Kingi v The Queen - [2010] NZCA 159

IN THE COURT OF APPEAL OF NEW ZEALAND
CA69/2010
[2010] NZCA 159
BETWEENDYLAN KINGI

Appellant

ANDTHE QUEEN

Respondent

Hearing:29 April 2010

Court:Baragwanath, MacKenzie and Lang JJ
Counsel:R M Gould for Appellant

S B Edwards for Respondent

Judgment:29 April 2010
Reasons:6 May 2010 at 3pm

JUDGMENT OF THE COURT

A The appeal is allowed
B The minimum term of imprisonment is quashed
CThe sentence of three years nine months imprisonment on the charge of aggravated robbery is confirmed

REASONS OF THE COURT
(Given by Lang J)
[1]        Mr Dylan Kingi pleaded guilty in the District Court to charges of aggravated robbery and burglary. On 7 December 2009 His Honour Judge Saunders sentenced him to three years nine months imprisonment on the charge of aggravated robbery. The Judge also made an order under s 86 of the Sentencing Act 2002 requiring Mr Kingi to serve one-half of that sentence before being eligible to apply for parole. Mr Kingi was convicted and discharged on the burglary charge.
[2]        Mr Kingi appealed to this Court against the sentence that the Judge imposed. The sole ground of the appeal was that the Judge should not have made an order requiring Mr Kingi to serve a minimum term of imprisonment.
[3]        At the conclusion of the hearing on 29 April 2010 we allowed Mr Kingi’s appeal and quashed the minimum term of imprisonment that the Judge imposed. In all other respects we confirmed the sentences. We now give our reasons for doing so.
The procedural history
[4]        In order to understand the issue that the appeal raises it is necessary to set out the somewhat unusual procedural history that led to the sentences that Mr Kingi ultimately received.
[5]        Mr Kingi was jointly charged with his brother, Mr Harris Kingi. The charges arose out of an incident on 25 October 2008, when the two cousins and an unknown third person broke into a sleep-out occupied by a person whom they believed to have “narked” to the police about an earlier incident. After breaking into the sleep-out, Mr Kingi and his associates threatened the occupier and stole various items of property from him.
[6]        Both cousins pleaded not guilty, and were committed for trial. The trial was allocated a fixture in the District Court at Nelson on 25 September 2009.
[7]        On 12 June 2009 the charges were called before His Honour Judge Zohrab, and counsel for both accused sought sentence indications. The Judge had earlier received full written submissions from both the Crown and the defence, a pre-sentence report in respect of both defendants and a victim impact statement from the complainant.
[8]        After hearing oral submissions from both counsel, the Judge delivered a comprehensive sentence indication in relation to each accused. This traversed all matters relevant to sentence. The Judge considered that the offending warranted an overall starting point of four years imprisonment for both men. He added 12 months to the sentence to be imposed upon Mr Dylan Kingi to reflect his significant list…

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 The Queen

Details

AGLC: Kingi v The Queen [2010] NZCA 159
Case: [2010] NZCA 159
Decision Date: 29 April 2010

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant Dylan Kingi challenged the sentence imposed on him by the District Court. Kingi had pleaded guilty to charges of aggravated robbery and burglary, resulting in a sentence of three years and nine months imprisonment on the charge of aggravated robbery, along with a mandatory minimum term of imprisonment. The appeal focused on whether the District Court judge should have imposed the minimum term of imprisonment. The Court of Appeal found that the judge should not have imposed such a term because it was not foreshadowed during earlier proceedings and the Crown had not sought it. The Court also found that the original sentence of three years and nine months imprisonment was appropriate, despite the judge's concerns about Kingi's drug addiction and his lengthy time on remand before sentencing. The appeal was allowed, and the minimum term of imprisonment was quashed, while the original sentence was confirmed.

The legal issues in this case centred on the criteria for imposing a minimum term of imprisonment under section 86(2) of the Sentencing Act 2002 and the principle of parity in sentencing co-offenders. The Court examined whether the judge was correct in imposing a minimum term of imprisonment without prior indication and if the original sentence was appropriate given the circumstances. The Court concluded that the judge should not have imposed the minimum term because it was not foreshadowed and was not sought by the Crown. The Court also confirmed the original sentence of three years and nine months imprisonment, finding that the principle of parity supported maintaining the sentence as indicated by a previous judge. The decision highlights the importance of adhering to established sentence indications and the need for clear communication about potential penalties during judicial proceedings.

Orders