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Watene v R

Watene v R

Case [2014] NZCA 357 5 August 2014

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA799/2013
[2014] NZCA 357

BETWEEN	TURE WAIRUA WATENE Appellant
AND	THE QUEEN Respondent

Hearing:	24 July 2014
Court:	O’Regan P, Goddard and Andrews JJ
Counsel:	M B Meyrick for Appellant H W Ebersohn for Respondent
Judgment:	5 August 2014 at 10 am

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Goddard J)

Introduction

The appellant was tried by a jury and found guilty of aggravated robbery pursuant to s 235(b) of the Crimes Act 1961.[1] The trial judge, Judge Dawson, sentenced him to nine years’ imprisonment. He now appeals against conviction and sentence.
[1]R v Watene DC Auckland CRI-2011-044-7913, 30 October 2013.
The appeal against conviction is advanced on the grounds that:
(a)the appellant did not receive a fair trial because he was denied the opportunity to instruct counsel;
(b)the question trail used by the trial Judge was confusing and did not reflect what needed to be proved; and
(c)the trial Judge did not allow Mr Watene to address the jury on issues of sovereignty and jurisdiction.
The appeal against sentence is advanced on the grounds that:
(a)the trial judge sentenced the appellant on findings of fact that were not open to him; and
(b)the starting point identified was out of step with comparable cases.

Factual background

In the early hours of 8 November 2011 the appellant and three associates, one of them armed with a shotgun, entered the front door of an Auckland address and confronted the three occupants who were in the process of leaving for the hospital. One of the occupants, Ms Linda Gov, was in labour at the time. The other occupants were her husband and brother.
All four offenders had disguised their appearance and were wearing gloves. The complainants described the offender who did all of the talking and the giving of orders as having been “noticeably” shorter than his co-offenders.
The offender with the shotgun demanded to know where the occupants kept their money and the short offender threatened to hit Ms Gov’s brother over the head with a stone pestle. The complainants were then moved into a bedroom where they were kept at gun point. Ms Gov was able to dial 111 on her cell phone and police were immediately dispatched to the address. When the short offender discovered police had been called, he threatened to kill Linda Gov and aimed a kick at her head, which was deflected by her husband.
The offenders then left the address, taking with them approximately $1,500 of cash, two cell phones, a laptop, an iPod and various items of jewellery.
A police officer attending the incident gave evidence of observing a motor vehicle leaving from the adjacent street and of pursuing it. The tyres of the fleeing vehicle were spiked and all four occupants then fled on foot into a bush reserve.
A police dog unit located the appellant in the bush reserve. A single barrel…

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 Watene v R

Details

AGLC: Watene v R [2014] NZCA 357
Case: [2014] NZCA 357
Decision Date: 5 August 2014 at 10 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant Ture Wairua Watene appealed against both his conviction and sentence following his conviction for aggravated robbery. The appellant and three associates had entered an Auckland address, confronting the occupants who were leaving for the hospital. The appellant and his associates threatened the occupants with a shotgun and a stone pestle, demanding money. The appellant and his associates then took approximately $1,500 in cash, various items of personal property, and fled the scene. The appellant was subsequently arrested and charged with aggravated robbery. The trial judge sentenced the appellant to nine years in prison. The appellant brought two grounds of appeal against conviction and two against sentence. The appellant argued that he did not receive a fair trial because he was denied the opportunity to instruct counsel. The court found that the appellant had not waived privilege in respect of any legal advice he received and therefore could not properly assess the circumstances in which he came to be unrepresented. The court further found that the appellant was in any event well-informed of his right to instruct a lawyer and had prior experience in the courts. The appellant also argued that the question trail used by the trial judge was confusing and did not reflect what needed to be proved. The court found that the wording of the question trail would not have given rise to any miscarriage of justice and that the jury was unlikely to have found the question trail confusing in the context of the trial. The court also found that the judge’s summing-up would in any event have eliminated any possible confusion over the wording of the first question. The appellant further argued that the trial judge did not allow him to address the jury on issues of sovereignty and jurisdiction. The court found that it was not for the jury to make a decision on jurisdiction and that addressing the jury on the issue was therefore inappropriate. The appellant argued that the trial judge sentenced him on the basis of findings of fact that were not open to him. The court found that the judge was entitled, where the evidence supported it, to reach his or her own view of the facts relevant to sentencing provided such a view was not inconsistent with the verdict. The court also found that the starting point of nine years adopted by the judge was well within the judge’s discretion. The appeal against conviction and sentence was dismissed.

Orders