Kawhena v Police - [2014] NZHC 908

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2014-463-000015 [2014] NZHC 908

SIDNEY JUNIOR KAWHENA Appellant

v

NEW ZEALAND POLICE Respondent

Hearing: 5 May 2014

Appearances:

M Dorset for the Appellant
A D Hill for the Respondent

Judgment:

6 May 2014

RESERVED JUDGMENT OF MOORE J

This judgment was delivered by on 6 May 2014 at 10:00am pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar
Date:

KAWHENA v NEW ZEALAND POLICE [2014] NZHC 908 [6 May 2014]

[1] Mr Kawhena pleaded guilty in the District Court to one charge of assaulting a child aged 13.

[2] On 17 March 2014, he was sentenced to four months’ home detention with supervision for a period of nine months and with the special conditions contained in the Provisions of Advice of Courts, namely to attend and complete such counselling/programme/treatment to address identified offending behaviour as may be directed by the Probation Officer and to the satisfaction of the Probation Officer and programme provider. Mr Kawhena now appeals that sentence contending that the sentence imposed was manifestly excessive, was arrived at wrongly and that the conditions were imposed without proper reasoning.

Facts

Summary

[3] The facts giving rise to the charge are set out in the agreed summary of facts.

[4] This discloses that the victim was the appellant’s 13 year old daughter. She and the defendant began to argue with the result that the defendant struck the victim in the face with both fists approximately five times. He then kicked her in the upper leg area about the same number of times. As a result of the assault, the victim received bruising to the right side of her face and a blackened right eye.

[5] In explanation to the Police, the defendant stated his daughter had become abusive and invited him to beat her.

Pre-sentence report

[6] In the Department of Corrections’ Provision of Advice to Courts (“PAC”), the appellant is assessed as having a moderate likelihood of re-offending due to his age and criminal history. The risk of harm he poses to the community is also assessed as moderate. The report records that assessment is mostly due to his violent propensity, identified as a contributing factor in this offending, along with misuse of alcohol. The appellant reported that on the day of the offending he had consumed 10 bottles of beer prior to the incident. The report writer observed that the appellant was

somewhat nonchalant about the assault, describing the blows as being delivered by slaps rather than punches. Of concern is the observation it took some “coaching” before Mr Kawhena accepted that his actions were wrong and indicated any level of remorse.

Victim

[7] The victim impact statement records that while the victim does not appear to be concerned about retribution, she is “a bit scared” of the appellant after what happened. She observed what she believed was drugs, alcohol and anger made her father do what he did. She reports no ongoing or enduring effects…

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: [2014] NZHC 908
Decision Date: 6 May 2014

CaseChat Overview and Summary

The case of Kawhena v Police involves an appeal by Sidney Junior Kawhena against his sentence for assaulting his 13-year-old daughter. Kawhena was sentenced to four months’ home detention with supervision and special conditions, including attending and completing a counselling program. The appeal argues that the sentence was excessive, arrived at wrongly, and the conditions were imposed without proper reasoning. The High Court of New Zealand reviewed the case, examining the legal principles and the sentencing decision made by the District Court.

The court identified several key legal issues, including whether the sentence imposed was manifestly excessive, if it was arrived at correctly, and if the conditions were properly justified. The court also considered the relevance of the appellant’s lack of remorse, his violent propensity, and the impact of alcohol consumption on the offence. Furthermore, the court examined whether the sentence of supervision combined with home detention was within the sentencing judge's jurisdiction.

The High Court found that the original sentence was indeed excessive, given the circumstances of the case and the appropriate starting point for sentencing. The court noted the appellant's lack of remorse, the severity of the injuries inflicted, and the breach of trust involved. It concluded that a starting point of six months’ imprisonment would have been appropriate, with a further discount for the guilty plea, resulting in an appropriate sentence of four and a half months’ imprisonment. The court substituted this with a sentence of nine weeks’ home detention while maintaining the post-detention conditions. The court also quashed the sentence of supervision as it found the sentencing judge lacked jurisdiction to impose it.

In summary, the High Court allowed the appeal, substituting the original sentence with a sentence of nine weeks’ home detention, maintaining the post-detention conditions, and quashing the sentence of supervision.

Orders