Kauvai v R - [2017] NZCA 241

IN THE COURT OF APPEAL OF NEW ZEALAND

CA114/2017
[2017] NZCA 241

BETWEEN	WESLEY JOHN KAUVAI Appellant
AND	THE QUEEN Respondent

Hearing:	4 May 2017
Court:	Miller, Gilbert and Katz JJ
Counsel:	S Thode for Appellant RMA McCoubrey for Respondent
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…

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 Kauvai v R

Details

AGLC: Kauvai v R [2017] NZCA 241
Case: [2017] NZCA 241
Decision Date: 9 June 2017 at 11.00 am

CaseChat Overview and Summary

In Kauvai v R, the Court of Appeal of New Zealand considered an appeal against sentence brought by Wesley John Kauvai. Kauvai was found guilty of injuring with intent to injure and assault with intent to injure, following a physical altercation with Matthew Stuart at a Castor Bay address. Kauvai was heavily intoxicated at the time and had made unwanted advances to one of the women present. Stuart attempted to intervene and was subsequently punched and kicked by Kauvai, suffering a fractured jawbone that required surgery. Kauvai was sentenced to two years and one month’s imprisonment for the injuring charge and 18 months’ imprisonment for the assault charge, to be served concurrently. Kauvai appealed his sentence, arguing that the starting point and the remorse discount were incorrectly assessed by the sentencing Judge.

The Court of Appeal found that the Judge had not erred in setting the starting point for the lead offence, as the Judge had only considered the facts relevant to the offending against Stuart when assessing the seriousness of Kauvai’s actions. The Judge had identified several aggravating factors, including the extent of violence, prolonged attack, and serious injury inflicted, which supported the starting point of two years and ten months’ imprisonment. The Court also found that the Judge did not err in his assessment of Kauvai’s remorse, as the two-month discount was reasonable given the circumstances.

Regarding the concurrent sentence for the assault charge, the Court of Appeal concluded that a sentence of 18 months’ imprisonment was not manifestly excessive, considering the degree of vulnerability of Stuart during the attack and the nature of the injuries he sustained.

The appeal was ultimately dismissed, and the Court of Appeal upheld the original sentence imposed by the sentencing Judge.

Orders