Kaihau v R - [2015] NZCA 40

IN THE COURT OF APPEAL OF NEW ZEALAND

CA468/2014
[2015] NZCA 40

BETWEEN	ROBERT JAMES KAIHAU Appellant
AND	THE QUEEN Respondent

Hearing:	9 February 2015
Court:	Wild, MacKenzie and Lang JJ
Counsel:	M J Phelps for Appellant B F Fenton for Respondent
Judgment:	3 March 2015 at 11 am

JUDGMENT OF THE COURT

The appeal, which is against sentence, is dismissed.

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REASONS OF THE COURT

(Given by MacKenzie J)

The appellant was sentenced by Judge Rea in the District Court at Napier on 7 August 2014 on eight counts of theft, burglary, receiving stolen property, and interfering with a motor vehicle.[1] He pleaded guilty to those offences. He was sentenced to three years and two months imprisonment. He appeals against that sentence.
[1]R v Kaihau DC Napier CRI-2013-082-422, 7 August 2014.
The offending occurred on several separate occasions between April and June 2013. We describe them briefly:
(a)The appellant went to a busy reserve well known as a walking area. The complainants had parked their vehicle there while walking in the reserve. The appellant used a hammer, which he had taken with him, to smash the driver’s window to gain entry. The complainants returned in time to hear the window being smashed and to see the appellant standing by with the hammer in his hand.
(b)The appellant broke into a vehicle parked on a street in Napier. He stole property from it and took the vehicle, intending to sell it and the property to associates. When he was unable to do so, he removed the property and discarded the vehicle.
(c)The appellant went onto a building site on which there was a large trailer. The site was secured by a padlocked gate. He contacted an associate about disposing of the trailer, then went to the site, cut the padlock, and removed the trailer. He then arranged through the associate for the trailer to be sold.
(d)The appellant stole a motor vehicle and boat trailer parked at a boat ramp while the owner was out fishing. He forced entry to the vehicle and drove off. He arranged a sale through an associate.
(e)The appellant received five chainsaws stolen in the burglary of a shop in Waipawa.
(f)The appellant received property stolen from a hobby shop in Hastings.
(g)The appellant received a four-wheel farm bike stolen from a farm in the Wairoa district.
(h)The total property taken or received and not recovered was valued at over $47,000 and there was further property taken or received and subsequently recovered.
In sentencing, the Judge took a starting point of two and a half years imprisonment for the burglary of the building site from which the motor vehicle and trailer were stolen.[2] He uplifted that by 18 months to reflect all of the other offending, leading to a total starting point of four years imprisonment.[3] The Judge added six months to reflect the appellant’s criminal history.[4] He gave a credit of nine months for the appellant’s good behaviour whilst on EM bail and…

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 Kaihau v R

Details

AGLC: Kaihau v R [2015] NZCA 40
Case: [2015] NZCA 40
Decision Date: 3 March 2015 at 11 am

CaseChat Overview and Summary

In the case of Kaihau v R, the appellant, Robert James Kaihau, appealed against his sentence of three years and two months imprisonment for various offences including theft, burglary, and receiving stolen property. The appellant had pleaded guilty to the charges, which involved multiple incidents of theft and burglary occurring between April and June 2013. The primary legal issues before the court were whether the starting point for the burglary offence was appropriately set at two and a half years and if the discount for the appellant’s guilty pleas was sufficient.

The Court of Appeal found that the starting point of two and a half years for the burglary was not excessive, considering the appellant's persistent and premeditated nature of the offending. The appellant was actively seeking out properties with valuable goods and arranging for the sale of stolen property, which distinguished his offending from less serious cases. The Court also noted that the total starting point of four years, including an uplift for the remaining offending, was within the appropriate range, supported by previous cases. Regarding the discount for the guilty pleas, the court determined that the seven-month discount was appropriate, as the pleas were not entered at the earliest opportunity. The Court of Appeal concluded that neither the starting point nor the discount for the guilty pleas was excessive.

Consequently, the appeal against the sentence was dismissed, and the original sentence of three years and two months imprisonment was upheld.

Orders