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Tiori v R

Tiori v R

Case [2011] NZCA 355 28 July 2011

Sentencing

Aggravating Factors

Discount for Guilty Plea

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Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA61/2011
[2011] NZCA 355

BETWEEN TYRONE TIORI
Appellant

AND THE QUEEN
Respondent

CA62/2011

AND BETWEEN DAMIEN MATTHEWS
Appellant

AND THE QUEEN
Respondent

CA63/2011

AND BETWEEN RA TANIRAU
Appellant

AND THE QUEEN
Respondent

Hearing: 28 June 2011

Court: Wild, Rodney Hansen and MacKenzie JJ

Counsel: A F Rickard-Simms for Appellants
A M Toohey for Respondent

Judgment: 28 July 2011 at 4.15 pm

JUDGMENT OF THE COURT

A Extension of time to appeal is granted.

BThe appeals are allowed. The sentences are quashed and the following sentences substituted:
(i)For Mr Tiori, six years imprisonment
(ii)For Mr Tanirau, five years eight months imprisonment.
(iii)For Mr Matthews, five years ten months imprisonment.

____________________________________________________________________

REASONS OF THE COURT

(Given by MacKenzie J)

Introduction

The appellants were sentenced by Judge Harrop in the District Court at Masterton on 22 December 2010 to terms of imprisonment ranging from seven years to seven years four months following their pleas of guilty to a count of aggravated robbery on 2 September 2010. Each of them appeals against the sentence imposed on the grounds that it was manifestly excessive. Notice of appeal was not filed until 7 February 2011, a few days late, because of the holiday period. An extension of time is sought. It is not opposed, and is granted.

Facts

The robbery took place at a house across the road from Mr Matthews’ house. The occupants were known to the appellants. Sometime earlier, there had been an assault on Mr Tanirau by someone associated in some way with the occupants. The three appellants (together with a fourth person who, at the time of sentencing, was facing trial), were gathered at Mr Matthews’ house one day in late August, and discussed retaliation against the occupants of the house for the assault on Mr Tanirau. A plan was hatched that Mr Tanirau would go to the house, which was known to be a tinnie house, on the pretext of purchasing cannabis, to obtain information about who was there and how access could best be obtained. He would alert the others, who would then enter to carry out the intended retaliation. There was some preparation in that Mr Tanirau purchased a second cellphone SIM card which he intended to use to conceal the sending of text messages in carrying out the plan. Weapons, including a slug gun and a hammer, were obtained.
On the night of 2 September 2010, they agreed to carry out the planned invasion of the house. Mr Tanirau visited the house at about 10.30pm. He purchased a small amount of cannabis and was invited inside. The usual occupants of the house were three men and three women, with two children aged under two. On this night there were a further four adults visiting. There were three males and two females still up at the time. Mr Tanirau texted the others advising the number of occupants, the best time to enter, which door to use and the approach to that…

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 Tiori v R

Details

AGLC: Tiori v R [2011] NZCA 355
Case: [2011] NZCA 355
Decision Date: 28 July 2011

CaseChat Overview and Summary

The case of Tiori v R involved three appellants who had been sentenced for aggravated robbery, with the appellants arguing that the sentences imposed were manifestly excessive. The appeals were heard by the Court of Appeal of New Zealand, consisting of Wild, Rodney Hansen, and MacKenzie JJ. The key legal issues were whether the starting point of ten years was appropriate, and whether the discount allowed for the guilty pleas, cooperation with police, and remorse was adequate. Counsel for the appellants argued that the starting point should have been between eight and nine years, and that a further discount should have been allowed for cooperation with police and remorse. The Crown argued that the starting point and discount were appropriate, and that the sentences should be upheld.

The court found that the starting point of ten years was too high, and that an appropriate starting point would have been eight years. The court also found that the discount of 33% was appropriate, and that no further discount should have been allowed for cooperation with police and remorse. The court found that the discount allowed for the guilty pleas already incorporated remorse and cooperation with police, and that no further discount was warranted. The sentences were therefore quashed, and new sentences were substituted, with Tiori receiving six years, Tanirau receiving five years and eight months, and Matthews receiving five years and ten months.

The final orders of the court were that the appeals were allowed, the sentences were quashed, and new sentences were substituted as outlined above. The court also granted an extension of time to appeal, as the notices of appeal had been filed a few days late due to the holiday period. The court found that the extension of time should be granted, as it was not opposed by the Crown.

Orders