KAWAU v NEW ZEALAND POLICE [2018] NZHC 2508

KAWAU v NEW ZEALAND POLICE [2018] NZHC 2508 [25 September 2018]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2018-412-000013[2018] NZHC 2508BETWEEN CHARLIE JUNIOR KAWAUAppellantAND NEW ZEALAND POLICERespondentHearing: 24 September 2018Appearances: S G Vidal for AppellantR P Bates for RespondentJudgment: 25 September 2018JUDGMENT OF DUNNINGHAM JIntroduction[1] The appellant, Mr Kawau, was convicted of wounding with intent to causegrievous bodily harm1. On 6 August 2014, he was sentenced to five years andseven months imprisonment by Judge Phillips.2 A minimum period of imprisonmentof three years, six months was also imposed. Mr Kawau appeals his sentence, on thebasis that the Judge assumed that the victim's injuries included loss of her eye whenthis was not, in fact, the case.[2] Given the time that has elapsed since sentencing, Mr Kawau also seeks leaveto appeal his sentence out of time.1 Crimes Act 1961, s 188(1).2 R v Kawau DC Dun CRI-2014-012-001486 [6 August 2014].Background facts[3] Mr Kawau had, at the time of the offending, been in a relationship with thevictim for approximately 18 months. The pair had a history of domestic violence andMr Kawau had previously been convicted of domestic violence offences against thevictim. He also has some 74 convictions, made up of a raft of violent offences,including assaults against females, police and members of the public, along withpossession of an offensive weapon.[4] On the morning of 18 May 2014, Mr Kawau and the victim had an argument.The victim ran to a neighbouring address in fear, trying to raise the alarm. She wasobserved by the occupant of the address to be physically shaking and scared.[5] Between 19 and 20 May 2014 the victim was violently assaulted by Mr Kawau,who repeatedly struck her about the head, face and eyes, body and arms. The victimwas taken to Dunedin hospital by Mr Kawau at approximately 9.00am on 20 May.[6] The victim had severe bruising and swelling to her head, face and particularlyher eyes. Her right eye was swollen almost completely shut. The victim had fracturedbones in her left wrist and required a plaster cast.[7] The victim was discharged from hospital on the evening of the 20 May.However, over the ensuing days suffered ongoing pain and nausea from her injuries tothe extent that she was required to be re-admitted to hospital for further treatment. Thedamage to the victim's right eye was such that she has lost sight in it.[8] When questioned by police, both the victim and Mr Kawau said she wasattacked by a group of unknown females who had been at her address. The victimwent along with this story for some time. Mr Kawau later admitted to causing theinjuries and pleaded guilty to the charge.District Court decision[9] Judge Phillips imposed an overall sentence of 5 years 7 months imprisonment.That sentence was arrived at by reference to the tariff decision of R v Taueki.3[10] His Honour identified the features of the offending as including the seriousnessof the injury; the extreme violence involved; the attack was directed to the head; thevulnerability of the victim; and the offending occurring within her own home. On thatbasis, he set a starting point in the middle of Band 2 of Taueki and adopted a startingpoint of seven and a half years.[11] Judge Phillips uplifted the starting point by nine months to reflect an extensiveand relevant criminal history. That uplift reflected 10 per cent of the overall startingpoint. Judge Phillips allowed a full credit of 25 per cent for the appellant's guilty pleaand a further 10 per cent for remorse and the appellant's own background.[12] That left an end sentence of five years and seven months imprisonment.[13] The Judge also considered the standard non-parole period of one third of thesentence would be insufficient to hold Mr Kawau accountable for the harm done; andto achieve deterrence and denunciation, and protection of the community. The Judgeset a non-parole period of three years and six months.Principles on appeal[14] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011, and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.4 It is only appropriate for this Court to intervene and substitute its ownviews if the sentence being appealed is "manifestly excessive" and not justified by therelevant sentencing principles.53 R v Taueki [2005] 3 NZLR 372 (CA).4 Criminal Procedure Act 2011, ss 250(2) and 250(3).5 Ripia v R [2011] NZCA 101 at [15].Leave to appeal out of time[15] Mr Kawau seeks leave to appeal his sentence out of time. Section 248 CriminalProcedure Act 2011 requires a notice of appeal to be filed within 20 working days afterthe date of the sentence appealed against but the appeal was filed almost four yearsafter the sentencing decision.6[16] The overriding consideration for the Court in deciding whether to grant anextension of time is whether the interests of justice support an extension.7 The Courtof Appeal said in R v Slavich, that extension of time applications will invariably reduceto two questions. First, why the appeal was filed late? Second, what merit, if any,does the prospective appeal point appear to have?8[17] Mr Kawau has filed an affidavit (albeit at this stage the Court has not receiveda sworn copy on file) which sets out the circumstances which led to the filing of hisappeal some four years late.[18] Mr Kawau contends that he pleaded guilty because he felt remorseful onhearing that the victim had surgery to remove her right eye. In his affidavit, Mr Kawauexplains he learned from his mother sometime after the sentencing that the victim hasnot had her eye removed. Mr Kawau seeks leave to appeal out of time on the basis ofthis new information. He also explains that, on hearing the news from his mother, hetried to engage a lawyer to assist him with the appeal, which included contacting hisoriginal lawyer, a lawyer in Auckland (which the Legal Services Agency refused tofund because of travel costs), and he was only able to find further counsel when hewas transferred down to Invercargill Prison (although it is not clear when thisoccurred).