Tuahuru v Police - [2019] NZHC 1444

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI 2018-419-0028

[2019] NZHC 1444

BETWEEN
HARRY ANDREW ROBERTS-TUAHURU

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 24 June 2019

Appearances:

J E Tarrant for the appellant

S F Gilbert for the respondent

Judgment:

24 June 2019

ORAL JUDGMENT OF JAGOSE J

Counsel/Solicitors:
J E Tarrant, Barrister, Hamilton Almao Douch, Hamilton

ROBERTS-TUAHURU v NEW ZEALAND POLICE [2019] NZHC 1444 [24 June 2019]

[1] At a judge-alone trial in the Morrinsville District Court on 1 October 2018, Judge MLSF Burnett found Mr Roberts-Tuahuru guilty of dangerous driving,1 reckless driving,2 two charges of common assault,3 and two charges of assault with a weapon.4 The Judge delivered her reasons on 15 October 2018.5

[2] On 21 March 2019, Judge Burnett sentenced Mr Roberts-Tuahuru to two years and six months’ imprisonment on those charges, together with two further charges for offending on bail – common assault, and breaching bail – to which he had pleaded guilty.6 Mr Roberts-Tuahuru was disqualified from driving for two years and ordered to pay $891 in reparation.

[3]Mr Roberts-Tuahuru now appeals against both conviction and sentence.

Background

[4] The principal charges arose from a serious incident of so-called ‘road rage’. Mr Roberts-Tuahuru’s response to being overtaken by a Mercedes travelling in excess of the 100 kilometre per hour speed limit was to re-overtake it at 130-140 kilometres an hour, swerving from side to side of the road including in the gravel at its edge. This gave rise to a charge of dangerous driving.

[5] In the face of oncoming traffic, Mr Roberts-Tuahuru continued to overtake a Honda, the driver of which had to brake to avoid collision, and signalled his disapproval by sounding the car’s horn and flashing its lights. Mr Roberts-Tuahuru then slewed to a halt in the middle of the lane, forcing the Honda to a stop behind him, and walked back to it, gesturing and yelling at its occupants. This gave rise to two charges of assault and one charge of reckless driving.

[6] At a break in oncoming traffic, the Honda drove around Mr Roberts-Tuahuru. He got back in his vehicle, and pursued it. On catching up, now in a 70 kilometre per

1      Land Transport Act 1988, s 35(1)(b). The maximum penalty is three months’ imprisonment or a
$4500 fine.
2      Section 35(1)(a). The maximum penalty is three months’ imprisonment or a $4500 fine.
3      Crimes Act 1961, s 196. The maximum penalty is imprisonment of one year.
4      Section 202C. The maximum penalty is five years’ imprisonment.
5      Police v Roberts-Tuahuru [2018] NZDC 23315.
6      Police v Roberts-Tuahuru [2019] NZDC 5173.

hour zone approaching Morrinsville, he pulled alongside and seemingly deliberately “rammed” the Honda, at least twice and sufficiently to put it into the road’s verge alongside a deep ditch. This gave rise to the two charges of assault with a weapon.

Conviction appeal

—grounds of appeal

[7]Mr Roberts-Tuahuru says the Judge erred in:

(a)finding beyond reasonable…

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: [2019] NZHC 1444
Decision Date: 24 June 2019

CaseChat Overview and Summary

The Court heard an appeal by the appellant, Harry Andrew Roberts-Tuahuru, against both his conviction and sentence. The appellant was found guilty by the Morrinsville District Court of various charges including dangerous driving, reckless driving, common assault, and assault with a weapon, and sentenced to imprisonment. The appellant appealed against his conviction and sentence. The legal issues were whether the appellant's conviction was erroneous and whether his sentence was manifestly excessive. The Court held that the appellant's conviction was not erroneous as the Judge was not wrong to find the appellant guilty of common assault, and that the refusal of the Judge to allow submissions at the conclusion of the trial was not so gross, so persistent, or so prejudicial, or so irremediable as to establish the qualifying unfairness. The Court also held that the appellant's sentence was not manifestly excessive as the appellant's culpability for the balance of the offending could easily uplift 18 months on the vehicular assault by one-third to 24 months, particularly when viewed in the context of a five-year maximum. The appeal against conviction and sentence was dismissed.

The Court dismissed the appellant's appeals against conviction and sentence.

Orders