Tutaki v Police - [2015] NZHC 1177

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2015-416-012 [2015] NZHC 1177

BETWEEN
ISAIAH JAMES TUTAKI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 28 May 2015

Appearances:

R Donnelly for Appellant
C R Walker for Respondent

Judgment:

28 May 2015

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

TUTAKI v NEW ZEALAND POLICE [2015] NZHC 1177 [28 May 2015]

[1] Mr Tutaki pleaded guilty in the District Court to a charge of injuring by an unlawful act and two charges of assault. On 20 February 2015, Judge Adeane sentenced Mr Tutaki to an effective term of ten months imprisonment.1 He appeals against sentence on the basis that the Judge erred in principle in imposing the sentence, and that this resulted in an end sentence that was manifestly excessive.

The facts

[2] Mr Tutaki was sentenced on the basis of a summary of facts with which he took no exception. This stated that in the early hours of Saturday 29 March 2014, Mr Tutaki was at a bar in Gisborne. Also present at the bar were three other persons who were drinking in a separate group. Mr Tutaki left the bar shortly after 2.30 am, and the other three men left at the same time with a wider group of associates.

[3] Shortly after leaving the bar, the two groups became involved in a verbal altercation. This led to a physical confrontation in which Mr Tutaki punched one of the members of the other group in the head, thereby knocking him to the ground. Mr Tutaki was then grabbed by one of the members of the opposing group, and received a punch in the face. This knocked him to the ground, but he got up and used his elbow to strike one of the members of the opposing group in the face area. This knocked the victim unconscious. He fell backwards and hit his head on concrete tiles, thereby causing a laceration to the back of his head. Another member of the opposing group then became involved in the fray, and Mr Tutaki punched this person in the mouth. This caused a small bleed to the upper right side of the lip.

[4] The victim who had hit his head on the tiles was initially hospitalised for a cut on the inside of his lip and the laceration to the rear of his head. He was then released, but later returned to hospital where it was found that he had a brain bleed. This required specialist treatment at Waikato Hospital. The second victim required
four stitches to close the wound to the right hand side of his upper lip.

1 R v Tutaki [2015] NZDC 2705.

The Judge’s decision

[5] The Judge gave Mr Tutaki the benefit of the doubt regarding the circumstances in which the altercation arose. He concluded that the appropriate starting point on the lead charge of injuring by an unlawful act was 12 months, and that the assaults on the other two victims should result…

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.

Keep reading for free

Create a free CaseChat account to read Tutaki v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] NZHC 1177
Decision Date: 28 May 2015

CaseChat Overview and Summary

In the High Court of New Zealand, Isaiah James Tutaki appealed against his sentence imposed by Judge Adeane in the Gisborne District Court. Tutaki was sentenced to an effective term of ten months imprisonment for injuring by an unlawful act and two counts of assault. The appellant argued that the sentence was manifestly excessive due to insufficient discount applied for his youth and remorse. The case was heard on 28 May 2015, with R Donnelly appearing for the appellant and C R Walker for the respondent.

The central legal issue was whether the Judge erred in principle by imposing the sentence, resulting in an end sentence that was manifestly excessive. The court had to determine whether the discount applied for mitigating factors such as the appellant's age and remorse was sufficient. The court also had to consider the severity of the injuries inflicted on the victims and compare the sentence with similar cases.

The court held that while the discount for guilty pleas and remorse should have been higher, the overall sentence was not manifestly excessive. Lang J noted that the starting point of 12 months imprisonment was lenient given the circumstances and the severity of the injuries. The court compared the present case with Koloamatangi v Police, where a similar starting point was adopted but resulted in a reduced sentence on appeal due to additional mitigating factors. Despite the arguments by Donnelly, the court found that the sentence in the present case was proportionate and not manifestly excessive.

The appeal against sentence was dismissed. The court affirmed the sentence of ten months imprisonment, noting the mitigating factors but finding that the overall sentence was appropriate given the circumstances and the injuries inflicted.

Orders