Tipuna v The Queen - [2020] NZHC 1883

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI-2020-416-12

[2020] NZHC 1883

BETWEEN
MARSDEN TIPUNA

Appellant

AND

THE QUEEN

Respondent

Hearing: 28 July 2020

Counsel:

V E Thursby for appellant

C R Stuart for respondent (via VMR)

Judgment:

30 July 2020

RESERVED JUDGMENT OF DOBSON J

[1] On 12 March 2020, the appellant (Mr Tipuna) was sentenced in the District Court at Gisborne by Judge Cathcart to a term of two years and three months’ imprisonment on a lead charge of assault with a weapon.1 Shorter, concurrent, sentences of imprisonment were imposed on two lesser charges of possession of an offensive weapon and wilful trespass.

[2] Mr Tipuna has appealed against that sentence, contending it is manifestly excessive. The grounds of appeal are that the Judge attributed an aggravating factor to the offending that was not part of the agreed facts and was disputed by Mr Tipuna, and that the Judge had adopted an excessive starting point.

1 R v Tipuna [2020] NZDC 6463.

TIPUNA v R [2020] NZHC 1883 [30 July 2020]

The circumstances of the offending

[3] The complainant is Mr Tipuna’s former partner. They had been in a relationship for approximately three years, and have one child together. At the time of the incident, they had been separated for about one year. At 11.00 am on the day in question, 7 February 2019, the Police served a safety order on Mr Tipuna. That was to remain in force for five days and he was at the same time served with a trespass notice ordering him to remain off the property occupied by the complainant. This intervention followed many previous family harm incidents between Mr Tipuna and the complainant, as logged by the Police.

[4] At around 4.15 pm that day, Mr Tipuna went to the complainant’s address, uninvited. Their two year old child was present at the time when he confronted the complainant in the hallway of the house. He was holding a large machete in one hand and a pair of scissors in the other. He shouted at the complainant “what did you ring the pigs for?”. The complainant backed away from Mr Tipuna into a bedroom, where she sat down on the bed. She feared she was going to be assaulted so she covered her head with her arms and lifted her legs up to protect herself.

[5] Mr Tipuna had put down the machete he was holding but kept hold of the pair of scissors. He approached the complainant and stabbed her once in the right leg with the scissors.

[6] The Police (having been alerted by a third party) arrived at the address and knocked on the door. Mr Tipuna told the complainant to pretend that she was having a shower so that the Police would think she had not heard the knock. He hid in a wardrobe where the Police found him after forcing entry into the house. The complainant was taken to…

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 Tipuna v The Queen

Details

AGLC: Tipuna v The Queen [2020] NZHC 1883
Case: [2020] NZHC 1883
Decision Date: 30 July 2020

CaseChat Overview and Summary

Marsden Tipuna was sentenced by Judge Cathcart in the District Court at Gisborne to a term of two years and three months’ imprisonment for assault with a weapon, along with concurrent shorter sentences for possession of an offensive weapon and wilful trespass. Tipuna appealed against the sentence, arguing that it was manifestly excessive as the sentencing Judge attributed an aggravating factor that was not part of the agreed facts and was disputed by Tipuna, and that the Judge had adopted an excessive starting point.

The legal issues before the court were whether the Judge was entitled to draw an inference that Tipuna had brought the weapons to the property, and if the starting point adopted by the sentencing Judge was appropriate. The court found that the Judge was not entitled to draw the inference about Tipuna bringing the weapons to the property without affording an opportunity for a disputed facts hearing. However, the court considered that the starting point adopted by the sentencing Judge was within the available range and not manifestly excessive.

The court concluded that the appeal should be dismissed as the end sentence was within the range available to the sentencing Judge. The final orders were that the appeal is dismissed and the sentence imposed by the District Court at Gisborne is affirmed.

Orders