Tuhura v The King - [2024] NZHC 2232

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2024-409-144

[2024] NZHC 2232

BETWEEN
DION TAVAKA TUHURA

Appellant

AND

THE KING

Respondent

Hearing: 8 August 2024

Appearances:

D J Matthews for Appellant M W Fulton for Respondent

Judgment:

9 August 2024

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 9 August 2024 at 11.45 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

TUHURA v R [2024] NZHC 2232 [9 August 2024]

Introduction

[1] Dion Tuhura pleaded guilty to assault on a person in a family relationship,1 threatening to kill,2 and possession of an offensive weapon (representative).3 On 11 June 2024 he was sentenced by Judge Crosbie to 22 months’ imprisonment. Mr Tuhura now appeals his sentence on the basis it was manifestly excessive and should be substituted with one of home detention.

The facts

Assault

[2] Mr Tuhura and the victim had been in a relationship for five years. On 23 August 2023, Mr Tuhura was at the victim’s address where he awoke agitated. He demanded a ride from the victim, but she refused as she did not have any fuel, nor a warrant of fitness. She suggested a neighbour could drive Mr Tuhura. This made Mr Tuhura more agitated. The victim put her arms up to cover her face. Mr Tuhura yelled at her: “you stupid fucking bitch. You can fucking take me home” and punched the victim in the arm six times. Mr Tuhura alleged the victim had slept with a neighbour. He grabbed her and threw her against a nearby bedside table. The victim fell into a lamp knocking it over. She got up and walked into the lounge and pushed her family violence alarm. Mr Tuhura followed her and said: “are you going to press the button?” The victim was terrified of Mr Tuhura finding out, so pulled the plug from the wall. Mr Tuhura learnt the victim had pushed the button and said: “you fucking bitch.”

Threatens to kill and possession of offensive weapon

[3] The pair returned to the bedroom where Mr Tuhura went to the wardrobe, reached in, and pulled out an air rifle. Mr Tuhura pointed the rifle at the victim then moved closer and placed the barrel of the air rifle against the victim’s right temple, stating: “I’m going to kill you, you stupid bitch”. The victim believed Mr Tuhura was holding a real firearm to her head and that he was going to shoot her. The victim was

1      Crimes Act 1961, s 194A. Maximum penalty: two years’ imprisonment.
2      Crimes Act 1961, s 306. Maximum penalty: seven years’ imprisonment.
3      Crimes Act 1961, s 202A(4)(a) and (b). Maximum penalty: three years’ imprisonment.

crying and was so terrified Mr Tuhura would kill her that she urinated herself. Mr Tuhura put the air rifle down and returned to the wardrobe. Mr Tuhura grabbed a sword and waved it towards the victim in a threatening manner.…

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: [2024] NZHC 2232
Decision Date: 9 August 2024

CaseChat Overview and Summary

Dion Tuhura appeals his sentence of 22 months' imprisonment, imposed for assault, threatening to kill, and possession of an offensive weapon. The High Court was required to determine whether the sentence was manifestly excessive and whether it should be substituted with one of home detention. The court examined the principles of sentencing, including denunciation, deterrence, and accountability, as well as the appellant's rehabilitative prospects. The court found that the severity of the offending, the appellant's history of family violence, and his lack of remorse justified the sentence of imprisonment. The appeal was dismissed, and the appellant was directed to surrender himself to the Department of Corrections.

The sentencing Judge outlined the history between Mr Tuhura and the victim and noted the victim's fear of the appellant. The Judge considered Mr Tuhura's criminal history, which began in the Youth Court, and his participation in rehabilitation programs. The Judge found that the offending was a drawn-out, terrifying event involving the use of two weapons and had tremendous fear on the part of the victim. The dominant principle was deterrence, to send a strong message to Mr Tuhura personally about the importance of trust and safety in a family relationship and an intimate relationship, as well as a similar message to the community that the Courts will respond strongly to significant domestic violence. The Judge considered a sentence of home detention would not satisfy the purposes and principles of deterrence and denunciation. The appellant was sentenced to 22 months' imprisonment.

Orders