Legal Research
Cases
Wairau v R

Wairau v R

Case [2015] NZCA 215 5 June 2015

Aggravated & Exemplary Damages

Type to search within this case.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA696/2014
[2015] NZCA 215

BETWEEN	MAURICE TEMAAKI WAIRAU Appellant
AND	THE QUEEN Respondent

Hearing:	14 May 2015
Court:	Randerson, Courtney and Kós JJ
Counsel:	Appellant in Person B D Tantrum and J V Barry for Respondent
Judgment:	5 June 2015 at 11:30 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Kós J)

A week before Christmas 2013, Mr Wairau’s partner of 11 years left their home in Palmerston North, taking their three children with her. She had entered a relationship with another man. He lived in Hastings. She took the children there and moved in with him.
Mr Wairau was very stressed about this for three days. An arrangement he believed he had made with his partner to return the children to him for Christmas fell through. Something in Mr Wairau gave way. He set fire to the family home in Palmerston North, travelled to the man’s address in Hastings, and in the middle of the night broke the door down and stabbed him with a knife.
Mr Wairau was charged with attempted murder, wounding with intent to cause grievous bodily harm,[1] aggravated burglary and arson. He pleaded guilty to all charges other than attempted murder. The jury acquitted him of that charge.
[1]An alternative charge to the attempted murder charge.
Thomas J sentenced him to nine years and four months’ imprisonment.[2]
[2]R v Wairau [2014] NZHC 2701.
The sole issue in this sentence appeal is whether the Judge should have adopted a lesser starting point in sentencing Mr Wairau on the lead charges he had pleaded guilty to, wounding with intent to cause grievous bodily harm and aggravated burglary. Mr Wairau says the seriousness of his offending is mitigated by reason of provocation. The conduct of the victim is of course something the sentencing Judge must consider under s 9(2)(c) of the Sentencing Act 2002.

Background

We draw the factual background largely from the Judge’s sentencing notes.[3]
[3]No disputed facts hearing was sought.
Mr Wairau and his partner, Ms Malton, had been in a relationship for about 11 years. They lived in Palmerston North with their three children. At the time of offending, the children were aged 10, 9 and 6. Mr Wairau did not work. He cared for the children. Ms Malton worked as a teacher at a youth justice facility.
In June 2013 Ms Malton entered a relationship with Mr Tiuka. It appears she was fairly open with Mr Wairau about this. She continued to live with Mr Wairau.[4] Mr Wairau attempted to end the new relationship. His efforts included complaining to Mr Tiuka’s employer.
[4]The summary of facts states that the relationship between Mr Wairau and Ms Malton ended in June 2013. That is plainly wrong. The Judge had heard the evidence of the witnesses, and her factual account appears to be largely correct. We note that Mr Wairau did not give evidence, but he made…

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 Wairau v R

Details

AGLC: Wairau v R [2015] NZCA 215
Case: [2015] NZCA 215
Decision Date: 5 June 2015 at 11:30 am

CaseChat Overview and Summary

In Wairau v R, the Court of Appeal considered an appeal against sentence brought by Maurice Temaaki Wairau. Mr Wairau had pleaded guilty to charges of wounding with intent to cause grievous bodily harm, aggravated burglary, and arson, but was acquitted of attempted murder. The Court was asked to determine whether the sentencing judge had erred in not adopting a lesser starting point for sentencing on the lead charges, arguing that the seriousness of his offending was mitigated by provocation. The court found that the sentencing judge had properly considered the conduct of the victim under s 9(2)(c) of the Sentencing Act 2002 and had correctly found that the offending did not fall within the scope of provocation. The appeal against sentence was dismissed, and the original sentence of nine years and four months' imprisonment was upheld. The Court of Appeal found that the overall sentence was within the available range and was not manifestly excessive.

Orders