Kauvai v R
[2017] NZCA 241
•9 June 2017 at 11.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA114/2017 [2017] NZCA 241 |
| BETWEEN | WESLEY JOHN KAUVAI |
| AND | THE QUEEN |
| Hearing: | 4 May 2017 |
Court: | Miller, Gilbert and Katz JJ |
Counsel: | S Thode for Appellant |
Judgment: | 9 June 2017 at 11.00 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Katz J)
Introduction
Following a jury trial Wesley John Kauvai was found guilty on charges of injuring with intent to injure and assault with intent to injure. Judge Ronayne sentenced Mr Kauvai to concurrent sentences of two years and one month’s imprisonment on the injuring charge and 18 months’ imprisonment on the assault charge.[1] Mr Kauvai appeals his sentence on the basis that the Judge erred in relation to both the appropriate starting point and the remorse discount, resulting in a sentence that is manifestly excessive.
Facts
[1]R v Kauvai [2017] NZDC 5068 at [26] [DC Decision].
The Judge noted that he had heard the evidence and was satisfied that the police summary of facts accurately reflected what happened. With reference to that document, he summarised the facts of the offending as follows:
[4] … About 1.00 am on 18 June last year, you were at a Castor Bay address. Also present at the address were Matthew [Stuart] and two young women. You were heavily intoxicated. At this time you began to make unwanted advances to one of the women. She kept telling you to stop touching her.
[5] Mr [Stuart] attempted to intervene and you punched him in the face using a closed fist and a physical altercation occurred. That all happened Mr Kauvai because Mr [Stuart] simply asked you to leave. One of the women intervened and you grabbed her and threw her outside. The evidence was that she hit her head and lost consciousness momentarily. You attempted to help her up from the ground. Mr [Stuart] attempted to get you away from her. You then threw Mr [Stuart] onto the ground. You began punching and kicking him multiple times. You then threw another woman out of the way and onto an internal wall of the house.
[6] Mr [Stuart] received a fractured jawbone. He required surgery and now has two metal plates in his jaw. I have victim impact statements and I have taken those into account.
Sentencing decision
The Judge adopted a starting point of two years and 10 months’ imprisonment on the lead offence of injuring with intent to injure. He discounted the starting point by 10 per cent (rounded up to four months) for prior good character.[2] The Judge then allowed a further two months’ discount for remorse[3] and an additional three months’ discount for restrictive bail terms.[4] This resulted in an end sentence of two years and one month’s imprisonment on the charge of injuring with intent to injure. A concurrent sentence of 18 months’ imprisonment was imposed for the charge of assault with intent to injure.
Did the Judge err in setting the starting point for the lead offending?
[2]At [22].
[3]At [24].
[4]At [25].
Mrs Thode submitted that the Judge erred in relying on the police summary of facts, as that document related to alleged offending against not only Mr Stuart, but also the two women who were present. Mr Kauvai was only convicted, however, of assaulting Mr Stuart. Mrs Thode submitted that, due to his reliance on the summary of facts, the Judge assessed Mr Kauvai’s offending as more serious than it actually was.
It is apparent from a review of the judgment as a whole, however, that the Judge only had regard to the facts relevant to the offending against Mr Stuart when assessing the seriousness of Mr Kauvai’s offending. In particular, the Judge stated that:
[17] I identify in your case the aggravating features of the overall offending in this way. First, extent of violence. There was serious violence involved here. There were multiple punches landed. You continued your attack while the victim was on the ground trying to protect himself. Quite simply put, you lost control completely. You also manhandled women coming to help. This factor of the extent of violence I assess as present to a moderately high degree.
[18] Secondly, although it is submitted by the Crown that there was a degree of premeditation the term is perhaps, with respect, inapt. But the attack was prolonged and it was restarted. This factor is present to a low to moderate extent.
[19] Thirdly, serious injury was inflicted. The victim seems stoic but that does not avid this factor, it simply means that perhaps the psychological impact is not as bad as it could otherwise have been. I identify this aspect as a factor present to moderately high degree.
[20] Fourthly, but taking care not to double count, you quite deliberately attacked the victim’s head, this is self-evident. This I view as a moderate factor in this case and that is because the extent of harm is to some extent already reflective of this fact. Nevertheless, it is part and parcel of any assessment of your culpability.
[21] Lastly for the initial punch, I note that this was essentially a surprise attack because you were angered by justifiably being asked to leave the property. You then attacked the victim once he was on the ground. This is a moderate factor.
