Kauwhata v The Queen - [2010] NZCA 437

IN THE COURT OF APPEAL OF NEW ZEALAND
CA192/2010
[2010] NZCA 437
BETWEENHEMI HEREMAIA KAUWHATA

Appellant

ANDTHE QUEEN

Respondent

Hearing:8 September 2010

Court:O'Regan P, Stevens and Simon France JJ
Counsel:E J Forster for Appellant

A Markham for Respondent

Judgment:24 September 2010 at 12.30pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Simon France J)
Introduction
[1]        This is a somewhat unusual sentence appeal. Judge McIntosh sentenced Mr Kauwhata to a term of two years, nine months’ imprisonment in relation to four burglary charges. He accepts the sentence was available and in accordance with authority. However, he says that three days earlier the same Judge treated a similar offender much more leniently and therefore his sentence is unfair and should be reduced.
[2]        In this judgment we examine first why the two cases are not comparable, and then comment briefly on the availability of a disparity argument based on the sentences of unconnected offenders.
The two cases
(a)         Mr Kauwhata
[3]        Mr Kauwhata faced charges in relation to four burglaries. He pleaded guilty to one, and was found guilty, following jury trial, of the others. Three of the premises were commercial in nature, and the fourth was of a Golf Club. The total reparation bill over the four burglaries was $6,082.61. Mr Kauwhata maintains his innocence in relation to the charges, to which he pleaded not guilty.
[4]        Mr Kauwhata is 31 years old and in a stable relationship. He has a number of previous convictions, although the prior offending stopped ten years ago. The offending, which occurred in Australia, involves “stealing” (x 6), burglary (x 6), receiving (x 2) and miscellaneous other offending, the most significant of which was armed robbery.
[5]        For the four offences the Judge took a total starting point of four years, noting that there was a gang connection to the offending. There was next a six month uplift for the previous record. The Judge then reduced the sentence to two years, nine months to reflect the guilty plea, and some co‑operation with the police. The police do not accept the latter point in that seemingly the information Mr Kauwhata provided was incorrect.
[6]        Mr Kauwhata’s sentence is a classic example of the principle that on appeal the focus must be the end sentence. Whilst one might debate the correctness of four years as a starting point, there was then applied a reduction of 40%. Yet, Mr Kauwhata pleaded guilty to only one of the four counts, showed no remorse in relation to the others, and at best tried to assist police. In such circumstances an overall reduction of 20% would have been generous; 40% was unavailable.
(b)         Mr Robert Kemp
[7]        Mr Kemp was sentenced on one charge of burglary, two counts of theft and four charges of breach of release conditions. Concerning the burglary, Mr Kemp broke into a house where he knew the occupants. He stole a laptop. It was recovered.
[8]        There is…

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 The Queen

Details

AGLC: Kauwhata v The Queen [2010] NZCA 437
Case: [2010] NZCA 437
Decision Date: 24 September 2010

CaseChat Overview and Summary

The appellant, Hemi Heremaia Kauwhata, appealed against his sentence for four burglary charges, arguing that it was unfair in comparison to a similar sentence given to another offender by the same judge three days earlier. The Crown accepted that the sentence was within the range available and in accordance with the relevant authorities, but argued that the cases were not comparable and that disparity between unconnected cases was not a valid basis for appeal. The Court of Appeal dismissed the appeal and upheld the sentence. The Court found that the two cases were not comparable as they involved different offenders with different backgrounds and different offending patterns. The appellant had four burglary charges with a gang connection, while the other offender had one burglary charge and some minor theft charges. The Court also noted that the disparity between unconnected cases was a difficult ground of appeal to advance and required a high degree of similarity in the circumstances of each case and each offender. The Court emphasised that the correctness of the sentence under appeal should be measured by reference to the relevant binding authorities. The appeal was dismissed, and the sentence upheld. The Court did not make any orders regarding costs.

Orders