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…

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 the Queen

Details

AGLC: Kara v The the Queen [2022] NZHC 1218
Case: [2022] NZHC 1218
Decision Date: 27 May 2022

CaseChat Overview and Summary

Caleb Israel Kara appeals against his sentence of imprisonment for two years and ten months, imposed by the Christchurch District Court on one charge of aggravated robbery. The appeal was heard on 26 May 2022, and the court delivered its judgment on 27 May 2022. The legal issue before the court was whether there was a material error in sentencing that resulted in an excessive sentence. The appellant argued that there was a lack of parity between his sentence and that of his co-offenders. Specifically, the appellant submitted that the judge failed to give him an appropriate discount for the matters raised in the section 27 report, especially in light of the discounts given to his co-defendants. The Crown submitted that the sentence was not manifestly excessive but merciful. The court held that it was not satisfied that the judge made an error in sentencing that resulted in an excessive end sentence. The court noted that the discounts given for matters raised in section 27 reports were very much fact-specific, and the judge had considered those matters and made a careful assessment of each offender's circumstances. The court concluded that the discount given was appropriate in light of the evidence available. The court also noted that the appellant's situation differed from that of his co-defendants in other ways that were less favourable to his case. The court held that even if the judge had made an error, a 15 per cent discount for personal circumstances was within the available range, and the discount given was not excessively low when compared to section 27 discounts given in other cases. The court dismissed the appeal.

Orders