Kaio v R - [2012] NZCA 168

IN THE COURT OF APPEAL OF NEW ZEALAND

CA367/2011

[2012] NZCA 168

BETWEEN JAMES ABRAHAM KAIO
Appellant

AND THE QUEEN
Respondent

Hearing: 28 February 2012

Court: Hammond, Priestley and Allan JJ

Counsel: R Vigor-Brown for Appellant
D J Boldt for Respondent

Judgment: 3 May 2012 at 11 am

JUDGMENT OF THE COURT

A The appeal against sentence is allowed.

BThe sentence of seven years imprisonment is quashed and a sentence of six years imprisonment substituted.

REASONS OF THE COURT

(Given by Priestley J)

On 28 February 2012 this Court gave a result judgment which allowed the appeal against sentence, quashed the seven year term of imprisonment imposed on the appellant, and substituted a sentence of six years imprisonment.[1] Our reasons for that result follow.

The offending

[1] Kaio v R [2012] NZCA 50.

The appellant faced a charge, laid indictably, under s 188(1) of the Crimes Act 1961 of causing grievous bodily harm with intent. The offending took place in Putaruru in February 2011. The victim was the appellant’s estranged partner.
The couple had separated the previous month. The victim returned to the couple’s former home in Putaruru to collect some of her personal items and give the two children (one was living with her and one with the appellant), an opportunity to see each other and their father. For various reasons she decided to stay the night. The appellant found a text message on the victim’s cellphone which angered him. He damaged the cellphone and confronted the victim. The situation rapidly deteriorated. The appellant was enraged and dragged the victim back into the house by her hair. He punched her several times on the side of her head and around her body. She lost consciousness.
After the victim had regained consciousness, the appellant dragged her into the lounge, wrapped a phone charger cord around her neck and pulled it tight. The victim was able to prevent herself from choking. The assaults then ceased. The appellant took the victim into the shower.
As a result of the assault the victim was in hospital for three weeks. Her injuries included a potentially fatal subdural haematoma, two black eyes, a broken nose, facial bleeding, and grazing. The victim impact statement records that the victim feared for her life and had recurrent nightmares. She suffers from lack of concentration, on medical advice was unable to drive, and needed six months of home care.
The assault inflicted by the appellant on his former partner was prolonged, vicious, and resulted in serious injuries.

Relevant sentencing background

The appellant, to his credit, pleaded guilty at an early opportunity. He was duly sentenced by Judge Ingram in the Rotorua District Court in May 2011.[2]
[2] R v Kaio DC Rotorua CRI-2011-077-194, 27 May 2011.
The Judge noted that the appellant’s only previous convictions, entered in 2009 and 2010, were for common assault and male assaults female. These convictions involved the same victim.
The appellant was deeply remorseful. He wrote to the Judge and exhibited genuine distress…

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 Kaio v R

Details

AGLC: Kaio v R [2012] NZCA 168
Case: [2012] NZCA 168
Decision Date: 3 May 2012

CaseChat Overview and Summary

In the case of Kaio v R, the appellant, James Abraham Kaio, appealed against his sentence for causing grievous bodily harm with intent, under section 188(1) of the Crimes Act 1961. The incident occurred in February 2011 in Putaruru, New Zealand, and involved the appellant assaulting his estranged partner, resulting in severe injuries. The appellant pleaded guilty and was sentenced to seven years imprisonment by Judge Ingram in the Rotorua District Court. The appeal sought to challenge the length of the sentence, particularly in light of a psychiatric report that suggested the appellant was suffering from a major depressive episode at the time of the offence. The Court of Appeal allowed the appeal, reduced the sentence to six years imprisonment, and noted that while mental health assessments can be considered on appeal, it would not routinely review sentences based on post-sentencing psychiatric evaluations.

The central legal issue in this case was whether the Court of Appeal should consider the psychiatric report prepared after sentencing in determining the appropriate term of imprisonment. The appellant's counsel argued that the psychiatric report, which indicated the appellant was suffering from a major depressive episode at the time of the offence, should have been considered by the sentencing judge and warranted a reduced sentence. The Crown accepted that a mental condition could be a mitigating factor affecting culpability, but disagreed on the extent of the reduction. The Court of Appeal needed to decide whether the post-sentencing psychiatric report should influence the sentence, and if so, how it should be factored into the overall sentencing framework.

The Court of Appeal allowed the appeal against the sentence, finding that the sentencing judge should have considered the psychiatric report indicating the appellant was suffering from a major depressive episode at the time of the offence. The Court reasoned that the appellant's mental health condition, in conjunction with his other mitigating factors, warranted a reduced sentence. The Court did not apportion specific percentages to each mitigating factor but concluded that the overall mitigating effect warranted a sentence closer to six years imprisonment rather than seven. The Court emphasised that this decision was specific to the unique circumstances of the case and cautioned against expecting routine review of post-sentencing psychiatric assessments. The Court substituted the original sentence of seven years imprisonment with a sentence of six years imprisonment.

Orders