Johnston-Walters v R - [2011] NZCA 367

IN THE COURT OF APPEAL OF NEW ZEALAND

CA899/2010
[2011] NZCA 367

BETWEEN KANE HARRIS JOSEPH JOHNSTON-WALTERS
Appellant

AND THE QUEEN
Respondent

CA900/2010

AND BETWEEN RATANA RAHUI TE KANAWA
Appellant

AND THE QUEEN
Respondent

Hearing: 7 July 2011

Court: Glazebrook, Rodney Hansen and MacKenzie JJ

Appearances: J A Westgate for Appellants
B D Tantrum for Respondent

Judgment: 8 August 2011 at 10.30 am

JUDGMENT OF THE COURT

A Both appeals against sentence are allowed.

BIn each case, the sentence is quashed and a sentence of two years imprisonment substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by MacKenzie J)

Introduction

The appellants, Messrs Johnston-Walters and Te Kanawa, appeal against sentences of two years three months imprisonment and two years two months imprisonment respectively imposed on them following their pleas of guilty to two counts of injuring with intent to injure and one count of assault with intent to injure.[1]

Facts

[1] R v Johnston-Walters DC Invercargill CRI-2010-025-498, 3 December 2010.

The victims and the offenders (including the appellants) were driving in separate vehicles in Invercargill on 5 February 2010. While both vehicles were stopped at a traffic light on Dee Street, Mr Te Kanawa without provocation, made hand gestures to the victims and directed verbal abuse at them. The offenders’ vehicle (with seven occupants) pursued the victims’ vehicle as they continued driving along Dee Street. Bottles were thrown from the offenders’ van in the direction of the victims’ car. The victims attempted to get away from the offenders’ van but were required to stop at a red light. The offenders’ van pulled alongside and more bottles were thrown. A number of the offenders alighted from their van and began to advance aggressively on the victims’ vehicle. The driver of the victims’ vehicle sped away to avoid a confrontation and in the process side swiped the offenders’ van. The power steering in his vehicle failed and he lost control of the vehicle which came to a stop outside a shop. A number of the offenders ran towards the victims and the three victims were set upon by the offenders in an unprovoked and sustained beating. The attack lasted for a couple of minutes before members of the public intervened. The offenders returned to their vehicle and drove off until stopped by police.
The driver of the van received two black eyes and two chipped teeth, as well as bruising on his back and swelling to his nose and head. He was hospitalised overnight. The second victim was also hospitalised. He received a cut to his head which he said was from a bottle being smashed over it, as well as a cut to his left ear and a split under his right eye. He suffered some swelling to his face and jaw. The third victim was not injured. The vehicle received substantial damage.

Sentencing

The appellants were two of four offenders who were sentenced by Judge Phillips in the District Court at Invercargill on 3 December 2010. In sentencing, the judge noted…

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 Johnston-Walters v R

Details

AGLC: Johnston-Walters v R [2011] NZCA 367
Case: [2011] NZCA 367
Decision Date: 8 August 2011

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard appeals from Messrs Johnston-Walters and Te Kanawa against the sentences of two years three months and two years two months imprisonment, respectively, imposed on them following their guilty pleas to two counts of injuring with intent to injure and one count of assault with intent to injure. The appeals were heard on 7 July 2011, with judgments delivered on 8 August 2011. The central legal issues revolved around the appropriateness of the starting point, the disparity in sentences between the appellants and a co-offender, and the extent of the uplifts for personal aggravating factors.

The court found that the starting point of two years and six months was appropriate, considering the severity of the attack, the involvement of the offenders, and the need for strong denunciation. The court also noted that the sentences were not excessively disproportionate compared to other offenders involved in similar circumstances. However, the court concluded that the uplifts for personal aggravating factors were unjustified, as the previous convictions of the appellants did not indicate a prediliction for violent offenses or justify an increase in sentence to protect the community. The court ruled that the appropriate sentences should have been within the range of 18 to 24 months, but ultimately decided on a sentence of two years imprisonment for each appellant.

In conclusion, the Court of Appeal allowed both appeals against sentence, quashed the original sentences, and substituted sentences of two years imprisonment for each appellant.

Orders