Kingi v R - [2013] NZCA 393

IN THE COURT OF APPEAL OF NEW ZEALAND

CA182/2013
[2013] NZCA 393

BETWEEN	TUATA KINGI Appellant
AND	THE QUEEN Respondent

Hearing:	20 August 2013
Court:	White, Venning and Courtney JJ
Counsel:	C D Bean for Appellant M R Davie for Respondent
Judgment:	26 August 2013 at 10.00 am

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed.
BThe sentence of eight years’ imprisonment is quashed and a sentence of seven years, two months’ imprisonment is substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Venning J)

Following a jury trial in the District Court at Hamilton Tuata Jamie Kingi was convicted of one count of aggravated burglary, one count of aggravated robbery and one of possession of cannabis for sale. Judge Tompkins sentenced him to eight years’ imprisonment.[1] Mr Kingi appeals against the sentence.

Background

[1]R v Kingi DC Hamilton CRI-2010-019-10059, 27 February 2013.

At about 10.30 pm on the night of 27 November 2010 Mr Kingi and two male associates went to the complainant’s address and broke into a small room at the rear of the garage. They believed cannabis may have been hidden there. One of Mr Kingi’s associates then knocked on the front door and asked the complainant for her flatmate, (from whom Mr Kingi had previously purchased cannabis). The complainant told him that the flatmate was not at home. A short time later, Mr Kingi and his two associates returned to the address. They again knocked on the door. When the complainant opened it she was forced backwards into the lounge then pushed down and onto her back by two of the offenders.
The offenders were disguised. One of them sat on top of her and held a knife to her throat while demanding the keys to a utility vehicle parked in the driveway. As the vehicle belonged to her flatmate the complainant was not aware where the keys were.
Mr Kingi and his two associates all took turns at straddling the complainant’s chest and threatening her with a knife. One of Mr Kingi’s associates went into a bedroom, picked up the complainant’s 18 month old child and returned to the lounge. While holding a knife to the baby’s throat he again demanded the keys to the vehicle. The baby was eventually dropped onto a couch. One of the offenders stayed in the house while the other two went outside and smashed a window of the utility. The flatmate had a toolbox in the utility where he stored his valuables. Mr Kingi’s associates found and stole about two ounces of cannabis with a value of around $800. Mr Kingi and his associates also stole items belonging to the complainant and her flatmates, including three cell phones, a laptop computer, a green sweatshirt and house keys. They then left.
Two days later Mr Kingi was captured on a security camera leaving one of the cell phones on a massage chair in Centre Place, Hamilton. A search warrant was executed at his address. The complainant’s laptop…

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 Kingi v R

Details

AGLC: Kingi v R [2013] NZCA 393
Case: [2013] NZCA 393
Decision Date: 26 August 2013 at 10.00 am

CaseChat Overview and Summary

In the New Zealand Court of Appeal, Tuata Jamie Kingi appealed against his sentence, which was handed down by Judge Tompkins in the District Court at Hamilton. Kingi had been convicted of aggravated burglary, aggravated robbery, and possession of cannabis for sale. The appeal focused on the severity of the eight-year imprisonment sentence imposed on Kingi. Counsel for the appellant, C D Bean, argued that the sentence was manifestly excessive due to errors made by the sentencing judge. Specifically, Bean contended that the judge erred in setting the starting point for the sentence at eight years and in not allowing credit for remorse or a discount for Kingi’s youth.

The Court of Appeal reviewed the arguments and considered the appropriate starting point for the sentence. They found that the starting point of eight years was suitable given the seriousness of the offences, which included forced entry at night, violence against victims, and the brandishing of weapons. The court also considered mitigating factors, such as Kingi’s age at the time of the offence and his expressions of remorse as noted in his pre-sentence report. The court held that a reduction of about 12.5% for these factors was appropriate, although an uplift was justified due to Kingi being on bail for unrelated offences at the time. As a result, the Court of Appeal substituted the original sentence with one of seven years and two months' imprisonment.

The Court of Appeal thus allowed the appeal against sentence, quashing the original sentence and substituting it with a reduced term of imprisonment. This decision underscores the importance of considering both aggravating and mitigating factors in sentencing, and highlights the Court's role in ensuring that sentences are proportionate and reflect the totality of the circumstances of each case.

Orders