Kauwhata v R - [2010] NZCA 451

IN THE COURT OF APPEAL OF NEW ZEALAND
CA304/2010
[2010] NZCA 451
BETWEENCOLIN JEFFREY KAUWHATA

Appellant

ANDTHE QUEEN

Respondent

Hearing:30 August 2010

Court:Arnold, Keane and MacKenzie JJ
Counsel:C D Bean for Appellant

N F Flanagan for Respondent

Judgment:4 October 2010 at 10 am

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe sentence of imprisonment for wounding with intent to cause grievous bodily harm of five and a half years is quashed, as is the minimum period of imprisonment. A sentence of imprisonment of four years, eight months is substituted, with no minimum period of imprisonment.

REASONS OF THE COURT
(Given by Keane J)
[1]        On 28 April 2010 Colin Kauwhata was sentenced in the District Court, Hamilton, for wounding his wife with intent to cause her grievous bodily harm. Judge Burnett imposed on him a sentence of five and a half years imprisonment and a two-thirds minimum non-parole period. For a related breach of a protection order, she sentenced him concurrently to four months imprisonment.[1]
[1]      R v Kauwhata DC Hamilton CRI-2010-019-20, 28 April 2010.
[2]        On this appeal Mr Kauwhata contends that the sentence was in two ways manifestly excessive. The sentence of imprisonment itself, he contends, was excessive because the Judge took too high a starting point for his lead offence. The minimum term imposed, he contends also, was unwarranted.
[3]        Mr Kauwhata pleaded guilty to both offences on 17 February 2010, on his fifth appearance, having intimated his plea the week before, on a summary of facts prepared by the police. He was sentenced by the Judge on a much more complete statement of facts supplied by the Crown on 25 April, three days before sentence.
[4]        Mr Kauwhata did not challenge the accuracy of that summary, but it invited aggravating inferences not contained in the original summary. We question whether, after a plea has been entered, the Crown can introduce aggravating factors before sentence in the way that occurred here. Because, however, these factors were undisputed on sentence we have no call to take that any further.
Crown summary
[5]        This offending happened, the Crown summary narrates, some five weeks after Mrs Kauwhata had left the home accompanied by those of their children and grandchildren then living with them. Mr Kauwhata's alcoholism had proved increasingly destructive. There had been an incident, it seems. What that incident involved the summary does not say.
[6]        The incident may have been the basis on which Mrs Kauwhata almost immediately obtained a temporary protection order. After that order was served on Mr Kauwhata on 18 December 2009, the summary narrates, he told a neighbour, several times, he wanted to kill Mrs Kauwhata. She was unaware of this and remained in contact with Mr Kauwhata. She encouraged him to undergo alcohol counselling.
[7]        On New Year's Day 2010, the summary says, Mrs Kauwhata arrived to collect a barbeque and gas bottle Mr Kauwhata had offered to lend her, unaware that he had been begun drinking that day and had again…

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 Kauwhata v R

Details

AGLC: Kauwhata v R [2010] NZCA 451
Case: [2010] NZCA 451
Decision Date: 4 October 2010

CaseChat Overview and Summary

In the appeal of Kauwhata v R, Colin Jeffrey Kauwhata appealed against his sentence imposed by the District Court, Hamilton. Kauwhata was sentenced for wounding his wife with intent to cause grievous bodily harm and a related breach of a protection order. The legal issues in the appeal were whether the sentence of imprisonment and the minimum term imposed were manifestly excessive. The Court found that the starting point for the sentence was too high and the minimum term was unwarranted. The Court substituted a sentence of imprisonment of four years, eight months without any minimum term for the offence of wounding with intent to cause grievous bodily harm.

The Court of Appeal allowed the appeal and substituted the sentence of imprisonment of five and a half years and the two-thirds minimum term imposed for the offence of wounding with intent to cause grievous bodily harm. The concurrent sentence for the related breach of the protection order will remain. The Court found that the starting point for the sentence was too high and the minimum term was unwarranted. The Court substituted a sentence of imprisonment of four years, eight months without any minimum term for the offence of wounding with intent to cause grievous bodily harm.

Orders