Tuuta v R - [2019] NZHC 2799

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF VICTIMS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-092-4624

[2019] NZHC 2799

THE QUEEN

v

ARMISTACE POTENE HAYDEN TAMAHOU

Hearing: 31 October 2019

Counsel:

L Radich for Crown

L Taimalelagi and M Allen for Defendant

Sentence:

31 October 2019

[REDACTED] SENTENCING NOTES OF WHATA J

Solicitors: Kayes Fletcher Walker, Manukau

Public Defence Service, Manukau

R v TAMAHOU [2019] NZHC 2799 [31 October 2019]

[1] Mr Tamahou, you pleaded guilty following a sentencing indication in respect of two charges of burglary, one charge of indecent assault and one charge of assault with intent to commit sexual violation.

[2] In my sentencing indication I indicated a nominal sentence of four years and eight months’ imprisonment without regard to personal mitigating factors. I reserved my position on whether I should impose an MPI or preventative detention.

[3] I turn then to your sentence. It will be in five parts. First, I will set out the facts of your offending. Second, I will describe your personal circumstances. Third, I will summarise the victim’s statement. Fourth I will set out my assessment of your final sentence. Finally, I will impose the sentence.

Facts

[4] You pleaded guilty to the following summary of facts. There are two episodes of offending, the first in March and the second in April 2018. Dealing with the March 2018 offending; at around 2.00 am on 19 March 2018, you went to the complainant’s address. You were not wearing anything at the time and you were barefoot. Your movements activated a security light and at about the same time the occupant of the house heard a noise near the front door. The occupant looked out the window and saw you with both your hands around your face and up against the window, while you looked into the address.

[5] The April offending was as follows. Between 5.00 and 6.00 am on 28 April 2018, you entered the victim’s address through a secured back door and approached the victim who was asleep on her stomach in the lounge. You grabbed and squeezed the victim’s bottom and tugged on the victim’s pants, in an attempt to pull them down. The victim woke up to find you squeezing her bottom and tugging her pants. You then then stood over her, pinned her arms down and placed your hand over her mouth. Using your other hand, you reached down and started playing with the victim’s vagina from the outside of her pants and tried to penetrate her vagina with your fingers through her pants. You were unable to penetrate her vagina as her pants prevented you from doing so. You were eventually chased from the house by the victim’s brother.

Personal History

[6] I turn then to your personal circumstances. I have the benefit of a PAC report, a s 27 report and…

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 Tuuta v R

Details

AGLC: Tuuta v R [2019] NZHC 2799
Case: [2019] NZHC 2799
Decision Date: 31 October 2019

CaseChat Overview and Summary

The case of Tuuta v R involved Armistace Potene Hayden Tamahou, who pleaded guilty to multiple charges including burglary, indecent assault, and assault with intent to commit sexual violation. The High Court of New Zealand, Auckland Registry, presided over the sentencing hearing. The primary legal issues were to determine the appropriate sentence for Tamahou, considering his personal circumstances, the severity of the offences, and the need for any form of preventive detention or minimum period of imprisonment (MPI).

The court began by outlining the facts of the offending, which involved two instances of burglary and a sexual assault. It then examined Tamahou's personal history, including his traumatic upbringing, gang involvement, and substance abuse. Reports from psychologists and the Probation and Aftercare Service (PAC) were instrumental in understanding Tamahou's background and potential for rehabilitation. The court also considered the victim impact statement, which highlighted the severe emotional harm caused to the victim.

In assessing the sentence, the court started with a nominal sentence of four years and eight months, considering the nature and seriousness of the offences. The court then applied discounts for personal circumstances, systemic deprivation, and remorse, reducing the sentence to three years and nine months. The court decided against preventive detention, noting that focused rehabilitation could still manage Tamahou's risk of reoffending. However, it imposed an MPI of 50 percent, or one year and eleven months, to ensure accountability and public protection.

The final orders included a sentence of three years and nine months for the charge of assault with intent to commit sexual violation, with a minimum period of imprisonment of one year and eleven months. For the charge of indecent assault, the court imposed two years to be served concurrently, and for the charges of burglary, it imposed one year and six months and six months respectively, all to be served concurrently with the primary sentence. The court highlighted the importance of cultural understanding in sentencing and noted it would revisit the s 27 report in future proceedings.

Orders