Tumai v Police - [2019] NZHC 1119

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-000082

[2019] NZHC 1119

BETWEEN
MARCUS TUMAI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 30 April 2019

Appearances:

Julie-Anne Kincade for the Appellant Henry Benson-Pope for the Respondent

Judgment:

21 May 2019

JUDGMENT OF MOORE J

[Appeal against sentence]

RE-CALLED AND RE-ISSUED ON 23 MAY 2019 AT 4:00 PM

This judgment was delivered by me on 21 May 2019 at 4:30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

TUMAI v NEW ZEALAND POLICE [2019] NZHC 1119 [21 May 2019]

Introduction

[1] After pleading guilty to 11 charges, the appellant, Marcus Tumai was sentenced by Judge D J Harvey on 6 March 2019 to a total of two years and eight months’ imprisonment.1

[2]The charges and sentences imposed are set out in the table below:

Charge Sentence Provision

Assault with a weapon
Two years and eight months’

imprisonment
Crimes Act 1961, s 202C(a)

Male assaults female (x 5) One year’s imprisonment Crimes Act 1961, s 194(b)

Assault on a child (x 3) One year’s imprisonment Crimes Act 1961, s 194(a)

Breach of protection order (x 2) One year’s imprisonment Domestic Violence Act 1995, s 49

[3] The essence of Mr Tumai’s appeal is that the Judge erred in failing to give discounts for remorse (as evidenced by a willingness to attend restorative justice) and his efforts at rehabilitation. It is thus submitted the sentence was manifestly excessive and that an end sentence of home detention should have been imposed.

The offending

[4] The principal victim of Mr Tumai’s offending was his long term partner, G. G has six children; four with Mr Tumai and two from a previous relationship. The child victim is D. He was Mr Tumai’s stepson. Over the course of the offending D was aged between 8 and 11 years.

[5] The offending for which Mr Tumai was sentenced covers a period of approximately four years between August 2013 and August 2017. However, with the exception of the first charge in time (assault on a child) the offending occurred during the last 20 months of that period.

1 Police v Tumai [2019] NZDC 4174.

[6] The nine violent offences spanned seven separate occasions. I turn now to examine each in chronological order.

Assault on a child

[7] Between 1 August 2013 and 16 August 2016 Mr Tumai punched D in the shoulder. On another occasion he struck him with a jandal.

Assault with a weapon and male assaults female

[8] On 4 July 2016 Mr Tumai was at home with G and their three daughters. An argument arose. Fearful, G fled the house. Mr Tumai pursued her outside and threw a cricket bat at her legs. G was knocked to the ground where she was kicked and punched. Then Mr Tumai grabbed her by the hair and dragged her inside. There he again kicked her and hit her. G escaped. Mr Tumai pursued…

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 1119
Decision Date: 21 May 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Marcus Tumai appealed against the sentence he received following his guilty plea to 11 charges, which included assault with a weapon, male assaults female, assault on a child, and breach of a protection order. The original sentence was two years and eight months’ imprisonment. Tumai argued that the Judge failed to give discounts for his remorse and efforts at rehabilitation, and that the sentence was manifestly excessive. The Court had to determine whether the Judge erred in not giving discounts for remorse and rehabilitation, and whether the sentence was appropriate. The Court found that while Tumai had made efforts towards rehabilitation, there was no evidence of genuine remorse beyond what was implicit in his guilty pleas. The Court also found that the starting point for sentencing was appropriate, but an eight per cent discount for rehabilitation was justified. The final sentence, after applying the discount and the guilty plea discount, was two years and five months’ imprisonment. The Court allowed the appeal, substituting the original sentence with the new sentence, but found that home detention would not have been appropriate.

Orders