Vela v R - [2020] NZCA 153

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA217/2019
[2020] NZCA 153

BETWEEN	MALAGI VELA Appellant
AND	THE QUEEN Respondent

Hearing:	21 April 2020
Court:	French, Dobson and Nation JJ
Counsel:	A J Bailey for Appellant M G McClenaghan and B Hawes for Respondent
Judgment:	8 May 2020 at 11 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Following a judge-alone trial in the District Court, Mr Vela was convicted of a charge of causing grievous bodily harm with intent to cause grievous bodily harm and a charge of attempting to pervert the course of justice.[1]
[1]R v Vela [2018] NZDC 21749.
When it came to sentence, the District Court declined jurisdiction and referred disposition to the High Court for consideration of preventive detention.[2] In the High Court, Cooke J decided that the offending did not meet the threshold for preventive detention. Instead, he imposed a finite sentence of ten years’ imprisonment, without any minimum period of imprisonment.[3]
[2]R v Vela DC Christchurch CRI-2016-009-12760, 27 February 2019.
[3]R v Vela [2019] NZHC 714 [Sentencing Notes].
Mr Vela now appeals that sentence.

Facts of the offending

The victim was in a relationship with Mr Vela. They were living together. On Saturday 17 December 2016, she and Mr Vela got into a heated argument after the victim returned home intoxicated. He assaulted her.
On Tuesday 20 December 2016, Mr Vela took the victim to the hospital.
Clinical examination and a CT scan established that she had sustained a significantly fractured jaw bone with severe displacement as well as significant dental trauma and extensive soft tissue swelling. She was hospitalised for four days and underwent surgery involving the insertion of multiple metal plates and screws. She also required replacement of one of her front teeth which had been knocked out during the assault. The treating clinicians indicated that a significant degree of force would have been required to cause the damage to her face.
Post operatively, the victim’s face was very swollen and she had significant nerve damage in her lower jaw. On her last post-operative review on 2 February 2017, the surgeon noted she still had some residual numbness of her lower lip and chin and some weakness of her left facial nerve as well as suffering from limited mouth opening.
In her victim impact statement two years later, the victim stated she was still experiencing tightness in her jaw and that the nerves in some of her bottom teeth had died and the teeth had gone yellow.
After her release from hospital on 24 December 2016, the victim initially claimed to have been assaulted by strangers. However, she eventually told her daughters and the police that Mr Vela was responsible for her injuries.
Mr Vela was arrested and charged with causing grievous bodily harm. He denied any involvement. He was remanded in custody pending trial. The victim obtained a protection order against…

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 Vela v R

Details

AGLC: Vela v R [2020] NZCA 153
Case: [2020] NZCA 153
Decision Date: 8 May 2020 at 11 am

CaseChat Overview and Summary

Malagi Vela appeals against his conviction and sentence for causing grievous bodily harm with intent and attempting to pervert the course of justice. The appeal was heard by the Court of Appeal of New Zealand, comprising French, Dobson, and Nation JJ. The appellant was represented by A J Bailey, while M G McClenaghan and B Hawes appeared for the respondent. The appeal was dismissed on 8 May 2020.

The legal issues in the appeal centered on the starting point for the violent offending and the uplift for the perverting justice charge. The appellant argued that the starting point of eight years for the violent offending was manifestly excessive and that the Court should have considered comparator cases in addition to the guideline decision of R v Taueki. The appellant also contended that the uplift for the perverting justice charge was excessive and that the Court should have considered totality before applying the uplift for previous convictions.

The Court found that the starting point for the violent offending was within the range set out in R v Taueki, and that the domestic context of the offending was a significant aggravating factor. The Court also found that the uplift for the perverting justice charge was appropriate and that the Court did not err in considering totality after applying the uplift for previous convictions. The Court concluded that the ten-year sentence was available to the Judge and dismissed the appeal.

No further orders were made.

Orders