Tihema v The Queen - [2017] NZHC 1018

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2017-441-9 [2017] NZHC 1018

BETWEEN
TENAHU TIHEMA

Appellant

AND

THE QUEEN Respondent

Hearing: 16 May 2017

Counsel:

E J Forster for Appellant
M L Wong for Crown

Judgment:

17 May 2017

JUDGMENT OF THOMAS J

Introduction

[1] On 7 March 2017, Tenahu Tihema was sentenced to 10 months’ imprisonment by Judge AJ Adeane in the Napier District Court.1 Mr Tihema had pleaded guilty to aggravated assault,2 attempting to introduce contraband into a prison,3 possession of a knife in a public place,4 and threatening to do grievous bodily harm.5

[2] Pursuant to s 244(1) of the Criminal Procedure Act 2011, Mr Tihema appeals against that sentence on two grounds: first, the Judge erred as evidenced by the disparate sentences Mr Tihema and his co-accused received; and secondly, the Judge erred in failing to properly account for the time Mr Tihema spent on electronically
monitored bail (EM bail).

1      R v Tihema [2017] NZDC 4599.
2      Crimes Act 1961, s 192(1); maximum penalty three years’ imprisonment.
3      Corrections Act 2004, s 141(1)(a); three months’ imprisonment and $2000 fine.
4      Summary Offences Act 1981, s 13A ; three months’ imprisonment.
5      Crimes Act 1961, s 306; seven years’ imprisonment.

TIHEMA v THE QUEEN [2017] NZHC 1018 [17 May 2017]

Facts

[3] At about 5.15pm on 28 July 2016, a Department of Corrections prison officer discovered Tenahu Tihema, together with Christopher Hawkins, John Kaka and Pito Wainohu, in a vehicle in an orchard approximately 50 metres from the boundary fence of Hawkes Bay Regional Prison. Mr Tihema was the driver. He attempted to drive away, but the officer blocked the exit. The Corrections officer attempted to detain Mr Tihema and his associates, who verbally challenged the Corrections officer. All four exited the vehicle and began walking in different directions. Mr Kaka, claiming he wanted to urinate, was observed fumbling with something in his pants.

[4] The Corrections officer noticed four or five packages wrapped in electrical tape about three metres from the car, and believed they were packages intended to be thrown over the fence. The Corrections officer saw a similar package in the back seat of the car.

[5] Further Corrections staff arrived. Mr Hawkins and Mr Kaka were detained but Mr Wainohu and Mr Tihema walked away. The Corrections officer pursued Mr Tihema. Mr Tihema “leapt towards” the Corrections officer three times, raising his arms and yelling, causing him to leap backwards to get out of the way. Mr Tihema said he would “fuck him up”. This gave rise to the threatening grievous bodily harm charge. On the third time, the Corrections officer fell backwards into a ditch. This gave rise to the aggravated assault charge.

[6] Mr Tihema then ran away and was picked up by another vehicle. Police stopped this vehicle and arrested Mr Tihema.

[7] The abandoned vehicle was searched by Police, who discovered three knives under the seats. This gave rise to the possession of a knife charge.

[8]…

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 Tihema v The Queen

Details

AGLC: Tihema v The Queen [2017] NZHC 1018
Case: [2017] NZHC 1018
Decision Date: 17 May 2017

CaseChat Overview and Summary

Tenahu Tihema appeals against his sentence of 10 months’ imprisonment for aggravated assault, attempting to introduce contraband into a prison, possession of a knife in a public place, and threatening to do grievous bodily harm. Tihema argues the sentence was excessive when compared to the sentences of his co-offenders and that the Judge failed to properly account for the time Tihema spent on electronically monitored (EM) bail. The High Court was required to determine whether the sentence imposed was vitiated by error and, if so, whether a different sentence should be imposed. The Court found that there was no error in the sentence. The Court considered the objective test for disparity between co-offenders, which is whether the disparity is such that a reasonably minded independent observer would think something had gone wrong with the administration of justice. The Court found that the disparity between the sentences of Tihema and his co-offenders was adequately explained by the variance in charges they each faced. The Court also found that the Judge had taken into account Tihema’s time spent on EM bail when setting the final sentence length. The Court held that the sentence of ten months’ imprisonment was within the acceptable range and dismissed the appeal.

Orders