[3] The pair got into a verbal argument, at which point Mr Waitai swore at the victim and told her to leave. The victim proceeded to do so, but Mr Waitai stood in front of her, blocking the door, and pushed her in the opposite direction whilst telling her to leave. After doing this a number of times, Mr Waitai stood aside and allowed the victim to exit. The victim took several steps outside and felt an object, possibly a rock, thrown from Mr Waitai’s direction. It hit her back. The object hit her with such force that it caused pain and the victim started crying.

[4] Immediately after the object hit the victim, Mr Waitai walked towards her and placed her in a choke hold, squeezing her neck so she could not speak and could not breathe. He told the victim that he wanted her to “black out”. Mr Waitai released her and the victim began to walk away, at which point Mr Waitai again placed her in a choke hold of the same or similar strength and released the victim after she could not breathe for several seconds. The victim again began to walk to her car, but her path was blocked by Mr Waitai who snatched her keys telling her he will drive her car into the lake. For the third time he put the victim in a choke hold, stopping her breathing. This time he marched her back towards the house while holding her in a choke hold and pushed her down onto an outside table several times. When the victim managed to get up, Mr Waitai again placed her in a headlock and pushed her to the ground.

[5] At this point Mr Waitai’s uncle came and intervened. The victim was allowed to leave some time later. She contacted the police two weeks later.

1 Crimes Act 1961, s 194(b), with a maximum penalty of two years imprisonment.

[6] At the time of the offence Mr Waitai was on bail for an offence apparently relating to a gang-related home invasion.

[7] Initially Mr Waitai was charged with the more serious charge of injuring with intent, which carries a maximum penalty of five years’ imprisonment.2 He initially denied the offending and said…

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 Waitai v R

Details

AGLC: Waitai v R [2014] NZHC 2116
Case: [2014] NZHC 2116
Decision Date: 2 September 2014

CaseChat Overview and Summary

Tama Waitai appeals the sentence of 20 months imprisonment imposed on him in the District Court at Rotorua for one charge of assault by a male on a female. The appeal concerns the severity of the sentence imposed. The appellant submits that the starting point adopted by the sentencing Judge was too high, the uplift for offending while on bail was excessive, and that insufficient discount was given for remorse and the guilty plea. The court assessed the appeal by considering whether the sentence imposed was manifestly excessive and whether there was an error in the sentence. The court found that the starting point was too high, and an uplift of two months for offending while on bail was appropriate. The court found that the appellant had not demonstrated sufficient remorse to warrant a discount. The court also found that the guilty plea discount was appropriate. The appeal is allowed, and the sentence of 20 months imprisonment is quashed and replaced with one of 12 months imprisonment.
The District Court Judge's starting point of 18 months imprisonment was excessive, relative to previous similar cases. The principle of parity in sentencing requires that like cases be treated alike and that the courts attempt to achieve a broad level of consistency in sentencing. None of the cases considered by the court involved a starting point approaching 18 months' imprisonment on a charge of male assaults female involving broadly similar facts to this case. The court found that a starting point of 12 months imprisonment was appropriate. The court also found that an uplift of two months for offending while on bail was appropriate, and that no uplift for previous convictions was warranted. The court found that the appellant had not demonstrated sufficient remorse to warrant a discount. The court also found that the guilty plea discount was appropriate, taking into account all the circumstances surrounding the plea bargain and eventual guilty plea.

Orders