Kara v The the Queen

[2022] NZHC 1218

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2022-409-66

[2022] NZHC 1218

BETWEEN

CALEB ISRAEL KARA

Appellant

AND

THE QUEEN

Respondent

Hearing:	26 May 2022
Counsel:	A Greaves for the Appellant W S Taffs for the Respondent
Judgment:	27 May 2022

JUDGMENT OF GWYN J

Solicitors:

A Greaves, Christchurch

Raymond Donnelly & Co, Christchurch

KARA v R [2022] NZHC 1218 [27 May 2022]

Introduction

[1]    Caleb Kara appeals against his sentence of imprisonment for two years and 10 months, on one charge of aggravated robbery, imposed by Judge Gilbert in the Christchurch District Court on 11 March 2022.1

What happened?

[2]    At around 6.00 pm on 2 March 2020, Mr Kaleb Kara and his three co- defendants drove to the complainant’s address in Christchurch. Mr Kara and two others got out of the vehicle, went to the front door and knocked while covering the peep hole. Mr Kara and one of the co-defendants who had accompanied him to the door then jumped the fence to access the complainant’s back yard. They walked around the rear of the property looking for access to the house. Mr Kara located a spade and they attempted, unsuccessfully, to use it to open a bedroom window. They then used the spade to break another window to a bedroom containing a cannabis grow. Mr Kara climbed through the window before yelling to the others, “Get in here”. The co-defendant who was already in the back yard entered through the window. The co-defendant who had been waiting in the car then got out of the vehicle, jumped the fence and climbed into the house through the broken window.

[3]    The complainant was standing in the hall and told the defendants to get out. Mr Kara grabbed him by the front of his top with one hand and punched him in the forehead above his left eye. Mr Kara pushed him backwards into his bedroom, holding on to the front of his top. The complainant tried to wrestle with Mr Kara who punched him again, this time on the left side of his jaw. Mr Kara said to him, “You can’t do this in our hood. You’re lucky we’re not going to fuck you over”.

[4]    Mr Kara initially stood in the doorway of the bedroom, preventing the complainant from leaving. He left to try and control the complainant’s dog while one of his co-defendants entered the room and grabbed the complainant to prevent him from leaving. That co-defendant then punched the complainant on the left side of his

1      R v Kara [2022] NZDC 4151.

jaw several times. The co-defendant who had until this point remained outside the building, then entered the house.

[5]    Two of the co-defendants ripped the cannabis plants from the pots, placed them in a blanket and took them to the car. The complainant then ran into the hallway where Mr Kara was standing. The complainant grabbed Mr Kara by the front of his top, pushed him backwards and ran down the hallway. Two of Mr Kara’s co-defendants came to Mr Kara’s aid. They then beat the complainant. They punched him in the face, knocked him to the ground and continued to kick and punch him while the complainant was curled up in a ball.

[6]    The complainant got up and went back to his bedroom. One of Mr Kara’s co- defendants went into the room, took the complainant’s blanket and used it to wrap up more cannabis plants. Mr Kara again stood in the doorway of the bedroom to prevent the complainant from leaving. Mr Kara kicked the complainant’s dog and so the complainant tackled him to the floor. Mr Kara got up and punched him in the jaw and nose, knocking him to the ground. His co-defendant kicked the complainant once more while carrying the cannabis plants out of the house. The other two co-defendants also left the building. The complainant then got up and punched Mr Kara in the face. Mr Kara punched him back and then left the house. Mr Kara and his co-defendants then drove away with the cannabis plants and blankets.

[7]    The complainant sustained a laceration to the left side of his forehead and marks to his face. He received a swollen jaw, sustained lumps to his head and suffered marks on his back.

[8]    Judge T J Gilbert gave Mr Kara and his co-defendants a sentence indication on 3 September 2021. That indication was accepted by all of them. When it came time for them to be sentenced, two of Mr Kara’s co-defendants received home detention and one received a term of imprisonment. Mr Kara was not sentenced because he fled the building before the matter was called. He was at large for a period before being arrested and was remanded in custody until his new sentencing date.

[9]    Mr Kara, aged 36, pleaded guilty to one charge of aggravated robbery.2 On  11 March 2022, Judge T J Gilbert sentenced Mr Kara to two years and ten months’ imprisonment.3 His Honour noted that his sentence indication had suggested a starting point of four years and two months’ imprisonment and that the co-defendants’ previous convictions would justify an uplift of two months. The Judge said that, compared to the previous convictions of Mr Kara’s co-defendants, the uplift of two months was a favourable outcome for Mr Kara. His Honour also noted that he had indicated he would apply a discount of 20 per cent for the guilty plea.

[10]   The Judge reviewed two pre-sentence reports prepared by Corrections and a cultural report produced for the purposes of s 27 of the Sentencing Act 2002. He had also received two letters from Mr Kara. The Judge noted that Mr Kara had grown up in a challenging gang environment and had previously responded poorly to rehabilitative efforts. The Judge was satisfied that there was a connection between Mr Kara’s background and his  offending.  For  that,  he  gave  Mr  Kara  a  further 15 per cent discount. He did not give any credit for the time Mr Kara spent on bail because the terms were not particularly restrictive and because Mr Kara’s decision to abscond caused significant additional delay.