[19] If accepted at face value, the combination of receiving information whichsuggests the facts relied on for sentencing were wrong, and the difficulty of instructingcounsel from prison, might be sufficient to grant leave to appeal if the Court was alsosatisfied of the merits of the appeal. However, for the reasons discussed below, I do6 Criminal Procedure Act 2011, s 248.7 Mikus v R [2011] NZCA 298 at [26].8 R v Slavich [2008] NZCA 116 at [14].not consider the appeal is meritorious and, for that reason alone, I would decline leaveto appeal.Merits of the appeal[20] The appeal was initially advanced on the ground that the facts relied on forsentencing were incorrect. The summary of facts read as follows:As a result of the attack, the severity of the damage caused to the victim's righteye is such that she has lost her sight in this eye. She requires a completeremoval of her right eye and a prosthetic to be put in.[21] When sentencing the appellant the Judge referred to the fact that she has "lostthe sight of her right eye, which is a tragedy for her",9 and said "the victim's qualityof life is diminished forever by the loss of the sight in one eye".10[22] Mr Kawau's understanding however was that her eye had been surgicallyremoved and when he found out it had not been, he made the decision to appeal.[23] The Crown has made further enquiries as to the position. It has a statementfrom the victim where she explains that:Medical professionals have sought my consent to remove my damaged eye,however at the time I chose not to follow through with this. I wanted to hangon to the hope that somehow my sight would return.[24] However, she goes on to explain that her damaged eye has deteriorated inphysical appearance and "I now wear an eye patch to hide my eye from the gaze ofother people as my eye has shrunk in size". Her optometrist confirms that the righteye has "no functional vision, it is blind. The eye turns upward and outward".[25] In my view, no matter what Mr Kawau's understanding, it is clear that theJudge sentenced on the basis that she had lost sight in that eye, rather than that the eyewas physically removed. The Judge sentenced on an entirely correct assumption as tothe loss of sight in that eye.9 R v Kawau, above n 2, at [6].10 R v Kawau, above n 2, at [18].[26] As a consequence, Ms Vidal did not rely on that as a basis for arguing that thesentence was manifestly excessive. Instead it formed part of the background to filingthe appeal out of time.[27] Her submissions instead focused on whether the Judge erred by selecting astarting point of seven and a half years, relying on the sentencing bands in the Courtof Appeal's decision of Taueki. She notes that, where the offending could have beendealt with by the imposition of a lesser charge, Taueki suggests that this should bereflected in the band adopted.11 Furthermore, she submitted that in selecting thestarting point, there was a degree of double counting or over accentuation of theaggravating factors. For example, she submits that the violence should not beclassified as extreme and that reference to the eye injury and an attack to the headinvolves the double counting of aggravating factors. She also suggested that theoffending could not be considered premeditated which is one of the factors that isrelevant in the assessment of the level of culpability of an offender in domesticviolence matters.[28] She then referred to the Court of Appeal decision of Sun v R where the higheststarting point that could be adopted for the offending in that case was held to besix years, and submitting that, by analogy, the same limit should apply here.12[29] Once the 10 per cent uplift for prior convictions is added and the 25 per centdiscount for the appellant's guilty plea, she says that an end sentence of four and ahalf years imprisonment was appropriate.Discussion[30] As indicated above, I do not consider there is any basis for suggesting the Judgesentenced on an erroneous understanding of the facts. The victim has lost sight in herright eye. Furthermore, it is so physically damaged, that she wears an eye patch tohide its appearance. The fact she elected not to have it removed would not have altered11 At [27].12 Sun v R [2014] NZCA 278the trial Judge's assessment as it was the level of damage to the eye which was materialto the sentencing exercise, not its removal.[31] The Judge opted for a starting point in the mid range of Band 2 of the Tauekidecision. In adopting that starting point he considered:(a) the matter involved serious injuries as evidenced by the permanent lossof sight in her right eye and also her broken wrist;(b) the matter involved extreme violence because she was struck multipletimes about the head, face, eyes, body and arms. He took this accountas a moderate factor;(c) the attack included violence directed at the head which he took accountas a moderate factor;(d) the victim was vulnerable by the size differential with the defendant,and also her fear of him, and this was assessed as a moderate factor;and(e) the violence occurred in her home where she should have felt safe.[32] I do not consider that there has been double counting of the aggravating factorsand, in any event, even if there was an overlap, the number of aggravating factorswarranted the attack being in the mid range of Band 2 (which requires two or three ofthe aggravating factors to be present).[33] While Ms Vidal referred to the decision of Sun v R and the authorities discussedthere, they all involved street attacks, which did not have the obvious aggravatingfeatures of vulnerability of the victim or offending in the home.[34] Overall, there was nothing raised in Ms Vidal's submissions to suggest that thesentence was so out of line with established authority that it warranted correction bythis Court, let alone in the circumstances where leave to appeal was required becauseof a four year delay.[35] Accordingly, as I would not have allowed the appeal in any event, leave toappeal the sentence out of time is declined.Solicitors:S G Vidal, Southern Law, InvercargillRPB Law, Dunedin