Kawau v Police - [2018] NZHC 2508

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2018-412-000013

[2018] NZHC 2508

BETWEEN
CHARLIE JUNIOR KAWAU

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 24 September 2018

Appearances:

S G Vidal for Appellant R P Bates for Respondent

Judgment:

25 September 2018

JUDGMENT OF DUNNINGHAM J

Introduction

[1] The appellant, Mr Kawau, was convicted of wounding with intent to cause grievous bodily harm1. On 6 August 2014, he was sentenced to five years and seven months imprisonment by Judge Phillips.2 A minimum period of imprisonment of three years, six months was also imposed. Mr Kawau appeals his sentence, on the basis that the Judge assumed that the victim’s injuries included loss of her eye when this was not, in fact, the case.

[2] Given the time that has elapsed since sentencing, Mr Kawau also seeks leave to appeal his sentence out of time.

1 Crimes Act 1961, s 188(1).
2 R v Kawau DC Dun CRI-2014-012-001486 [6 August 2014].

KAWAU v NEW ZEALAND POLICE [2018] NZHC 2508 [25 September 2018]

Background facts

[3] Mr Kawau had, at the time of the offending, been in a relationship with the victim for approximately 18 months. The pair had a history of domestic violence and Mr Kawau had previously been convicted of domestic violence offences against the victim. He also has some 74 convictions, made up of a raft of violent offences, including assaults against females, police and members of the public, along with possession of an offensive weapon.

[4] On the morning of 18 May 2014, Mr Kawau and the victim had an argument. The victim ran to a neighbouring address in fear, trying to raise the alarm. She was observed by the occupant of the address to be physically shaking and scared.

[5] Between 19 and 20 May 2014 the victim was violently assaulted by Mr Kawau, who repeatedly struck her about the head, face and eyes, body and arms. The victim was taken to Dunedin hospital by Mr Kawau at approximately 9.00am on 20 May.

[6] The victim had severe bruising and swelling to her head, face and particularly her eyes. Her right eye was swollen almost completely shut. The victim had fractured bones in her left wrist and required a plaster cast.

[7] The victim was discharged from hospital on the evening of the 20 May. However, over the ensuing days suffered ongoing pain and nausea from her injuries to the extent that she was required to be re-admitted to hospital for further treatment. The damage to the victim’s right eye was such that she has lost sight in it.

[8] When questioned by police, both the victim and Mr Kawau said she was attacked by a group of unknown females who had been at her address. The victim went along with this story for some time. Mr Kawau later admitted to causing the injuries and pleaded guilty to the charge.

District Court decision

[9]Judge Phillips imposed an overall sentence of…

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: [2018] NZHC 2508
Decision Date: 25 September 2018

CaseChat Overview and Summary

The case of Kawau v Police involved an appeal against the sentence handed down by the District Court. The appellant, Mr Kawau, sought to appeal the sentence imposed on him for wounding with intent to cause grievous bodily harm, arguing that the sentencing judge had made an erroneous assumption about the extent of the victim's injuries. Additionally, Mr Kawau sought leave to appeal out of time, as his appeal was filed nearly four years after the sentencing decision. The central legal issues in this case were whether the District Court judge had erred in the imposition of the sentence and whether leave to appeal the sentence out of time should be granted.

The Court found that the District Court judge had sentenced Mr Kawau on the basis of entirely correct assumptions about the victim's injuries, and therefore there was no basis for suggesting that the judge had sentenced on an erroneous understanding of the facts. The Court further held that the sentence was not manifestly excessive and did not warrant correction by the High Court. The Court also found that the appeal was not meritorious, and that the interests of justice did not support an extension of time for the appeal, as the appellant had not demonstrated any exceptional circumstances that would warrant such an extension. Consequently, leave to appeal the sentence out of time was declined.

In conclusion, the High Court found that the District Court judge had not erred in the imposition of the sentence, and that the appeal was not meritorious. Leave to appeal the sentence out of time was also declined. The District Court's sentencing decision was therefore upheld, and Mr Kawau's appeal was dismissed.

Orders