Mrs Thode submitted that the Judge’s reference to “manhandling women coming to help” was inappropriate and irrelevant, given that Mr Kauvai was acquitted of the charges in relation to the two female complainants. We note, however, that it was accepted at trial that there was at least some sort of physical contact between Mr Kauvai and the two female complainants, such as him pushing them out of the way. Further, the Judge’s reference to Mr Kauvai manhandling women was made in the context of his discussion of the seriousness of the violence that Mr Kauvai inflicted on Mr Stuart. In context, it illustrates the extent of his loss of control at the time of his assault on Mr Stuart. The key factors relied on by the Judge, however, in concluding that the level of violence was serious, were that there had been multiple punches, and that Mr Kauvai had continued the attack even after Mr Stuart was lying defenceless on the ground. Those factors readily support the Judge’s conclusion that the level of violence was serious.
The Judge’s reliance on the summary of facts is also said to have resulted in him erroneously concluding that Mr Kauvai had kicked Mr Stuart, when there was no evidence to support such a conclusion.
The Judge did initially refer to Mr Kauvai having punched and kicked Mr Stuart while he was on the ground.[5] However, when the Judge subsequently set out the aggravating features of the offending he did not refer to kicking, but only punching.[6] There is nothing to suggest that the Judge’s initial brief reference to kicking caused him to err in his overall assessment of the seriousness of the offending. As will be seen, we consider that the starting point adopted by the Judge was available when kicking is put to one side.
[5]At [5].
[6]At [17]–[21].
Mrs Thode also took issue with the fact that there was a reference to Mr Kauvai being “heavily intoxicated” in the summary of facts, but no reference to the complainants also being intoxicated. There is nothing in this point. Intoxication was irrelevant to Judge Ronayne’s sentencing analysis.
Mrs Thode’s next submission was that the Judge failed to consider two mitigating features of the offending:
(a)that the attacks were committed in “excessive self-defence”; and
(b)the injuries sustained by Mr Kauvai during the attack.
In R v Taueki this Court stated that excessive self-defence is a matter reducing culpability.[7] In our view it was open to the Judge to conclude, however, that Mr Kauvai was not acting in self-defence when he assaulted Mr Stuart.[8] Therefore, any issue of “excessive” self-defence did not arise. Further, the injuries that Mr Kauvai sustained during the attack are not a mitigating feature of the offending. They are a natural consequence of his unlawful assault on Mr Stuart.
[7]R v Taueki [2005] 3 NZLR 372 (CA) at [32(b)].
[8]DC Decision, above n 1, at [7].
Finally, Mrs Thode submitted that the starting point was excessive relative to other similar cases. In setting a starting point of two years and ten months’ imprisonment the Judge referred to the tariff cases of R v Taueki[9] and R v Nuku,[10] but recognised that the aggravating factors in those cases are not be applied in a “mechanically formulated way”.[11] The Judge also referred to two cases he considered to be analogous: Hala v R[12] (a starting point of two years and ten months’ imprisonment) and Knight v Police (a starting point of three years’ imprisonment).[13]
[9]R v Taueki, above n 7.
[10]R v Nuku [2012] NZCA 584, [2013] 2 NZLR 39.
[11]DC Decision, above n 1, at [11].
[12]Hala v R [2013] NZCA 237.
[13]Knight v Police HC Wellington CRI-2010-485-59, 22 July 2010.
Mrs Thode submitted that Hala and Knight, in addition to a further case,
R v Harris (starting point of two years and six months’ imprisonment),[14] all suggest that the sentence imposed was manifestly excessive. We disagree. Judge Ronayne identified a number of aggravating factors of the offending, as set out in the quoted passage at [5] above. Given those aggravating factors, a starting point of two years and ten months’ imprisonment is within the available range in accordance with
R v Taueki[15] and R v Nuku.[16] Relatively limited assistance can be gained from references to various High Court decisions, which each turn on their own individual facts. In any event, the starting point adopted by the Judge is not out of step with those adopted in similar cases. The present offending most closely aligns with that in Hala, where this Court upheld a starting point of two years and ten months’ imprisonment, the same as that adopted by Judge Ronayne.[17]
Did the Judge err in his assessment of Mr Kauvai’s remorse?
[14]R v Harris [2008] NZCA 528.
[15]R v Taueki, above n 7.
[16]R v Nuku, above n 10.
[17]Hala v R, above n 12, at [8].
As we have noted above, the Judge discounted the starting point by 10‑per‑cent (rounded up to four months) for prior good character. There was no challenge, by either party, to the level of that discount. Such a discount was clearly well justified in the circumstances, given that Mr Kauvai, at 37 years old, has no prior convictions.
