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Tiplady-Koroheke v R

Tiplady-Koroheke v R

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Case Copied 17 October 2012 12 min read

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA518/2012
[2012] NZCA 477

BETWEEN TYRON KARLOS TIPLADY-KOROHEKE
Appellant

AND THE QUEEN
Respondent

Hearing: 9 October 2012

Court: Ellen France, Ronald Young and Andrews JJ

Counsel: S A Saunderson-Warner for Appellant
F E Cleary for Respondent

Judgment: 17 October 2012 at 10 am

JUDGMENT OF THE COURT

AOrder made extending the time for appeal.
BThe appeal against sentence is allowed.
CThe sentence of two years’ imprisonment is quashed and a sentence of one year and nine months’ imprisonment imposed.
DThe special conditions imposed by the District Court remain.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ronald Young J)

Introduction

The appellant, Mr Tiplady-Koroheke and five other men were walking north on George Street in Dunedin on 23 September 2011. Another group of six males were play fighting amongst themselves on the corner of the Octagon and George Street. Without provocation one of the appellant’s associates struck one of the other group who was lying on the footpath. The appellant then became involved. He assaulted three separate victims. He was charged with three counts of assault with intent to injure. Following a sentence indication he pleaded guilty to one charge of common assault and two charges of assault with intent to injure. He was sentenced to two years’ imprisonment on the assault with intent to injure charges and a concurrent term of six months’ imprisonment for the assault charge.
He appeals against this sentence. The grounds of appeal are that the starting point was too high, the discount given by the Judge for mitigating factors too small and that home detention should have been imposed.
The appeal was filed out of time. The sentence was imposed on 16 July 2012 and the appeal filed on 21 August 2012. This was eight days late. Given the modest delay in filing the appeal, we extend the time to appeal.

Background facts

After the appellant’s associate struck a victim lying on the footpath, the appellant then punched the first victim in the face knocking him to the ground. He then stood over the victim and stomped on his upper body. The victim regained his feet and went to protect one of his friends who was lying unconscious on the footpath following the earlier assault. This victim was punched in the face and knocked to the ground again by the appellant.
The appellant then punched a second victim who was also trying to help his unconscious friend. As a result of the punch, the victim stumbled back and the appellant kicked and punched him to the ground. While this victim was on the ground the appellant punched him in the face and then stomped with his right foot and then his left foot on the victim’s head.
Finally, the appellant ran at the third victim who had his back to the appellant. He punched the victim in the head, grabbed him and threw him to the ground. The appellant then stomped on the victim’s chest. As the…

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.

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Details

Case: [2012] NZCA 477
Decision Date: 17 October 2012

CaseChat Overview and Summary

The case of Tiplady-Koroheke v R involves an appeal by the appellant, Tyron Karlos Tiplady-Koroheke, against his sentence for assault with intent to injure and common assault. The appellant, along with five other men, assaulted three individuals in a unprovoked attack in Dunedin. He pleaded guilty to one count of common assault and two counts of assault with intent to injure. He was sentenced to two years' imprisonment for the assault with intent to injure charges and a concurrent term of six months for the common assault. The appellant appealed on the grounds that the starting point for his sentence was too high, the discount for mitigating factors was too small, and that home detention should have been imposed instead of imprisonment. The appeal was filed out of time, but the Court of Appeal extended the time to appeal.

The Court of Appeal considered the appellant's arguments and found that the starting point of two years' imprisonment was within the range available to the sentencing Judge. The Court noted the seriousness of the unprovoked violence and the fact that the appellant attacked three victims while they were on the ground, including stomping on their heads and upper bodies. The Court was not persuaded by the appellant's argument that the starting point should have been lower, as they found the level of violence to be similar to that in a previous case where a lenient start sentence was upheld. The Court also found that the 20% discount for the appellant's guilty plea was generous and no further reduction for mitigating factors was warranted. The uplift for the appellant's previous convictions was considered too high, and the Court reduced it to three months.

Finally, the Court of Appeal found no error in the Judge's refusal to impose a sentence of home detention. The appellant's recent criminal history indicated a medium risk of re-offending and a high risk of harming others. The Judge had considered all relevant factors and found that a sentence of imprisonment was necessary to achieve the objectives of deterrence, denunciation, and accountability. The Court of Appeal agreed with the Judge's assessment and rejected the appellant's argument that a sentence of home detention would have been more appropriate.

The Court of Appeal reduced the uplift for the appellant's previous convictions and substituted a sentence of one year and nine months' imprisonment, while maintaining the special conditions imposed by the District Court. The concurrent sentence of six months imprisonment for the common assault charge remained unchanged.

Orders