Tuau v R - [2012] NZCA 146

IN THE COURT OF APPEAL OF NEW ZEALAND

CA322/2011
[2012] NZCA 146

BETWEEN TOA RANGATIRA TUAU
Appellant

AND THE QUEEN
Respondent

Hearing: 26 March 2012

Court: Randerson, Keane and Lang JJ

Counsel: N P Chisnall and J S Gurnick for Appellant
J M Jelas for Respondent

Judgment: 17 April 2012 at 11.30 a.m.

JUDGMENT OF THE COURT

A The appeal against sentence is allowed.
BThe sentence of five years, six months imprisonment is quashed and a sentence of four years, six months imprisonment is substituted.

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REASONS OF THE COURT

(Given by Keane J)

On 28 April 2011 Toa Tuau was sentenced in the District Court, Hamilton, to imprisonment for five years, six months, for wounding his father on 21 October 2010 with intent to cause him grievous bodily harm. Mr Tuau appeals that sentence as manifestly excessive.
Mr Tuau does not challenge Judge Spiller's starting point for sentence: imprisonment for eight years, nine months. He does not, and cannot, dispute that he was seriously violent. He first rendered his father unconscious by blows to the head. Then he stabbed his father in the left eye with a 27 cm boning knife. Very fortunately, his father suffered no significant lasting injury. On this appeal Mr Tuau contends rather, the global discount that the Judge allowed him, 37 per cent, was manifestly inadequate.
In fixing that discount, Mr Tuau contends, the Judge recognised principally, if not exclusively, his guilty plea and the fact that he was previously a person of good character. At age 30, he had no previous convictions. But he contends the Judge should also have allowed him discounts on three related bases: that his father provoked him; that his father had assaulted him from an early age; and that on the day of his offence he was especially vulnerable, he suffers chronic paranoid schizophrenia and was then psychotic.
In advancing his appeal, Mr Tuau relies not just on the materials before the Judge but also, unopposed by the Crown, on the opinion of a clinical psychologist, Ms Raethel, obtained for this appeal. Her opinion is that the abuse Mr Tuau suffered at his father's hands from a young age materially contributed to his offence.

Context

On 21 October 2010, the day of his offence, Mr Tuau, then aged 30, was living, it seems temporarily, in the family home in Hamilton with his father, then aged 50, and some of his 11 brothers and sisters. His mother, aged 48, had died not long before and they were still coming to terms with that loss.
On 21 October at 3 pm, when Mr Tuau and his father were the only adults in the house, the father, who had spent the day drinking alcohol in a sleep-out, came into the house to check on a grandchild. As he passed through the kitchen where Mr Tuau was preparing dinner, Mr Tuau says, he accused him of having been a molester; an aggressive accusation that Mr Tuau found very threatening.
Shortly after, Mr…

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 [2012] NZCA 146
Case: [2012] NZCA 146
Decision Date: 17 April 2012

CaseChat Overview and Summary

Toa Tuau appealed against his sentence of five years and six months' imprisonment, imposed by the District Court for wounding his father with intent to cause grievous bodily harm. The Court of Appeal allowed the appeal and substituted a sentence of four years and six months' imprisonment. The appeal focused on the adequacy of the discount applied to the starting point of the sentence. Tuau argued that the 37% discount applied by the District Court was manifestly inadequate as it did not sufficiently take into account the mitigating factors of provocation, previous abuse by the father, and Tuau's mental illness. The Court of Appeal considered that the Judge should have allowed Tuau a significantly greater discount to recognise why he offended and as seriously as he did. The Court concluded that Tuau was entitled to a 30% discount on these grounds, which would reduce his sentence to six years and one month before applying the discount for his guilty plea. The Court allowed the appeal and substituted a sentence of four years and six months' imprisonment.

The final orders of the Court of Appeal were to allow the appeal against sentence, quash the sentence of five years and six months' imprisonment, and substitute a sentence of four years and six months' imprisonment.

Orders