Mrs Thode did challenge, however, the adequacy of the Judge’s two-month remorse discount. The Judge made the following comments in relation to Mr Kauvai’s remorse:
[7] … You appear to be continuing to protest your innocence to the probation officer because you say that you merely intervened in an argument and, after having two bottles thrown at you, which hit your head, you felt that you acted in self-defence. The jury rejected that and I reject that.
[8] The writer of the report said that you demonstrate remorse for your offending and that you are willing to pay reparation and damages. You have prepared a written apology. I also have a letter from Mr [Stuart] and I have taken that into account. The reality Mr Kauvai is that you are still protesting your innocence and saying that this all happened because you were hit on the head twice with a bottle or bottles.
…
[23] As to separate and identifiable remorse I make these comments. First, you defended the charges. Secondly, you maintain, to an extent, a self‑defence fiction. This is simply trying to shift blame onto the victim. I do not accept what you say. Injuries you suffered were, in my view, having heard the evidence, undoubtedly a result of the victim trying to defend himself from your attack and not the other way round. That is consistent with what the jury thought of the matter.
[24] Thirdly, in relation to this issue of remorse, you have prepared a letter of apology and you have told the probation officer that you apologised in person. No doubt however in an endeavour to avoid any suggestion that you had actually accepted responsibility, in evidence you denied apologising for anything except the situation. There is a flavour of manipulation in your behaviour in this regard. I do not think your remorse counts for a great deal. I give you two months’ discount for your expression of remorse.
Mrs Thode submitted that Mr Kauvai genuinely believed (and continues to believe) that he was acting in self-defence. It would therefore be disingenuous of him to change his position on that issue after trial. Nevertheless, she submitted, his genuine remorse is evidenced by his apology to Mr Stuart, the letter of support that Mr Stuart wrote for him, his willingness to attend a restorative justice conference, and the pre-sentence report.
The remorse discount afforded by the Judge was two months, which was almost a six-per-cent discount from the starting point. We reject the submission that such a discount was insufficient in the circumstances. Indeed it could be seen as being on the generous side.
Is the concurrent sentence on the assault with intent charge manifestly excessive?
In her written submissions, Mrs Thode submitted that:
On the lesser charge of assault with intent, the appellant was also sentenced to two years’ and one month imprisonment.
Counsel submits that in light of Tamihana v R[18] that sentence – on its own, is manifestly excessive and fails to take into account the principles of totality.
[18]Tamihana v R [2015] NZCA 169.
Mr Kauvai was not sentenced to two years and one month’s imprisonment on the assault charge, but 18 months’ imprisonment, as Mrs Thode now accepts. There is no breach of the totality principle. Mrs Thode nevertheless submitted that the sentence on the lesser charge was manifestly excessive on a standalone basis. It should therefore be reduced, regardless of the fact that any reduction will not impact on the overall length of the sentence.
The injuring with the intent to injure charge relates to the initial part of the incident, when Mr Kauvai punched Mr Stuart in the head repeatedly. This resulted in profuse bleeding from Mr Stuart’s mouth and a serious fracture to his jaw, in two places, requiring emergency surgery and the insertion of two metal plates.
The assault with intent to injure charge relates to the second part of the incident, when Mr Kauvai continued to punch Mr Stuart while he was lying on the ground. The evidence of one of the two women present was that Mr Kauvai was crouched over Mr Stuart at the time, punching him around his face and shoulders or “just anywhere he could hit him” and that Mr Stuart was “just trying to cover his face because he’d been smacked so many times”. The witness described “blood pouring” from Mr Stuart’s face and mouth.
Mr Stuart’s degree of vulnerability at the time was high. He was suffering from a severely broken jaw, was bleeding profusely, and was lying prone on the ground with a significantly larger and stronger man crouching over him and punching him repeatedly in the head and shoulder region. He was trying desperately to protect his severely injured face with his arms. We are not persuaded that a sentence of 18 months’ imprisonment was manifestly excessive in such circumstances.
The first strike warning
Finally, Mrs Thode requested that we quash the first strike warning given by the Judge, as injuring with intent to injure does not qualify as a serious violent offence (as the Crown accepted). We decline to do so, as pursuant to s 180 of the Criminal Procedure Act 2011 the jurisdiction to quash a first strike warning made in error lies with the sentencing Judge.
Result
The appeal is dismissed.
Solicitors:
Crown Solicitor, Auckland for Respondent
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