Tuau v R

Case [2013] NZCA 623 6 December 2013

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA281/2013
[2013] NZCA 623

BETWEEN	IORITANA TUAU Appellant
AND	THE QUEEN Respondent

Hearing:	18 November 2013
Court:	Randerson, Heath and Asher JJ
Counsel:	E A Hall for Appellant J E Mildenhall for Respondent
Judgment:	6 December 2013 at 2.00 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Heath J)

The appeal

Mr Ioritana Tuau was charged with one count of wounding with intent to cause grievous bodily harm, arising out of an incident that occurred in the early hours of 15 September 2011. On 26 February 2013, about two weeks before the scheduled trial, he pleaded guilty to that charge and was remanded for sentence, in the High Court at Wellington, on 8 April 2013. On that day, Miller J imposed a term of imprisonment of nine years, with a minimum non-parole period of four years and six months,[1] representing one-half of the finite sentence.
[1]R v Tuau [2013] NZHC 681 at [36] and [38].
Mr Tuau appeals against the finite sentence imposed, on the grounds of manifest excess. He also challenges the minimum sentence of imprisonment, on the grounds that it was unnecessary.

Facts

Mr Robert Bryden and two friends had been drinking alcohol throughout the afternoon on 14 September 2011. That evening, they decided to travel by train from the Kapiti Coast into Wellington. They spent the rest of the night, and the early hours of the next day, at various bars along Courtenay Place and its environs. Much alcohol was consumed.
Just after 3.30 am, on 15 September 2011, the three men began to walk back towards the Wellington Railway Station. As they did so, they came across Mr Tuau. He was arguing with a woman in front of Café Baba. Mr Bryden and his friends stopped. Mr Bryden asked whether Mr Tuau and the woman needed any help. Mr Tuau replied that “we New Zealanders can take care of ourselves”. Seemingly in response to that comment, Mr Bryden hit Mr Tuau. Evidence from by-standers suggests that there might have been a flurry of blows. Whatever happened, the force of the attack stunned Mr Tuau and caused him to stumble across the footpath and fall onto the road. Mr Bryden and his associates continued on, turning into Tory Street.
Mr Tuau was helped to his feet by two males, neither of whom was known to him. With some encouragement from them, all three gave chase to Mr Bryden and his friends. Realising what was happening, Mr Bryden saw an entranceway on the left-hand side of Tory Street. It was the driveway access to the Tory Street entrance of the Tournament Parking car park. At that time of the morning, the doors to the car park were locked. While his friends managed to run off, Mr Bryden was cornered at the entrance to the closed car park. He was confronted by Mr Tuau, and the other two men.
Initially,…

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 Tuau v R

Details

AGLC: Tuau v R [2013] NZCA 623
Case: [2013] NZCA 623
Decision Date: 6 December 2013 at 2.00 pm

CaseChat Overview and Summary

Ioritana Tuau appeals against the sentence of nine years imprisonment, with a minimum non-parole period of four years and six months, imposed by Miller J for an offence of wounding with intent to cause grievous bodily harm. The appeal is against the manifest excess of the sentence and the imposition of a minimum non-parole period. The appellant argues that the starting point of 12 years was too high, that a credit of 25 per cent should have been given for the guilty plea, and that allowances for other mitigating factors were insufficient. The Crown submits that the sentence was within range and that a minimum period of imprisonment was necessary to denounce the offending and to hold the appellant accountable for it. The appeal was dismissed. The Court found that the starting point of 12 years was justified given the aggravating factors of the offence. The Court also found that the total credit of 25 per cent for the guilty plea and remorse was appropriate, and that the effect of the modest discount was largely offset by the generous discount given for provocation. The Court found that a minimum non-parole period was necessary to denounce the offending and to hold the appellant accountable for it, and that the sentence was not manifestly excessive.

Orders