Karena v The King - [2024] NZCA 55

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA266/2023
[2024] NZCA 55

BETWEEN	RACHEL LUKHME KARENA Appellant
AND	THE KING Respondent

Hearing:	12 February 2024
Court:	Wylie, Edwards and Gault JJ
Counsel:	J P R Scott for Appellant H G Clark for Respondent
Judgment:	13 March 2024 at 11 am

JUDGMENT OF THE COURT

AThe appeal against conviction is dismissed.
BThe appeal against sentence is allowed.
CThe sentence of two years and ten months’ imprisonment is quashed and substituted with a sentence of two years and five months’ imprisonment.

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REASONS OF THE COURT

(Given by Gault J)

Introduction

Following a jury trial in the District Court at Whangārei, Ms Rachel Karena was convicted of wounding with intent to injure contrary to s 188(2) of the Crimes Act 1961. The charge related to stabbing an associate in the back during an altercation. Ms Karena was sentenced to two years and ten months’ imprisonment.[1]
[1]R v Karena [2023] NZDC 7945 [sentencing notes].
Ms Karena appeals against both conviction and sentence. The conviction appeal is brought on the grounds that:
(a)in a pre-trial decision, Judge Rzepecky erred in ruling inadmissible passages of Ms Karena’s police interview;[2] and
(b)the trial Judge, Judge Orchard, erred in ruling that a Crown witness, Mr Petersen, was a hostile witness and allowing the Crown to cross‑examine him on his previous inconsistent statements.[3]
[2]R v Karena [2022] NZDC 10270 [pre-trial decision].
[3]R v Karena [2022] NZDC 23106 [hostility ruling].
In her sentence appeal, Ms Karena argues that Judge Orchard’s starting point was too high and her discounts for rehabilitation and background factors were insufficient.
The appeal was filed two days out of time and an extension of time was granted.[4]

The Crown case

[4]R v Karena CA266/2023, 6 September 2023.

The Crown case was that on 1 May 2021, at approximately 7:30 pm, Ms Karena went to the victim’s house after being asked by the victim not to do so. Ms Karena parked her vehicle on the road and walked down the victim’s driveway.[5] Ms Karena was armed with a large, black-handled kitchen knife. The victim was not home, but she arrived home soon after to find Ms Karena standing on her driveway. As the victim was driving down the driveway, she confronted Ms Karena and asked her what she was doing there. Ms Karena tried to climb through the open car window. The victim got out of her car and told Ms Karena to leave. Ms Karena and the victim walked down the driveway together for a short distance. There was a struggle between them, during which Ms Karena dropped a can of gin on the driveway. The victim turned her back on Ms Karena and began walking back towards her vehicle. On her way, the victim bent down to pick up the can. As she was bending down, Ms Karena stabbed her in the back with the kitchen knife. This caused a two to three centimetre…

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 Karena v The King

Details

AGLC: Karena v The King [2024] NZCA 55
Case: [2024] NZCA 55
Decision Date: 13 March 2024 at 11 am

CaseChat Overview and Summary

In Karena v The King, the Court of Appeal of New Zealand considered Ms Rachel Karena's appeal against her conviction and sentence for wounding with intent to injure. The conviction appeal was dismissed, while the sentence appeal was allowed. The original sentence of two years and ten months' imprisonment was reduced to two years and five months' imprisonment.

Ms Karena was convicted of stabbing an associate in the back during an altercation. The appeal against conviction focused on two issues: the admissibility of certain passages from Ms Karena's police interview and the trial judge's ruling that a Crown witness, Mr Petersen, was hostile. The court found that the exclusion of the passages did not unfairly prejudice Ms Karena's case and that the judge was correct in declaring Mr Petersen a hostile witness.

The sentence appeal argued that the trial judge's starting point was too high and the discounts for rehabilitation and background factors were insufficient. The Court of Appeal agreed that the starting point was too high and reduced it from three and a half years to three years' imprisonment. The discounts for personal mitigating factors were deemed appropriate, leading to a final sentence of two years and five months' imprisonment.

In conclusion, the Court of Appeal dismissed the conviction appeal and allowed the sentence appeal, reducing the original sentence from two years and ten months' imprisonment to two years and five months' imprisonment.

Orders