Timutimu v The King - [2023] NZHC 329

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-000350

[2023] NZHC 329

BETWEEN
TE AWANUI TIMUTIMU

Appellant

AND

THE KING

Respondent

Hearing: 27 February 2023 (by VMR)

Appearances:

Appellant in Person

A Al-Janabi for Crown

Judgment:

28 February 2023

JUDGMENT OF VENNING J

Appeal against sentence

This judgment was delivered by me on 28 February 2023 at 2.15 pm.

Registrar/Deputy Registrar

Date……………

Solicitors: Crown Solicitor, Manukau Copy to: Appellant

TIMUTIMU v R [2023] NZHC 329 [28 February 2023]

[1] On 2 August 2022 Judge K Grau sentenced Te Awanui Timutimu to 10 years, 10 months’ imprisonment on a charge of wounding Martin Murray with intent to cause him grievous bodily harm.1 The sentence was imposed following Mr Timutimu’s guilty plea, which he had entered during the course of his trial. Mr Timutimu represented himself at trial but the trial Judge had appointed counsel to assist.

[2] Mr Timutimu now appeals against the sentence as being manifestly excessive. Again Mr Timutimu represents himself.

Background

[3]I take the summary of facts from Judge Grau’s sentencing notes:

[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 the last…

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 [2023] NZHC 329
Case: [2023] NZHC 329
Decision Date: 28 February 2023

CaseChat Overview and Summary

Te Awanui Timutimu appeals against his sentence of 10 years and 10 months' imprisonment for wounding Martin Murray with intent to cause grievous bodily harm. The appeal was heard by Venning J. The primary issue before the Court was whether the sentence imposed was manifestly excessive. The Court found that the sentence was not manifestly excessive but acknowledged that the mitigating factors, including the appellant's mental health condition, warranted a reduced sentence. The Court allowed the appeal and replaced the sentence with 10 years' imprisonment.

Venning J commenced by outlining the facts of the case, including the nature of the attack and the severe injuries sustained by the victim. The Court considered the starting point of 12 years' imprisonment, which was appropriate given the gravity of the offence. The Court also noted that the 5% discount for the guilty plea and the 5% reduction for mental health issues, as outlined in a section 27 report, were adequately considered by the sentencing Judge. However, the Court found that the mitigating factors, including the appellant's mental health condition, warranted a further reduction in sentence. The Court concluded that an overall reduction of 16% in sentence for all mitigating factors would be appropriate, resulting in a sentence of 10 years' imprisonment. The Court allowed the appeal and replaced the original sentence with a sentence of 10 years' imprisonment.

Orders