Karini v The Queen - [2010] NZCA 193

IN THE COURT OF APPEAL OF NEW ZEALAND
CA10/2010
[2010] NZCA 193
BETWEENVINCENT SUDDEN KARINI

Appellant

ANDTHE QUEEN

Respondent

Hearing:6 May 2010

Court:Chambers, Potter and Miller JJ
Counsel:R Vigor-Brown for Appellant

M A Woolford for Respondent

Judgment:17 May 2010 at 11 am

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Potter J)
Introduction
[1]        Vincent Sudden Karini appeals against a sentence of two years eight months imprisonment imposed by Judge Cooper in the District Court at Rotorua[1] after guilty pleas to charges of injuring with intent to injure and theft.
[1]      R v Karini DC Rotorua CRI-2009-069-001793 18 December 2009.
[2]        Mr Karini appeals against the sentence on three grounds:
a)The uplift of nine months from the starting point of two and a half years imprisonment adopted by the Judge was too high.
b)He should have received a full guilty plea discount of one-third because he pleaded guilty to the count of injuring with intent to injure at the earliest reasonable opportunity.
c)The final sentence is manifestly excessive.

Factual background
[3]        The offending that gave rise to the charge of injuring with intent to injure occurred when the appellant, in breach of his bail conditions, went from Gisborne to the home of the victim in Taupo. In response to the victim taking exception to his presence in her home, the appellant twice hit her in the head and also hit her on the shins and across her shoulder blade with a shovel handle. He throttled her until she thought she was going to die.
[4]        The theft charge had its genesis in an unrelated incident in which the appellant took items of clothing and a set of car speakers from an address the appellant attended with others, to collect money allegedly owing by the occupant.
Sentencing
[5]        For the charge of injuring with intent to injure Judge Cooper took a starting point of two and a half years imprisonment, which is not challenged by the appellant.
[6]        The Judge increased the starting point by nine months to reflect the appellant’s previous convictions for violent offending, breach of protection orders and the breach of conditions of bail that specifically required him to keep away from the victim.
[7]        He allowed a discount of nine months (approximately 23 per cent) accepting that in the particular circumstances something greater was required than the 20 per cent which would be warranted in terms of the guideline judgment in R v Hessell.[2]
[2]      R v Hessell [2009] NZCA 459.
[8]        On the theft charge, the Judge imposed a cumulative sentence of two months imprisonment, which was in line with a sentencing indication previously accepted by the appellant. The end sentence was thus two years eight months imprisonment.
Was the uplift too high?
[9]        Mr Vigor-Brown submitted that an uplift of six months would have been appropriate.
[10]       However, the appellant has accumulated forty-six previous convictions over seventeen years including four assaults, three of them on females…

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 Karini v The Queen

Details

AGLC: Karini v The Queen [2010] NZCA 193
Case: [2010] NZCA 193
Decision Date: 17 May 2010

CaseChat Overview and Summary

In the case of Karini v The Queen, the appellant, Vincent Sudden Karini, appealed against a two-year-eight-month imprisonment sentence imposed by the District Court at Rotorua following his guilty pleas to charges of injuring with intent to injure and theft. The appeal was heard by Chambers, Potter, and Miller JJ, with counsel representing the appellant and the respondent. The appellant's appeal was dismissed by the Court of Appeal of New Zealand.

The primary legal issues before the court were whether the uplift of nine months from the starting point of two and a half years imprisonment was too high, if the appellant should have received a full one-third guilty plea discount, and if the final sentence was manifestly excessive. The court considered these issues in light of the appellant's previous convictions, the nature of the offending, and the timing of the guilty plea.

The court found that the uplift of nine months was appropriate, given the appellant's extensive criminal history and the fact that the offending occurred while he was in breach of his bail conditions. The court also determined that the appellant did not plead guilty at the first reasonable opportunity, and therefore, a full one-third discount was not warranted. Instead, the court accepted that the nine months discount allowed by the sentencing judge was appropriate. Finally, the court concluded that the end sentence was not manifestly excessive, as it was derived from an appropriate starting point and was in line with the court's reasoning.

As a result of the court's findings, the appeal was dismissed, and the original sentence was upheld.

Orders