Kahika v Police - [2015] NZHC 1262

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2014-441-0047 [2015] NZHC 1262

JUNIOR KAHIKA

v

NEW ZEALAND POLICE

Hearing: 2 June 2015

Appearances:

R Phillip for the Appellant
F Cleary for the Respondent

Date:

2 June 2015

JUDGMENT OF THOMAS J
RE APPEAL AGAINST SENTENCE

KAHIKA v NEW ZEALAND POLICE [2015] NZHC 1262 [2 June 2015]

Introduction

[1] Mr Kahika was sentenced at the District Court in Hastings to two years and one month’s imprisonment. He was sentenced after having pleaded guilty to representative charges of male assaults female, assault with intent to injure and breach of protection order.

[2] He appeals on the basis that the end sentence was manifestly excessive.

Summary of facts

[3] Mr Kahika is the ex-partner of the victim in this matter. They were previously in a relationship for approximately 10 years and have two children together.

[4] In 2008, a final protection order was granted in the Hastings Family Court in respect of the victim and her two children. Mr Kahika was the respondent.

[5] The circumstances of the offending relate to events which took place between Friday 18 April 2014 through to the following Saturday 26 April. At the time, Mr Kahika was subject to a condition not to associate with the complainant as part of his prison release conditions. There was contact between the respondent and the victim on the Friday to organise Mr Kahika having access to the children over Easter. The victim dropped them off and then returned to her home.

[6] At around 2 pm that afternoon, Mr Kahika turned up at the victim’s house. He did not have the children with him. She had friends there so he left. He came back a short time later once the friends had left.

[7] Later that evening, he and the victim were sitting around the victim’s bed. He stood up. He approached the victim and slapped his hand over her mouth. He then covered her mouth with his hand, one finger covering her nose so she could not breathe properly. She fell backwards onto the bed. Mr Kahika knelt over her. She was fighting, kicking and slapping trying to stop Mr Kahika and trying to get his

hand off her mouth. While this was going on, he swore at her and abused her. She stopped fighting, hoping it would encourage him to stop. He eventually did.

[8] She got off the bed and walked towards the kitchen, grabbed her phone and took it into the bathroom and locked the door. He then jumped over the wall between the toilet and the bathroom. There is a metre high gap between the wall and the ceiling. He then grabbed the victim by the hair, wrapped his hand around her hair and pulled her close, again whispering abusive terms and telling her to ‘shut the fuck up”. He said he would let her go if she stopped screaming. She did.

[9] She ran out of the bathroom and into one of the…

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.

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Details

Case: [2015] NZHC 1262
Decision Date: 2 June 2015

CaseChat Overview and Summary

Junior Kahika appealed against a sentence imposed on him by the District Court, which had found him guilty of charges including assault with intent to injure, male assaults female, and breach of protection order. The appeal was heard in the High Court of New Zealand at Napier. The central issue was whether the sentence of two years and one month’s imprisonment was manifestly excessive. The appellant's counsel argued that the starting point and the uplift in sentencing were both inappropriate and excessive, given the nature of the assault and the fact that the offending constituted a single event. The Crown, represented by Ms Cleary, contended that the starting point and uplift were justified by the seriousness of the offending, which involved significant physical and psychological abuse. The High Court considered the arguments and found that the District Court had not erred in its sentencing. The nature and extent of the violence, the vulnerability of the victim, and the duration of the assault justified the starting point of 18 months for the charge of assault with intent to injure. The uplift of six months to account for the totality of the offending, particularly the breach of a protection order, was also deemed appropriate. The Court concluded that the sentence was not manifestly excessive and dismissed the appeal.

Orders