Kissling v The King - [2023] NZCA 37

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA28/2020
[2023] NZCA 37

BETWEEN	JAMIE RONAKI KISSLING Appellant
AND	THE KING Respondent

Hearing:	14 February 2023
Court:	Cooper P, Ellis and Churchman JJ
Counsel:	H G de Groot and M J McKillop for Appellant J E L Carruthers for Respondent
Judgment:	1 March 2023 at 11.00 am

JUDGMENT OF THE COURT

AThe application to adduce further evidence on appeal is granted.
BThe appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellis J)

In 2018, Mr Kissling pleaded guilty to a charge of causing grievous bodily harm with intent to cause grievous bodily harm, together with a number of driving charges. A subsequent and protracted effort to withdraw his guilty plea did not succeed,[1] and in March 2020 he was sentenced to four years and 11 months’ imprisonment on the grievous bodily harm charge, and a cumulative term of six months’ imprisonment on the other charges.[2]
[1]R v Kissling [2019] NZDC 23647.
[2]R v Kissling [2020] NZDC 3665 [Sentencing notes].
At the time of Mr Kissling’s sentencing, the “three strikes” law remained in force. Because the grievous bodily harm conviction was his second strike, the law required Mr Kissling to serve that sentence without parole.[3]
[3]See s 86C of the Sentencing Act 2002, which was repealed on 16 August 2022 by s 5 of the Three Strikes Legislation Repeal Act 2022.
Mr Kissling now appeals his sentence. He says it is manifestly excessive because credit of up to 15 per cent should have been given on account of material he conveyed orally to the District Court about his upbringing and background, which has since been more formally fleshed out in two reports he seeks to adduce on appeal. If, as a result, this Court sets aside his sentence and imposes a lesser one, he then contends that—in light of the more recent repeal of three strikes—the sentencing court is no longer required to order that he serve the entirety of that new sentence.[4]

The relevant offending

[4]Mr Kissling’s position in this respect is predicated on this Court setting aside the four year and 11 month sentence as manifestly excessive and then “impos[ing] another sentence” in terms of s 251(2)(a) of the Criminal Procedure Act 2011. He quite correctly (in light of the clear words of sch 1AA cl 13 of the Sentencing Act) did not contend that he is entitled to the benefit of the change in the law by and of itself.

The facts of the grievous bodily harm charge (charge five) as disclosed by the evidence at Mr Kissling’s trial[5] were summarised by the sentencing Judge as follows:[6]
[3] There was an incident on 13 July [2016] and as you have said that was an argument between your family and a neighbouring family. You have portrayed it that there had been some bullying towards your children and effectively this was not an incident which as regards the complainant on…

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 Kissling v The King

Details

AGLC: Kissling v The King [2023] NZCA 37
Case: [2023] NZCA 37
Decision Date: 1 March 2023 at 11.00 am

CaseChat Overview and Summary

In Kissling v The King, the appellant, Mr Kissling, appealed his sentence, which was imposed after he pleaded guilty to causing grievous bodily harm with intent to cause grievous bodily harm and other driving charges. Mr Kissling argued that his sentence of four years and 11 months’ imprisonment for the grievous bodily harm charge was manifestly excessive, as credit should have been given for his upbringing and background. Additionally, he contended that the repeal of the three strikes law meant he should no longer be required to serve the entirety of any new sentence imposed by the Court of Appeal. The Court of Appeal granted the appellant leave to adduce further evidence in the form of a cultural report and a clinical psychologist’s report to support his appeal. The Court concluded that the sentence was not manifestly excessive as even with the proposed discounts, the end sentence would still be over five years’ imprisonment. Consequently, the appeal was dismissed.

The primary legal issue in this case was whether the sentence imposed on Mr Kissling was manifestly excessive. The Court of Appeal considered whether the sentence fell outside the available range and whether appropriate credit should have been given for Mr Kissling’s upbringing and background. Additionally, the Court examined whether the repeal of the three strikes law should affect the sentence imposed by the Court of Appeal. The Court of Appeal found that the sentence was not manifestly excessive, as even with the proposed discounts, the end sentence would still be over five years’ imprisonment. Therefore, the appeal was dismissed, and no resentencing by the Court of Appeal was required.

The Court of Appeal held that the sentence imposed on Mr Kissling was not manifestly excessive. The Court acknowledged that the sentence of four years and 11 months’ imprisonment for the grievous bodily harm charge fell within the range of five to ten years’ imprisonment as outlined in the Taueki case. The Court considered that the Judge was generous in setting the starting point and declining to uplift for previous convictions. The Court also found that the proposed discounts for cultural matters and time spent on EM bail would not result in a sentence that was manifestly excessive. Consequently, the Court of Appeal dismissed the appeal and did not impose a new sentence.

No further orders were made by the Court of Appeal. The appellant’s application to adduce further evidence was granted, and the appeal was dismissed.

Orders