Kavenga v Police
[2015] NZHC 2599
•21 October 2015
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2015-470-9 [2015] NZHC 2599
BETWEEN SAMIUELA HEITONGA KAVENGA
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 21 October 2015 Counsel:
W T Nabney for Appellant
N T C Batts for RespondentsJudgment:
21 October 2015
JUDGMENT OF BREWER J
Solicitors/Counsel: Bill Nabney (Tauranga) for Appellant
Hollister-Jones Lellman (Tauranga) for Respondent
KAVENGA v POLICE [2015] NZHC 2599 [21 October 2015]
Introduction
[1] On 23 February 2015 in the District Court at Tauranga, Judge CJ Harding sentenced Mr Kavenga to three years’ imprisonment.1 Mr Kavenga now appeals against that sentence.
[2] Mr Kavenga had pleaded guilty to one charge of injuring with intent to cause grievous bodily harm.2
Facts
[3] On the evening of 29 November 2014, Mr Kavenga was working at the Ziwi
Peak factory. The victim, a co-worker, was also working at the factory that evening.
[4] At around 7:30 pm, Mr Kavenga was outside the factory using a forklift to move pallets of frozen meat. The victim left the factory building with an armful of rubbish. His intention was to take the rubbish to a skip bin. The victim saw Mr Kavenga approaching, driving the forklift, and paused out of the path of the forklift to let Mr Kavenga drive past. Mr Kavenga stopped the forklift and told the victim not to “get smart” to him. The victim was unsure as to what Mr Kavenga was referring and responded by saying, “Nah, all good. Not getting smart”. The victim waited for Mr Kavenga to drive past him.
[5] Instead, and with no warning, Mr Kavenga turned the forklift towards the victim and accelerated directly at him. The forklift was carrying a full pallet of meat weighing 700 to 800 kilograms.
[6] The front of the forklift and the pallet hit the victim, shunting him back into a wire fence. The fence had a 30 cm high solid concrete block running along the bottom of it. The victim’s foot was trapped between this concrete block and the front of the pallet on the forklift. He was unable to get out from this position and was in
great pain.
1 New Zealand Police v Kavenga [2015] NZDC 3765.
2 Crimes Act 1961, s 189(1). This carries a maximum sentence of 10 years’ imprisonment.
[7] While the victim was pinned between the pallet and the fence, Mr Kavenga said, “You do it, I’ll donk you with the axe”. Mr Kavenga then reversed the forklift away from the victim. He got off the forklift and went to the side of the factory where a one metre long axe was hanging from the side of the building. The axe was used for chopping and splitting frozen blocks of meat.
[8] Mr Kavenga grabbed the axe off the wall, but before he could make his way back to the victim he was stopped by another worker. Mr Kavenga was told to go home by other workers, which he did.
[9] The victim suffered two broken bones to his lower left leg as a result of this assault and was required to undergo surgery.
Judge Harding’s decision
[10] Judge Harding identified the aggravating features of the offending to be the vulnerability of the victim, the seriousness of the injury and the use of a weapon in the form of the forklift. The Judge held that those three aggravating factors placed Mr Kavenga in band 2 of R v Taueki,3 which indicates a sentence range of five to
10 years. The Judge took five years as the starting point.
[11] The Judge then gave Mr Kavenga a 25 per cent discount to reflect his early guilty plea and a further eight per cent discount for genuine remorse and otherwise good character. This was a total discount of 33 per cent. This brought the sentence down to three years four months. The Judge then reduced that sentence by a further four months by way of additional credit for what he described as Mr Kavenga’s community involvement.
[12] Ultimately, Judge Harding sentenced Mr Kavenga to three years’ imprisonment. The Judge also ordered that Mr Kavenga pay $3,000 in emotional harm reparation to the victim. The reparation order was prompted by Mr Kavenga’s
offer to pay that amount.
3 R v Taueki [2005] 3 NZLR 372 (CA).
Ground for appeal
[13] Mr Kavenga appeals his sentence on the basis that the Judge adopted a start point that was too high. This, he says, resulted in a sentence that was manifestly excessive.
