Kavenga v Police - [2015] NZHC 2599

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 Respondents

Judgment:

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…

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.

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Details

Case: [2015] NZHC 2599
Decision Date: 21 October 2015

CaseChat Overview and Summary

In the High Court of New Zealand, Samielu Heitonga Kavenga appealed against his three-year imprisonment sentence imposed by Judge CJ Harding in the District Court at Tauranga for injuring with intent to cause grievous bodily harm. The appeal was heard on 21 October 2015, and the judgment was delivered on the same day. The central legal issue was whether the starting point for sentencing was too high, resulting in a manifestly excessive sentence. The Court of Appeal had previously established guidelines for sentencing grievous bodily harm offences, which the sentencing judge should adapt to the specific circumstances of the case. The appellant argued that the sentencing judge did not adjust the guidelines to reflect the lesser maximum penalty for injuring with intent to cause grievous bodily harm. The Crown submitted that a starting point of five years' imprisonment was within range. The High Court found that the starting point of five years' imprisonment was justified, considering the appellant's previous convictions. The court also found that the sentencing judge had generously allowed for various discounts, and the final sentence was within the range available to the judge. Consequently, the appeal was dismissed.

Orders