[2] He was sentenced to two years and four months imprisonment and given a first strike warning.3 He appeals against his sentence on the grounds that the sentence is manifestly excessive. The Judge is said to have adopted a starting point for the lead charge that was too high, erred in relation to his approach on the other two offences, and allowed an inadequate discount for his guilty plea.

Circumstances of offending

[3] The offending related to two occasions. The first occasion was on 23 July
2015 when Mr Kapene had been drinking with two associates after work at a bar. He went into the bathroom where he had a confrontation with another patron (victim

1      Crimes Act 1961, s189(1) (maximum penalty 10 years imprisonment).
2      Crimes Act 1961, s 196 (maximum penalty one year imprisonment).
3      Police v Kapene [2016] NZDC 15583.

KAPENE v POLICE [2016] NZHC 3036 [13 December 2016]

one). Around half an hour later an associate of victim one approached Mr Kapene to speak to him about the confrontation. Mr Kapene immediately went over to the victim and punched him in the side of his head with a closed fist. Victim one fell heavily onto the floor from a standing position. This gave rise to the first assault charge.

[4] The second occasion took place in the early hours of 15 November 2015. Mr Kapene was drinking at a bar in Masterton. He approached a patron (victim two) who was standing in the smoking area with his friends. He punched victim two in the side of the head. This was completely unexpected by victim two, and he therefore had no opportunity to anticipate or protect himself from the punch thrown by Mr Kapene. He was knocked to the floor. This gave rise to the second assault charge.

[5] About 20 minutes later, as the bar was closing, Mr Kapene’s third victim was walking by himself on the street outside the bar endeavouring to catch up with his friends. Without warning, Mr Kapene stepped in front of victim three and punched him once in the face. Victim three fell backwards on to the footpath. He was bleeding, unconscious and unresponsive. The police arrived about one minute later and rendered first aid. He was then transported by ambulance to the hospital where he stayed overnight. He sustained a cut to his head and a large haematoma as a result of falling backwards on to the footpath. He also sustained facial abrasions, cuts and swelling from the punch. A cut to his lip required…

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 Kapene v Police

Details

AGLC: Kapene v Police [2016] NZHC 3036
Case: [2016] NZHC 3036
Decision Date: 13 December 2016

CaseChat Overview and Summary

Mr Kapene appealed against his sentence for injuring with intent to cause grievous bodily harm and two counts of assault. The sentencing judge had imposed a sentence of two years and four months imprisonment on the lead charge, with concurrent sentences of four months for the other two charges. The appeal was against the length of the sentence on the lead charge. Mr Kapene argued that the starting point for the lead charge was too high, that the uplift for the totality of the offending was excessive, and that the discount for his guilty plea was inadequate. The High Court found in favour of the appellant and quashed the original sentence, replacing it with a sentence of one year and seven months imprisonment on the lead charge, with the concurrent sentences on the other charges remaining. The Court found that the starting point for the lead charge was too high, that the uplift for the totality of the offending was not manifestly excessive, and that the discount for the guilty plea was not out of the available range. The Court also found that the special conditions set out in the presentence report were appropriate. The appeal was allowed, and the sentence was replaced with a sentence of one year and seven months imprisonment, with the special conditions applying for six months from the sentence expiry date.

The Court found that the starting point for the lead charge was too high, as only one aggravating feature was present in this case, namely an attack to the head. The presence of one aggravating feature would put the offending a little above the bottom of band one of Taueki. In my view that means a sentence of three to four years, rather than the four to five years taken by the Judge, before some adjustment downwards because of the lower maximum penalty that applies. The uplift for the totality of the offending was not manifestly excessive, as the Judge's approach was orthodox. The Judge's uplift of five months took into account totality. The Judge has then set the concurrent sentences at the penalty appropriate individually to those offences. While some judges may have uplifted the sentence by slightly less than five months, it cannot be said that the uplift was manifestly excessive, particularly when the Judge then effectively further adjusted for totality by taking a further two months off the starting point. In effect that meant an uplift of three months for the two assault charges. The discount for the guilty plea was not out of the available range, as the Judge could have applied a 20 per cent discount however I am not able to say that a 15 per cent discount was out of the available range. Moreover, or particularly that is because the Judge effectively allowed a greater discount than 15 per cent because he had already reduced the starting point, as I have mentioned, by two months and he applied the guilty plea discount before the discount for youth.

Orders