[14] Mr Nabney succinctly identified the principal point on appeal. It is that the Judge did not adjust the Taueki bands to reflect the fact that the charge here was a lesser one with a lesser maximum penalty.
Approach to appeal
[15] An appeal against sentence must be allowed if the Court is satisfied there has been an error in the sentence imposed for any reason and that a different sentence should be imposed.4 The principles behind the law are well known, and not changed by the Criminal Procedure Act 2011.5 A sentence will be manifestly excessive if it is substantially or significantly more severe than it ought to have been having regard to the seriousness of the offending and the culpability of the offender.6
[16] Because an appellant must satisfy the Court that a different sentence should be imposed, the High Court will not intervene where the sentence is within a range that can be properly justified by accepted principles. In deciding whether a sentence is manifestly excessive, the focus is principally on the effective end sentence rather than the process by which the sentence is reached.7 Accordingly, I will consider the sentencing exercise afresh.
Starting point
[17] Mr Nabney submits that a start point of three to four years should have been adopted by the sentencing Court. Mr Batts for the Crown submits that a start point
of five years’ imprisonment was within range.
4 Sentencing Act 2002, s 250.
5 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
6 At [33], [35].
7 Ripia v R [2011] NZCA 101 at [15].
[18] In R v Brown,8 the Court of Appeal made it clear that the Taueki guidelines can be applied by analogy to a charge of injuring with intent to cause grievous bodily harm. But the Court stressed that considerable care is required in the application of the Taueki guidelines to this sort of offending. It held:9
Sections 188, 189 and 191 contain a quite complex matrix of different levels of intention and of consequences in the infliction of violence. The gradations involved require a close focus on the facts of each case. That will not be assisted by attempting to adapt the Taueki guidelines to offending which is essentially different in nature from that considered in Taueki. It is well established that the adaptation of the Taueki guidelines in such cases is not a matter of mechanical adjustment.
[19] In the earlier case of R v D, the Court of Appeal emphasised:10
While adaptation of the Taueki guidelines is encouraged, mechanical arithmetical adjustment is not. Mechanical adaptation undermines judicial evaluation of the seriousness of the particular offending and the culpability of the offender, both of which are crucial parts of the sentencing process: see Taueki at [30].
[20] The Court of Appeal decision in Taueki sets out a list of aggravating features that contribute to the seriousness of grievous bodily harm offending. The Court then sets out three bands for sentencing based on those aggravating features.
[21] I see the aggravating features in this case to be: (a) Serious injury;
(b) Use of a weapon (the forklift); and
(c) The vulnerability of the victim.
[22] I have counted the vulnerability of the victim as an aggravating feature because the Court of Appeal in Taueki held that the victim would be vulnerable where there is a disparity in the strength or size of the attacker and the victim.11 In
the present case, Mr Kavenga was driving a heavy motorised forklift. The victim
8 R v Brown [2009] NZCA 288.
9 At [14].
10 R v D [2008] NZCA 267 at [43].
11 R v Taueki, above n 3, at [31](i).
was standing by the vehicle, unprotected. As Mr Batts puts it, the fact that the appellant was driving the forklift changed the nature of the confrontation: it was no longer “man versus man” but “man versus machine”. This rendered the victim vulnerable.
[23] As I have identified three aggravating features, as did the Judge, the offending falls into band two of Taueki, which has a starting point of between five years and 10 years’ imprisonment. Adjusting this band downward to reflect the lower charge of injuring with intent to cause grievous bodily harm in the light of its maximum sentence would result in a starting point somewhere within the range of three years six months’ imprisonment and seven years’ imprisonment.
[24] I accept Mr Nabney’s submission that the Judge did not specifically address whether his identification of a start point was done in the light of the lesser maximum sentence of the charge of injuring with intent to cause grievous bodily harm. Whether the Judge had reflected upon that difference or not, I do not know. However, it does not change the evaluation I have to make. My focus is on the final result, not the process by which it was reached.
[25] Although not referred to me by counsel, I have found the decision of the Court of Appeal in R v Roycroft12 to be of assistance. In that case, the appellant, Mr Roycroft, also pleaded guilty to a charge of injuring with intent to cause grievous bodily harm. I will not go through the facts. There are basic similarities revolving around the use by Mr Roycroft of a car as a weapon.
[26] The Court of Appeal held that a start point of three to five years would be appropriate for this kind of offending. In Mr Roycroft’s case, the Court said that an extra deterrent element was required because of a past offence committed by Mr Roycroft. That put the start point for him at five years’ imprisonment.
[27] In this case, Mr Kavenga has quite a list of previous convictions. Two which are old are, nevertheless, relevant because they involved violence and sentences of
imprisonment resulted.
12 R v Roycroft CA312/01, 4 September 2002.
[28] The first was assault with intent to injure committed in 1997. Mr Kavenga
received a sentence of one year’s imprisonment suspended for six months. The record notes that this ended with him actually being sentenced to six months’ imprisonment. The second conviction is in 2003 and is a charge of injuring with intent to injure. Mr Kavenga received a sentence of one year and three months’ imprisonment.
[29] As the pre-sentence report noted, the current offending is an increase in seriousness. Nevertheless, the Judge did not impose an uplift from the starting point to account for these previous convictions.
[30] Standing back, I am of the view that the Judge’s starting point of five years’ imprisonment is justified on the basis that it incorporates an uplift that takes into account Mr Kavenga’s previous convictions for the purposes of deterrence and community protection.13 I do think it is at the top of the start point range available to the Judge, but I do not see any substantive error when Mr Kavenga’s previous convictions are factored in.
Adjustments
[31] The Judge discounted Mr Kavenga’s sentence by 25 per cent for the early guilty plea and then eight per cent to take into account remorse and otherwise good character. He took off a further four months for additional community involvement. This resulted in the end sentence of three years’ imprisonment.
[32] Mr Nabney submits that the Judge did not appear to allow any discrete credit for Mr Kavenga’s offer of emotional harm reparation in the sum of $3,000 and that he should be entitled to a further discount for that offer of reparation. The Crown submits that this offer was specifically mentioned by the Judge and was factored in to the eight per cent reduction for genuine remorse. I agree with the Crown. The
Judge records that Mr Kavenga has been “prepared to make a considerable emotional
13 An uplift for previous convictions is appropriate where there is a particular need for individual deterrence and/or a need to protect the community from continual offending. The purpose is not to re-punish the defendant for previous offending: Blackmore v R [2014] NZCA 109 at [12]. It is for this reason that an uplift for previous convictions must be proportionate to the starting point appropriate for the circumstances of the offending: Taylor v R [2012] NZCA 332 at [46].
harm reparation payment” and that the Judge takes that into account.14 The increase of the discount to 33 per cent for remorse was generous.15 It must have contemplated Mr Kavenga’s offer to pay reparation.
[33] In my view the discounts assessed by the Judge were extremely generous. I do not see why he described Mr Kavenga as otherwise of good character. He has a significant criminal record starting in 1997 with a conviction for male assaults female and the conviction for assaulting with intent to injure, to which I have referred previously. He offended in 1998, 1999, 2000, 2003, 2009 and 2013.
[34] The final reduction of four months for his community involvement, which equates to another seven per cent of the starting point, is part of that generosity. However, neither Mr Nabney nor the Crown seeks to challenge any of the discounts and I will not interfere with these allowances. One of my reasons for that is my identification that allowing for the previous convictions, the five years starting point was at the top of the available range.
Decision
[35] I am satisfied that the end point of three years’ imprisonment was within the
range available to the Judge bearing in mind the seriousness of the offending and
Mr Kavenga’s criminal history.
14 New Zealand Police v Kavenga, above n 1, at [6].
15 See, for example, McArthur v R [2013] NZCA 600 at [13]–[14] the full discount of 25 per cent for the guilty plea was increased to just under 30 per cent of the starting point of 17 and a half years’ imprisonment, in recognition of the offender’s genuine remorse and payment of reparation of $10,000. That was a significant sum for him and realistically represented all that was possible for him
[36] Mr Kavenga’s appeal is dismissed.
Brewer J
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