[1] On 3 February 2016 in the District Court at Tauranga, Judge PS Rollo sentenced Mr Kanuta to 20 months’ imprisonment.1 Mr Kanuta had pleaded guilty to one charge of assault with intent to injure,2 one representative charge of breach of community work3 and two charges of breach of supervision order.4 The lead offence is the assault with intent to injure, which carries a maximum sentence of three years’
imprisonment.

[2] Mr Kanuta appeals his sentence of imprisonment. He appeals on the basis that it is manifestly excessive and that the Judge should have commuted the sentence from imprisonment to home detention.

Facts

[3] At the time of the offending, Mr Kanuta had been in a domestic relationship with the victim for approximately two years. They were living together. On the morning of 8 November 2015, Mr Kanuta went to a friend’s house in Point England, Auckland. There was a number of people present, including the victim. The victim asked angrily where Mr Kanuta had been during the previous night. Mr Kanuta ignored her. The victim continued to yell angrily at Mr Kanuta. Mr Kanuta continued to ignore her.

[4] The victim then punched Mr Kanuta four or five times in the head with a closed fist. Mr Kanuta retaliated by punching the victim in the head with a closed fist. The force of that first punch caused the victim to fall to the ground unconscious. While she was lying unconscious, Mr Kanuta sat on top of her and began choking her with both hands around her neck. The victim eventually regained consciousness and managed to fight Mr Kanuta off. Mr Kanuta then kicked her a number of times in the head and returned to choking her. As a result of the offending, the victim
sustained swelling and bruising to her face and scratching around her neck.

1      Police v Kanuta [2016] NZDC 1796.
2      Crimes Act 1961, s 193.
3      Sentencing Act 2002, s 71(1)(a).
4      Sentencing Act 2002, s 70(a).

[5] When spoken to by Police, Mr Kanuta explained that he had been drunk on the morning of the offending. He did not claim self-defence.

Previous conviction

[6] The biggest problem for Mr Kanuta in mounting this appeal is that this was not the first time he had used violence against the victim.

[7] On 24 July 2015, Mr Kanuta was sentenced on another charge of assault with intent to injure in respect of the same woman. That offending occurred on
13 December 2014 and involved some similar features. Mr Kanuta was drunk and became embroiled in a heated argument with…

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 Kanuta v R

Details

AGLC: Kanuta v R [2016] NZHC 436
Case: [2016] NZHC 436
Decision Date: 14 March 2016

CaseChat Overview and Summary

In the High Court of New Zealand, Teomoeka Marakore Kanuta appealed his sentence of 20 months' imprisonment, imposed by Judge PS Rollo in the District Court at Tauranga, for charges including assault with intent to injure, breach of community work, and breach of supervision order. The appellant argued that the sentence was manifestly excessive and that the judge should have commuted it to home detention. The High Court reviewed the case, focusing on the seriousness of the offending, the aggravating features, and the sentencing principles. The Court found that while the starting point adopted by Judge Rollo was excessive, the overall sentence was not manifestly excessive. The Court considered the totality principle and adjusted the starting point to 17 months' imprisonment. Regarding the appeal for a substituted sentence of home detention, the Court concluded that imprisonment was the least restrictive sentence appropriate in the circumstances, given the need for denunciation, deterrence, and holding the offender accountable. The appeal against the sentence was allowed, and a sentence of 17 months' imprisonment was substituted. The appeal for a substituted sentence of home detention was denied. All other aspects of the sentence remained in force.

Orders