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 in 2000, 2002 and 2008.  Other offences include breaches of periodic detention and dishonesty offending.  There is the additional aggravating factor that this offending took place when the appellant was in breach of his bail conditions.

[11]       We consider the uplift of nine months was clearly available to the sentencing Judge.

Was the nine months discount insufficient?

[12]       Mr Vigor-Brown submitted that a full one-third discount should have been allowed on the basis that the appellant pleaded guilty at the first reasonable opportunity.

[13]       He noted that the appellant was originally charged with male assaults female which was later changed to the charge of injuring with intent to injure.  In the “Notice Of Filing Of Formal Written Statements” dated 25 September 2009 the appellant was charged with both injuring with intent to injure and assault with intent to injure.  He was committed for trial on 12 October 2009.  On 27 November 2009 he entered a plea of guilty to the charge of injuring with intent to injure.  A charge of aggravated robbery was reduced to a charge of theft and both charges were ultimately included in the same indictment.

[14]       The appellant did not enter his guilty plea at the first reasonable opportunity.  He did not enter the guilty plea until at least two months after he was charged with injuring with intent to injure.

[15]       In R v Hessell this Court made clear:[3]

First reasonable opportunity means what it says.  The maximum discount is appropriate only for those who are prepared to acknowledge their guilt at the outset.

[3] At [32].

[16]       The appellant was not precluded from entering a guilty plea to the charge of injuring with intent to injure because it was included in an indictment with the aggravated robbery charge.  He could have promptly acknowledged his guilt by entering a plea of guilty to the injuring charge prior to committal.

[17]       The Judge recognised that the focus had been primarily the charge of aggravated robbery which was subsequently reduced to theft, and reflected this by allowing more than the 20 per cent discount to which the appellant would have been entitled in terms of R v Hessell.

[18]       The discount of approximately 23 per cent allowed by the sentencing Judge was entirely appropriate.

Was the end sentence manifestly excessive?

[19]       It follows from the above findings that the end sentence reached from what the appellant accepts to be an appropriate starting point is not manifestly excessive.  Indeed, we consider the Judge’s reasoning was logical and careful, and that the end sentence is entirely appropriate.

Result

[20]       The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington