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Waipuka v R

Waipuka v R

Case [2013] NZCA 661 17 December 2013

Sentencing

Criminal Liability

Aggravated & Exemplary Damages

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA123/2013
[2013] NZCA 661

BETWEEN	NICHO ALAN TAMATI WAIPUKA Appellant
AND	THE QUEEN Respondent

Hearing:	18 November 2013
Court:	Randerson, Heath and Asher JJ
Counsel:	P V Paino and S M Bolland for Appellant A Markham for Respondent
Judgment:	17 December 2013 at 10:00 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Introduction

The appellant and an associate were tried by a jury in the High Court for the murder of Phillip Cottrell on 10 December 2011. The appellant was acquitted of murder but convicted of manslaughter. He was later sentenced by the trial Judge, Miller J, to imprisonment for 12 years and 10 months with a minimum period of imprisonment of eight years six months.[1] The associate was acquitted.
[1]R v Waipuka [2013] NZHC 221.
The appellant now appeals against his sentence on three bases:
(a)The 15 year starting point for his sentence was excessive.
(b)The uplift of 12 months adopted by the Judge to recognise the appellant’s previous convictions was excessive.
(c)The minimum period of imprisonment should have been no more than 50 per cent of the finite sentence.
At trial, the appellant admitted causing the death of the victim but denied murder. He accepted he had punched the victim once and contended that his death arose from the victim hitting the pavement or kerb in the street where the assault took place. The Crown’s case was that the victim’s death resulted from a punch followed by kicking or stomping to the head and arms.
A complicating factor was that the victim suffered from a rare condition known as osteogenesis imperfecta. This is a defect in collagen which has the effect of making bones brittle. There was conflicting evidence from medical witnesses called for the Crown and, at sentence, it was necessary for the Judge to make findings of fact for sentencing purposes. Mr Paino submitted that the way in which the Crown’s evidence on this subject was led and the sentencing process was unfair.

Background

On Friday 9 December 2011, the appellant and his co-accused, Mr Robinson, travelled into Wellington city from the Hutt Valley at about 10.00 pm. The Judge found that the appellant was intoxicated and was looking for fights. He boasted to friends that he was keen to knock someone out. Referring to an incident earlier in the evening, the Judge found that the appellant’s boast was no idle statement. Later, the appellant went to an apartment on The Terrace spending some time with two young women. He left the apartment in the early hours of the morning and walked downtown. He made three failed attempts to withdraw money from his bank account.
The appellant then began walking back towards the apartment on The Terrace, his route taking him up the western side of Boulcott Street. The appellant encountered a passerby and challenged him. As the Judge found, the appellant was seeking…

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 Waipuka v R

Details

AGLC: Waipuka v R [2013] NZCA 661
Case: [2013] NZCA 661
Decision Date: 17 December 2013 at 10:00 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal against sentence brought by Niho Alan Tamati Waipuka, who was convicted of manslaughter following the death of Phillip Cottrell. Waipuka was sentenced to 12 years and 10 months imprisonment, with a minimum period of imprisonment of eight years and six months. The appellant challenged the sentence on three grounds: the 15-year starting point was excessive, the 12-month uplift for previous convictions was excessive, and the minimum period of imprisonment should not have exceeded 50 per cent.

In considering the starting point, the Court noted that while the use of extreme violence can be as serious as the use of a weapon, and found that the starting point of 15 years was justified given the appellant's culpability. The Court also found that the 12-month uplift for previous offending was appropriate, given the appellant's history of alcohol and drug abuse and serious violence. Finally, the Court found that the minimum period of imprisonment was justified given the need for accountability, denunciation, and community protection.

The Court dismissed the appeal against sentence, finding that the sentence imposed was not manifestly excessive. The Court noted that the appellant's offending was particularly serious, and the sentence gave full weight to the statutory purposes of denunciation, deterrence, and holding the offender accountable, as well as the protection of the community.

Orders