Karawana v The Queen - [2013] NZCA 516

IN THE COURT OF APPEAL OF NEW ZEALAND

CA854/2011
[2013] NZCA 516

BETWEEN	JONATHAN WYATT KARAWANA Appellant
AND	THE QUEEN Respondent

Hearing:	26 September 2013
Court:	Ellen France, Priestley and MacKenzie JJ
Counsel:	C W Stevenson for Appellant M F Laracy for Respondent
Judgment:	23 October 2013 at 11.30 am

JUDGMENT OF THE COURT

AThe appeal against conviction under s 188(1) of the Crimes Act 1961 is allowed.
BThe conviction is quashed. A conviction under s 188(2) of the Crimes Act 1961 is substituted.
CThe appeal against sentence is allowed.
DThe sentence of three years imprisonment is quashed. A sentence of one year and nine months imprisonment is substituted.
EA post-release condition that the appellant attend and complete any other counselling/treatment or programmes as directed by his Probation Officer is imposed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Priestley J)

Introduction

The appellant faced trial in the Manukau District Court in August 2011 presided over by Judge Andrée Wiltens. The jury convicted him on the one count he faced of causing his victim grievous bodily harm with intent to cause grievous bodily harm, laid under s 188(1) of the Crimes Act 1961. He was subsequently sentenced to a term of three years imprisonment.[1]
[1]R v Karawana DC Manukau CRI-2010-092-8033, 30 November 2011.
The offending took place in May 2010 in the home of the appellant’s mother and her then partner, the victim. The appellant, then aged 19, was also there. The three had been consuming alcohol. An argument developed between the victim and his partner. There was an altercation in the kitchen between the victim and the appellant. On one version of the evidence the victim armed himself with a kitchen knife.
The appellant went into his bedroom and returned with his gas-operated air pistol. Approximately five shots were fired at the victim, all of which struck him in the head area. One pellet damaged the victim’s right eye. Blindness in that eye resulted.
The defence raised by the appellant at his trial was self-defence. He did not give evidence before the jury but the jury nonetheless had the advantage of a DVD of his interview with a police officer. By convicting him the jury was clearly satisfied beyond reasonable doubt that self-defence had been excluded.
This appeal challenges both the appellant’s conviction and sentence. The appeal was first called before another panel of this Court in August 2012. Since then a number of appeal points, including one of counsel competency, have fallen away or been resolved. It is unnecessary for us to detail these points.

Remaining appeal issues

The following appeal points were advanced:
(a)There was no evidence to support a conviction under s 188(1). The Judge had erred by not directing the jury on the option of returning a verdict on the lesser included charge under s 188(2) of the Crimes Act, being causing grievous bodily harm with intent to injure.
(b)Judge Andrée Wiltens failed to direct the jury adequately on self‑defence being available to the appellant,…

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 Karawana v The Queen

Details

AGLC: Karawana v The Queen [2013] NZCA 516
Case: [2013] NZCA 516
Decision Date: 23 October 2013 at 11.30 am

CaseChat Overview and Summary

The appellant, Jonathan Wyatt Karawana, appealed against his conviction and sentence for causing grievous bodily harm with intent to cause grievous bodily harm under section 188(1) of the Crimes Act 1961. The appeal was heard by the Court of Appeal of New Zealand, comprising Ellen France, Priestley, and MacKenzie JJ. The appeal raised issues about the adequacy of the jury's direction on self-defence, the appropriateness of the sentence, and whether the conviction under section 188(1) was sustainable. The court found the conviction under section 188(1) was unsafe, but there was ample evidence to justify a conviction under section 188(2). The court substituted a conviction under section 188(2) and reduced the sentence to one year and nine months imprisonment, with a post-release condition that the appellant attend and complete any other counselling or treatment programmes as directed by his Probation Officer.

The legal issues raised in this appeal were whether the conviction under section 188(1) was sustainable, whether the Judge had adequately directed the jury on self-defence, whether the Judge's directions on "propensity" were inadequate, and whether the sentence imposed was manifestly excessive. The court concluded that the conviction under section 188(1) was not sustainable and that a conviction under section 188(2) was properly open to the jury on the lesser charge. The court also found that the Judge's directions to the jury on self-defence were adequate and that there was no material failure so far as the relevance of the victim's record of violence was concerned. However, the court considered the sentence imposed was manifestly excessive, and a sentence of one year and nine months imprisonment was substituted.

The court found that the conviction under section 188(1) was unsafe because there was no evidence to support the appellant's intent to cause grievous bodily harm. The court noted that the defence counsel had pointed out to the jury that the appellant had to know it was possible to inflict grievous bodily harm with the air pistol. The court concluded that the conviction under section 188(1) was not reasonable or safe, but a guilty verdict under section 188(2) was properly open to the jury on the lesser charge. The court rejected the submissions that there were inadequacies in the Judge's directions to the jury on self-defence and that there was any material failure so far as the relevance of the victim's record of violence was concerned. The court allowed the appeal against conviction and substituted a conviction under section 188(2).

Regarding the appeal against sentence, the court noted that the Judge imposed an end sentence which was three-fifths (60 per cent) of his five-year start point. The court considered the adjustments made by the Judge were appropriate and did not intend to interfere with them. However, given the lesser charge involved (section 188(2)), the court considered that an appropriate start point was one of three years imprisonment. The same fraction or reduction would lead to an end sentence (rounding down) of 21 months imprisonment. Accordingly, the sentence of three years imprisonment imposed on the appellant was quashed, and a sentence of 21 months imprisonment was substituted. The court also imposed a post-release condition that the appellant attend and complete any other counselling or treatment programmes as directed by his Probation Officer.

Orders