R v Te Aonui CA438/97 [1998] NZCA 282 (24 February 1998)

Last Updated: 31 December 2023

IN THE COURT OF APPEAL OF NEW ZEALAND CA438/97

THE QUEEN

V

JOSEPH OLYMPUS TE AONUI

Coram: Eichelbaum CJ Henry J Thomas J

Hearing: 24 February 1998

Counsel: B S Yeoman for Appellant

J C Pike for Crown

Judgment: 24 February 1998

JUDGMENT OF THE COURT DELIVERED BY HENRY J

The appellant was convicted following trial in the District Court in Invercargill on one count of wounding with intent to cause grievous bodily harm. He was sentenced to 7 years imprisonment, and now appeals both conviction and sentence.

The victim, Michael Walsh, suffered knife wounds in an incident which took place in the early hours of the morning of 19 July 1997 at an address in Invercargill where he was then living. Walsh and the appellant were known to each other, and had both consumed a considerable quantity of liquor during the course of this particular evening. Walsh was unable to recall how he received his injuries, or what

happened after he and this group, including the appellant, had returned to the residence following their earlier consumption of liquor. The evidence discloses that a number of persons were present at the address, and that at one stage a fight broke out between the appellant and Walsh. The appellant, who had possession of a knife, was seen to lunge at Walsh who held his hand up to protect himself and as a result received a laceration across the palm of his left hand. Walsh then went into his bedroom, but was immediately followed by the appellant, who came out again very shortly afterwards. Walsh was then found to have suffered a stab wound to the lower chest, and was later taken to hospital. On coming out from the bedroom, the appellant was observed to be angry and told several of those present in effect to say that they had not seen him. He left the house. There was no eye witness to the incident in the bedroom where Walsh received the stab injury. There was uncontradicted evidence that the appellant made admissions to persons shortly after the incident to the effect that he had stabbed Walsh with a knife. He denied any involvement when interviewed by the police. He did not give evidence at trial. The defence was lack of intent.

The hand injury was described as superficial. It measured about 10cm in length, and did not involve any nerves, blood vessels or tendons. The stab wound to the chest was approximately 2½cm in depth. It did not enter the chest cavity and caused no injury to any internal organ. Walsh was discharged from hospital the same day after the wounds had been suitably treated. Although there was some resulting discomfort from both wounds, and for a time restriction of movement in the hand, there are no long term consequences.

Conviction

Legal aid was refused in respect of the appeal against conviction. The notice of appeal refers only to the credibility of witnesses being disputed, and to the existence of statements taken on the day of the incident which it is claimed were “withheld from the trial”. Although Mr Yeoman has advised the Court that he has raised the issue of the conviction appeal with the appellant there has been no further

development or elaboration of the grounds. We have no concern as to the correctness of the verdict.

Sentence

The appellant is now aged 22 years. He has previous convictions, including one for assault with a weapon and two of wounding with intent. He was on parole at the time of the present offending. The pre-sentence report shows the appellant had what the sentencing Judge described as a bleak history, having been raised in the environment of the Mongrel Mob. Aggravating features of the offence were identified as premeditation, intoxication, pursuit of the victim after the initial strike, and the delivery of a potentially fatal blow. The Judge took the view that what he described as the extreme seriousness of the case, taken against the background of aggravating features called for a strong deterrent sentence.

In R v Hereora [1986] 2 NZLR 164 a sentence of one year was increased to three years imprisonment on a Solicitor-General’s appeal for the use of a knife on a charge of wounding with intent to cause grievous bodily harm. The Court observed that three to five years for such cases were then being upheld. In R v Nicholson (CA490/96 17 March 1997) it was observed that four to six years could be justified for very serious stabbings. More recently in R v Arinizi (CA280/97 25 November 1997) four years was seen as “plainly justified on a precedent formula” for a stabbing involving injury to the victim’s chest, the wounds being described as superficial in medical terms. The reduction in that case to three years in view of the personal circumstances is not presently relevant.

Although the deliberate infliction of injury with a knife must be regarded as serious, it is still necessary to keep the particular offending, and its actual consequences, in proper perspective. Having regard to the general level of sentences approved or imposed by this Court in this area of offending, the absence of more serious injury, fortuitous as it may have been indicates that seven years is beyond the range properly available, even allowing for the previous offences of violence and the

need for deterrence. We are persuaded that in all the circumstances the sentence was excessive.

The appeal against sentence is allowed, the sentence of seven years imprisonment is quashed, and a sentence of five years is substituted. The appeal against conviction is dismissed.

Solicitors

B S Yeoman, Lower Hutt, for Appellant Crown Law Office, Wellington, for Crown