Timutimu v The King - [2024] NZCA 296

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA61/2024
[2024] NZCA 296

BETWEEN	TE AWANUI TIMUTIMU Applicant
AND	THE KING Respondent

Court:	Katz, Brewer and Downs JJ
Counsel:	J E L Carruthers for Applicant I A A Mara for Crown
Judgment: (On the papers)	4 July 2024 at 3.00 pm

JUDGMENT OF THE COURT

The application for leave for a second appeal is declined.

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REASONS OF THE COURT

(Given by Downs J)

The proposed appeal

Te Awanui Timutimu pleaded guilty during trial to one charge of wounding with intent to cause grievous bodily harm.[1] The offending permanently blinded the victim. Judge K Grau sentenced Mr Timutimu to a term of 10 years and 10 months’ imprisonment.[2] On appeal to the High Court, Venning J reduced the sentence to 10 years’ imprisonment.[3] Mr Timutimu seeks leave to bring a second sentence appeal to this Court.

Background

[1]Crimes Act 1961, s 188(1). The maximum penalty is 14 years’ imprisonment.

[2]R v Timutimu [2022] NZDC 14641.

[3]Timutimu v R [2023] NZHC 329.

Judge Grau’s sentencing remarks conveniently summarise the facts:
[3]       Mr Murray was your landlord and you two lived together at his property in Botany Downs, a property that Mr Murray bought a few years ago. It seemed to me that, while you were not close friends, you got along all right, and I remember hearing evidence that sometimes you would keep to yourself, other times you might both have your dinner in front of the TV and watch a bit of TV together, but there were no issues between you. In one of the victim impact statements that I have read, from Martin’s son, Joseph, he said that he had counted you as a kind person. But all of that changed when you went into the lounge and asked Mr Murray why he was tracking you. He did not know what on earth you were talking about. You tried to get him to fight you. You are a much bigger man than he is.
[4]       You insulted him for not fighting you. You started slapping him. You knocked him around. You grabbed him by the throat and you threw him onto the sofa so that he was lying face down. You got on top of him and squeezed his throat. Mr Murray was trying to protect himself. You put your fingers into his left eye and destroyed his vision in that eye. That must have been so painful and terrifying.
[5]       You then dragged him off the couch and onto the floor and you said something like that you were coming for his other eye. You did that. You put your fingers into his right eye and you removed his sight in that eye as well, when at that stage he was completely defenceless.
[6]       I remember Mr Murray saying at the trial that after you had blinded him in one eye, he looked at the wall and thought “This is…

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 Timutimu v The King

Details

AGLC: Timutimu v The King [2024] NZCA 296
Case: [2024] NZCA 296
Decision Date: 4 July 2024 at 3.00 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand was presented with an application by Te Awanui Timutimu for leave to bring a second appeal against his sentence for an offence of wounding with intent to cause grievous bodily harm. The original sentence was imposed by Judge K Grau at the High Court, and subsequently reduced by Venning J on appeal. Timutimu now seeks leave for a second appeal, contending that his sentence remains manifestly excessive given his mental health issues. The Crown opposed the application, arguing that the sentence appropriately balanced the mitigating factors of Timutimu’s mental health with the need for public protection.

The central legal issue was whether the application met the criteria for leave to appeal, specifically whether the appeal involved a matter of general or public importance, or whether a miscarriage of justice might have occurred. The Court considered whether the second appeal involved settled law or an arguable point of law that might result in a manifestly unjust outcome. The Court had to balance the mitigating effect of Timutimu’s mental health against the principle of public protection due to the gravity of the offence and the risk posed by Timutimu.

The Court found that the application did not meet the criteria for leave to appeal. The Court acknowledged the settled principle that mental health may be a mitigating factor but emphasised that public protection was a compelling consideration in this case, given the severity of the offence and the risk Timutimu posed to others. The Court noted that Timutimu’s history of violence, the gravity of the harm caused, and his lack of insight and remorse supported the High Court’s assessment. The Court concluded that the sentence was not manifestly excessive, and the mitigating effect of Timutimu’s mental health had already been appropriately considered.

The Court declined the application for leave to bring a second appeal. The Court found no basis for concluding that the sentence was manifestly excessive or that a miscarriage of justice had occurred. The Court’s decision underscores the importance of balancing the principles of sentencing, particularly in cases involving serious offences and significant mitigating factors such as mental health.

Orders