Three other inmates travelled with him, one of whom was Mr Ngahuka-Edwards. He and Mr Teriini were known to each other.
On arrival at the Court, Mr Teriini and Mr Ngahuka-Edwards were placed in separate cells. Mr Teriini is associated with one gang. Mr Ngahuka-Edwards found himself in a cell with a member of a rival gang. Mr Teriini directed Mr Ngahuka-Edwards to “waste” the rival gang member. He refused to do so.
Later that day,…

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 Teriini v R

Details

AGLC: Teriini v R [2013] NZCA 614
Case: [2013] NZCA 614
Decision Date: 4 December 2013 at 4:00 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Khan Teriini sought an extension of time to appeal against his sentence, which was imposed by the District Court at Napier. The sentence was five years and three months imprisonment, following pleas of guilty to indecent assault, injuring with intent to injure, and attempting to pervert the course of justice. The Crown did not oppose the application for an extension of time, and the court granted the application. However, the appeal against the sentence was dismissed.

The primary legal issues before the Court were whether the starting point for the sentences imposed by the District Court was too high and whether the credit for the guilty pleas was too low. The Court considered whether the totality principle and the maximum penalties for the respective charges were appropriately applied. The Court also examined whether the credit given for the guilty pleas was within the range of judicial evaluation.

The Court held that the District Court appropriately applied the totality principle and considered the maximum penalties for the charges. The Court found that the starting point for the indecent assault charge was not out of range, given the use of physical force and the vulnerability of the victim. The Court also found that the starting point for the injuring charge was appropriate, considering the vulnerability of the victim and the seriousness of the injuries inflicted. The Court was satisfied that the credit given for the guilty pleas was within the range of judicial evaluation, and the end sentence adequately reflected the totality of the offending.

The Court granted the application for an extension of time to appeal but dismissed the appeal against the sentence.

Orders