Submissions

[11]   The primary submission made by Mr Greaves, for Mr Kara, is that there is a lack of parity between Mr Kara’s sentence and that of his co-offenders. In particular, Mr Greaves submits that the Judge failed to give Mr Kara an appropriate discount for the matters raised in the s 27 report, especially in light of the discounts  given to    Mr Kara’s co-defendants. In his submission the Judge placed too much weight on references to Mr Kara’s gang affiliations, compared to Mr Kara’s own denials of continued association with gangs, and did not give any weight to Mr Kara’s expressed interest in rehabilitation. Mr Greaves has been instructed that Mr Kara wishes to complete appropriate rehabilitative programmes, gain a greater understanding of tikanga and te reo, and generally better himself so that he can be there for his whanau. In Mr Greaves’ submission, Mr Kara’s goals and commitment to attend specific

2      Crimes Act 1961, s 235(b) – maximum penalty 14 years’ imprisonment.

3      R v Kara above n 1.

programmes form a protective factor against reoffending and ought to be considered when assessing his prospects of rehabilitation. He submits that a discount of 20 per cent should have been given, as for his co-offender, in addition to the 20 per cent discount for his guilty plea.

[12]   Mr Greaves submits that an increase in the discount of even five per cent would not be “mere tinkering”. A reduction in sentence of even three or four months may be highly significant to the offender.4

[13]   Mr Greaves initially advanced an argument that parity required that Mr Kara receive some discount for time spent on bail, but did not advance that ground at the hearing.

[14]   Mr Taffs, for the Crown, submits that the sentence was not manifestly excessive but merciful. Mr Taffs submits that the starting point of four years and two months’ imprisonment was lenient when the aggravating factors of the case, including attacks to the head, forced entry into a residential home, four attackers and pre- meditation, are considered. Similarly, the respondent submits  that  the  uplift  of  two months given to each co-defendant was also lenient because Mr Kara had the most extensive criminal record and benefitted from being sentenced alongside co-offenders with less serious criminal records.

[15]   The respondent submits that the discounts for the appellant’s guilty plea and cultural report were also more than was necessary and their assessments contain no error. While Mr Kara says now that he wishes to undertake rehabilitation, that was not so at the time the pre-sentence reports were written.

[16]   Finally, the respondent submits that the principle of parity is not offended here as it cannot be said that the sentences imposed contain a disparity so gross and unjustifiable that an independent observer would consider the administration of justice miscarried. Accordingly, the appeal should be dismissed.

4      Singh v Police [2022] NZHC 679, at [40].

Should the appeal be allowed?

[17]   Under s 250 of the Criminal Procedure Act 2011, the Court must allow the appeal if satisfied there is a material error in the sentence and a different sentence should be imposed. The focus is on whether the end sentence is within the available range.5

[18]   I am not convinced the Judge made an error in sentencing that resulted in an excessive end sentence. The submissions for Mr Kara rely in part on the lack of parity between the discount given to one of Mr Kara’s  co-defendants and that given to    Mr Kara. As Mr Greaves acknowledges, the Court of Appeal in Whittaker v R found that the discounts given for matters raised in s 27 reports are very much fact- specific.6 The Judge considered those matters and made a careful assessment of each offender’s circumstances. While the discounts given to Mr Kara may have differed to those given to his other co-defendants, the discount given was appropriate in light of the evidence available.

[19]   Further, Mr Kara’s situation differed from that of his co-defendants in other ways that are less favourable to his case. The Judge noted that Mr Kara’s criminal record (which included previous violence and property offending) could well have justified an uplift of more than two months. Mr Kara was also the only one of the four co-defendants to abscond when it came time for sentencing.

[20]   Counsel also submits that the Judge should have recognised Mr Kara’ situation now and his assurance that he no longer had close gang connections and wished to undergo rehabilitative treatment and allowed a discount for prospects of rehabilitation. However, the Judge did specifically note that he had received Mr Kara’s letters and it is plain from his comments that he had read the letters, but he went on to observe “I do need to read them in light of your comments in the pre-sentence report”.7 The Judge was entitled to take into account both the pre-sentence reports and Mr Kara’s subsequent views and was best placed to make an assessment of the relative weight to be given to each.

5      Ripia v R [2011] NZCA 101 at [15].

6      Whittaker v R [2020] NZCA 241 at [51].

7      R v Kara above n 1, at [12].

[21]   Even if the Judge had made an error, a 15 per cent discount for personal circumstances is within the available range. Mr Kara’s situation can be distinguished from that of his co-defendants and the discount given is not excessively low when compared to s 27 discounts given in other cases.

[22]   I conclude that the discount given was not insufficient and, therefore, the end sentence is not manifestly excessive.

Result

[23]Because I am not satisfied the Judge made an error, I dismiss the appeal.

Gwyn J