Tuhiwai v R - [2012] NZCA 209

IN THE COURT OF APPEAL OF NEW ZEALAND

CA737/2011
[2012] NZCA 209

BETWEEN WILLIAM TUHIWAI
Appellant

AND THE QUEEN
Respondent

CA662/2011

AND BETWEEN HAYDEN MARTIN
Appellant

AND THE QUEEN
Respondent

Hearing: 15 May 2012

Court: Randerson, Keane and Asher JJ

Counsel: L J Postlewaight for Appellant Tuhiwai
A B Fairley for Appellant Martin
K A L Bicknell for Respondent

Judgment: 25 May 2012 at 11.30 a.m.

JUDGMENT OF THE COURT

AThe appeal by Mr Tuhiwai against sentence is allowed. The sentence of nine years imprisonment is quashed and a sentence of seven and a half years imprisonment is substituted.
BThe appeal by Mr Martin against sentence is allowed. The sentence of four years imprisonment on the charge under s 188(2) of the Crimes Act 1961 is quashed and a sentence of three years is substituted on that charge. The cumulative sentence of 16 months imposed for the separate offending remains in place.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Introduction

The appellants were tried in the District Court at Whangarei before a jury and Judge David Harvey for violent offending resulting in serious injury to a young man. Each faced jointly laid charges under ss 188(1) and (2) of the Crimes Act 1961 and a third charge of robbery which is no longer at issue.
The appellant Mr Tuhiwai was convicted under s 188(1) of wounding the victim with intent to cause grievous bodily harm. He was sentenced by Judge Harvey to nine years imprisonment.[1]
[1] R v Tuhiwai DC Whangarei CRI 2009-088-5461, 21 September 2011.
The appellant Mr Martin was acquitted of the charge under s 188(1) but was convicted of a lesser charge under s 188(2) of the Crimes Act of wounding the victim with intent to injure him. Judge Harvey sentenced Mr Martin to four years imprisonment on that charge. He was also sentenced for separate offending to 16 months imprisonment. Judge Harvey ordered this was to be served cumulatively on the four year term for the offending under s 188(2). This resulted in a total effective term of five years four months imprisonment.[2]
[2] R v Martin DC Whangarei CRI 2009-088-5461, 21 September 2011.
Mr Tuhiwai initially appealed against both conviction and sentence but now pursues only the sentence appeal. Mr Martin also appeals against his sentence on the charge under s 188(2). There is no challenge to the additional sentence of 16 months for the separate offending.

The facts

The victim was part of a group of young people who had been to a dress-up party. In the early hours of the morning of 7 November 2009 in Whangarei township they encountered another group of young men of which Mr Tuhiwai and Mr Martin were members. It appears that the second group took umbrage at some comments made by the first group and an altercation took place. The Judge found that Mr Tuhiwai swung a baseball bat at the victim but it missed and hit someone else. The victim was carrying a cane…

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 Tuhiwai v R

Details

AGLC: Tuhiwai v R [2012] NZCA 209
Case: [2012] NZCA 209
Decision Date: 25 May 2012

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard appeals against sentences imposed on William Tuhiwai and Hayden Martin following their convictions for violent offending against a young man, which resulted in serious injury. Tuhiwai was convicted under section 188(1) of the Crimes Act 1961 for wounding with intent to cause grievous bodily harm, while Martin was convicted under section 188(2) for wounding with intent to injure. Both were sentenced to imprisonment by Judge David Harvey in the Whangarei District Court. Tuhiwai was sentenced to nine years, and Martin to four years imprisonment, with a further 16 months for separate offending, making his total sentence five years and four months. Tuhiwai appealed against both conviction and sentence, while Martin appealed only against his sentence.

The primary legal issue before the Court of Appeal was whether the District Court had applied the correct principles in sentencing Tuhiwai and Martin, and whether the sentences imposed were appropriate in the circumstances of the case. The Court was required to determine whether the sentences were excessive and whether they adequately reflected the seriousness of the offending, the culpability of the offenders, and the need for denunciation and deterrence.

In its judgment, the Court found that the District Court had erred in applying the sentencing principles set out in R v Taueki and R v Harris. While acknowledging the seriousness of the attack and the need for denunciation and deterrence, the Court found that the starting points adopted by the District Court were too high. For Tuhiwai, the Court considered the offending to be close to the top end of band 2 of Taueki, rather than band 3, and reduced his sentence to seven and a half years. For Martin, the Court found that the District Court had not adequately distinguished between his role and that of Tuhiwai, despite Martin's acquittal of the more serious charge under section 188(1). The Court reduced Martin's sentence to three years for the charge under section 188(2), while maintaining the additional 16 months for the separate offending.

In conclusion, the Court of Appeal allowed the appeals against sentence for both Tuhiwai and Martin, substituting the sentences imposed by the District Court. Tuhiwai's sentence of nine years imprisonment was reduced to seven and a half years, while Martin's sentence of four years imprisonment on the charge under section 188(2) was reduced to three years. The additional 16 months for separate offending in Martin's case remained in place and was to be served cumulatively with the substituted sentence.

Orders