Whakaara v The Queen - [2012] NZHC 784

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2012-441-0007 [2012] NZHC 784

ANTHONY LEE TE WHAKAARA
Appellant
v

THE QUEEN
Respondent

Hearing: 24 April 2012

Counsel: RD Stone for Appellant
CR Walker for Respondent

Judgment: 24 April 2012

ORAL JUDGMENT OF TOOGOOD J

Solicitors:
RD Stone, Souness Stone Law Partnership, Hastings: Richard@sounessstone.co.nz
CR Walker, Elvidge & Partners, Napier: Clayton.Walker@elvidges.co.nz

TE WHAKAARA V R HC NAP CRI-2012-441-0007 [24 April 2012]

[1] Anthony Lee TeWhakaara has appealed against a sentence of 18 months’

imprisonment imposed upon him by Judge Adeane in the District Court at Napier on

9 February 2012, after pleading guilty to a charge of injuring with intent to cause grievous bodily harm. He was sentenced at the same time, to one month’s imprisonment, for breaching a community work order.

[2] The appeal was filed late but there has been no objection by the Crown to his being granted leave to appeal out of time.

Background

[3] The Judge described the facts as follows:[1]

[2] The facts of the matter are that the complainant is a doorman at a local bar. He is, in the course of his work, vulnerable accordingly. He had no prior association with the defendant. On the night in question, back in October [2011], Mr Te Whakaara was out drinking with his mates. He now tells the probation service that he had also consumed some P. They drove to Hastings. The defendant walked towards the bar. The complainant stopped him because of his unsatisfactory dress and told him that he could not come in. The defendant at that stage was wearing a singlet, apparently, but also steel-capped boots. He threatened the victim when he was barred entry, lunged at him, punched him to the head causing him to fall and punched him against after he had lost his balance. The defendant was pulled away by bystanders. He then stripped off his jacket and returned to the fray and stomped on the victim’s head. This result in abrasions to the man’s face, lacerations to his eye lid and bruising and also carried with it, obviously, the risk of more serious harm.

[1] R v Te Whakaara DC Napier, CRI-2011-020-3639, 9 February 2012, at [2]..

[4] As he was required to do by s 86B of the Sentencing Act 2002 (“the Act”), the Judge administered the first warning when he entered the appellant’s conviction of the Stage-1 offence of injuring with intent to cause grievous bodily harm.[2]

The District Court’s approach to the sentencing

[2] Sentencing Act 2002, s 86A

[5] In discussing the factors leading to his assessment of the appropriate sentence, the Judge noted that the appellant had no relevant previous convictions for violence and that he was “only” 25 years old. The Judge noted that it had been

recorded by the Probation Service that the appellant wished to make reparation and improve himself and that Mr TeWhakaara was remorseful.

[6] The Judge went on to say, however, that the appellant had two previous…

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 Whakaara v The Queen

Details

AGLC: Whakaara v The Queen [2012] NZHC 784
Case: [2012] NZHC 784
Decision Date: 24 April 2012

CaseChat Overview and Summary

Anthony Lee Te Whakaara appealed against a sentence of 18 months’ imprisonment imposed by Judge Adeane in the District Court at Napier on 9 February 2012, after pleading guilty to injuring with intent to cause grievous bodily harm. Te Whakaara was sentenced at the same time, to one month’s imprisonment, for breaching a community work order. The appeal was filed late but there has been no objection by the Crown to his being granted leave to appeal out of time. The High Court found that the District Court had erred in its approach to sentencing. The court held that the District Court had failed to properly consider the principles of sentencing and the appellant’s motivation for change. The High Court substituted the sentence of imprisonment with a sentence of home detention for six months, to commence on 30 April 2012. The appellant will be subject to special conditions including residing at a specified address, undertaking an appropriate addiction programme, and abstaining from the consumption and possession of alcohol and illicit drugs for the duration of his sentence of home detention.

Orders