Kara v The Queen - [2013] NZCA 527

IN THE COURT OF APPEAL OF NEW ZEALAND

CA807/2012
[2013] NZCA 527

BETWEEN	CHARLES HETA KARA Appellant
AND	THE QUEEN Respondent

CA2/2013
AND BETWEEN	TAKAHI KARA Appellant
AND	THE QUEEN Respondent

Hearing:	22 October 2013
Court:	Stevens, White and French JJ
Counsel:	J J Corby for Charles Kara R J E Brown for Takahi Kara M J Lillico for Respondent
Judgment:	1 November 2013 at 11.30 am

JUDGMENT OF THE COURT

AThe application made by Takahi Kara for an extension of time to appeal is granted.
BThe appeals against sentence are dismissed.

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REASONS OF THE COURT

(Given by Stevens J)

Introduction

Following trial in the Auckland District Court Charles and Takahi Kara were convicted of burglary, wounding with intent to cause grievous bodily harm, and male assaults female. Both were sentenced by Judge Wade on 27 November 2012: Charles Kara to nine years, three months’ imprisonment, and Takahi Kara to eight years’ imprisonment.[1]
[1]R v Kara DC Auckland CRI-2011-019-5337, 27 November 2012 [sentencing decision].
Charles Kara originally appealed both his convictions and his sentence, but has now abandoned his conviction appeal.[2] Takahi Kara appeals his sentence.
[2]A notice of abandonment was filed on 10 October 2013. This appeal was assigned to the Permanent Court on the basis of the conviction appeal.
Takahi Kara’s appeal was filed out of time. The respondent has not opposed an extension of time. Accordingly the application for an extension of time to appeal is granted.

Background

The complainants were Jing Li, her former partner Paul Morris, and their two children, aged three and five years. In July 2011 Ms Li and her children were living at a property in Point England, Auckland, to which they had moved following the Christchurch earthquakes. Mr Morris was visiting for his elder son’s fifth birthday.
At 2 am on 2 July the complainants were awoken by a loud noise. When Ms Li and Mr Morris went to investigate they were confronted by four men inside their house. The men demanded money and claimed they were owed money by the former occupants of the house. Mr Morris attempted to reason with the intruders. He was then struck by one or more of the men and fell down. He got up and was attacked again, collapsing unconscious on the ground. Although he has very little recollection of events after this point, Mr Morris received injuries consistent with being struck about the head and body multiple times. Of particular seriousness was a life‑threatening blood clot on his brain which required emergency surgery. He needed 45 stitches and suffered bruising over his entire body.
Ms Li was also punched about the body and kneed by the men. She was then grabbed and shoved into the bedroom where her sons had been sleeping. When she attempted to leave she discovered that the bedroom door was being held shut from the outside. Ms Li escaped out of the bedroom window and ran to a neighbour’s home to seek help. She had to leave…

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 Kara v The Queen

Details

AGLC: Kara v The Queen [2013] NZCA 527
Case: [2013] NZCA 527
Decision Date: 1 November 2013 at 11.30 am

CaseChat Overview and Summary

Charles and Takahi Kara appealed against their sentences, which were imposed following their convictions for burglary, wounding with intent to cause grievous bodily harm, and male assaults female. The Crown did not oppose an extension of time for Takahi Kara’s appeal. Takahi Kara's appeal was allowed out of time. The appellants submitted that their sentences were manifestly excessive. Charles Kara submitted that the starting point was too high and insufficient credit was given for time spent on electronically monitored bail and an overall "de-escalation" in offending. Takahi Kara submitted that the starting point should have been lower given his lesser role in the offending, and that a discount should have been given for his remorse and time spent under restrictive bail conditions. The Court found that the starting point was correctly set at nine years for both appellants, and that the sentence was within the range of appropriate penalties for the offending. The Court also found that the Judge did not err in the discount given for time spent on electronically monitored bail, and that there was no basis to adjust the uplift for previous violent offending. The Court further found that there was no evidence to support Takahi Kara’s contention that he was less culpable than his co-offenders. The Court also found that the Judge did not err in refusing a discount on the basis of remorse. Finally, the Court found that the discount given for Takahi Kara’s age and lack of previous convictions was generous, and that the Judge’s decision not to allow a further discount for time spent on bail did not render the sentence manifestly excessive. The application for an extension of time to appeal is granted and the appeals against sentence are dismissed.

Orders