Kissling v The King
[2023] NZCA 37
•1 March 2023 at 11.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA28/2020 [2023] NZCA 37 |
| BETWEEN | JAMIE RONAKI KISSLING |
| AND | THE KING |
| Hearing: | 14 February 2023 |
Court: | Cooper P, Ellis and Churchman JJ |
Counsel: | H G de Groot and M J McKillop for Appellant |
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.
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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[3]See s 86C of the Sentencing Act 2002, which was repealed on 16 August 2022 by s 5 of the Three Strikes Legislation Repeal Act 2022.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 charge five involved people of your age, you are certainly far older and both now, at the age of 49, and then far older than the [complainants] who were in their early 20’s and late teens.
[4] Whatever had occurred, and what gives rise to the charge, is that there was a meeting outside an address which was effectively between your two homes and on the evidence which was given and which I accept gives rise to the charge, you were in possession of a slug gun pistol, you pointed it towards the complainant’s head, you fired it. The force of the blow caused the complainant’s head to snap back. The pellet entered the right eye of the complainant, it caused initially extensive swelling and bleeding. The complainant went home with the assistance of his family. Medical attention was sought and as a consequence of that pellet entering his right eye he has lost permanently the sight in his right eye.
Sentencing
Application for adjournment
[5]He pleaded guilty on the second day of the trial.
[6]Sentencing notes, above n 2.
As the sentencing Judge recorded, Mr Kissling sought to adjourn the sentencing so that he could:
(a)instruct counsel;[7]
(b)first pursue his appeal against conviction; and
(c)obtain a s 27 cultural report.
[7]Mr Kissling had been assigned three lawyers (one of them twice) in the course of the proceedings but had fallen out with each of them.
The adjournment application was declined by the Judge, who said:
[11] I am not going to adjourn further for two reasons. The first is this. That this matter has gone on too long and legal aid has been declined for both your representation and for additional reports. That although somebody was willing to provide such a report and they have confirmed that to the Court. That they had first contact with you on 10 January and by correspondence on 15 January, but that would require either private funding or legal aid and neither is available. The report in any event would not be available until at the earliest mid-April and that is going to delay matters even further and delay your appeal consequently. I have gleaned from you the information which I think you could properly put forward in any such report. Sentence will take place today.
The Judge did, however, invite both Mr Kissling and his mother to address the Court orally on s 27 matters, in the manner contemplated by the Supreme Court in Berkland v R.[8]As we understand it, Mr Kissling (but not his mother) took up that invitation.
Starting point and discounts
[8]At [10]. See Berkland v R [2022] NZSC 143 at [141].
In setting the starting point for the grievous bodily harm offending the Judge found Mr Kissling’s offending fell towards the middle of band two set out in this Court’s guideline judgment in R v Taueki (with a range of five to 10 years’ imprisonment) involving as it did:[9]
(a)premeditation, evidenced by Mr Kissling taking a weapon (the slug gun) to the confrontation in question;
(b)serious bodily harm (permanent disability at the upper end of the scale) to the victim “over and above merely the causing of grievous bodily harm”;
(c)use of a potentially lethal weapon; and
(d)violence directed at the head.
[9]Sentencing notes, above n 2, at [17]–[19], citing R v Taueki [2005] 3 NZLR 372 (CA).
Although in its written sentencing submissions the Crown had endorsed the seven and a half year starting point adopted in an earlier sentence indication, the Judge noted the Crown now advocated a moderated starting point of “at least six years and upwards”.[10]
[10]At [20]. Seven and a half years had been endorsed by both the Crown and defence counsel at the time of the sentence indication: see R v Kissling DC Palmerston North CRI-2016-031-866, 12 November 2018 [Sentence indication notes] at [3].
The starting point ultimately adopted by the Judge was one of six years’ imprisonment.[11]
[11]At [20].
In terms of uplifts and discounts, the Judge:[12]
(a)did not uplift for aggravating personal factors—and in particular Mr Kissling’s previous relevant convictions—in acknowledgement of the fact that he would be required to serve the whole sentence without parole; but
(b)discounted the starting point by 13 months for the 29 months he had spent on EM bail.
[12]At [23] and [26].
The Judge declined any discount for the s 27 matters canvassed orally, or for guilty plea. He said:
[27] I then consider the matters which you have raised under s 27 as regards your background and cultural factors. What is plain to me from the documents you have provided is that you are intelligent, you are educated, you probably are someone who has enormous potential to contribute positively. You have said as much yourself. You came from a good background and whilst there was introduction to a gang way of life from an early age through your uncle, that is something which you do not seek to blame and indeed you distinctly identify that the choices you have made have been very much your own and to the disappointment of your close whānau.
[28] It is plain that your intention to relocate to Levin was one which you hoped would give your children perhaps better choices to make and it is to be hoped that will be followed through on. What I have to acknowledge there, is that on its face on the material you have provided I am not able to provide any additional mitigation or credit to you under s 27. I commend you for your honesty in the matters you have placed before me.
[29] I consider whether any credit can be given on these matters for your guilty plea. You have fairly and persistently placed before me and other Judges an assertion that you are not responsible for the events which led to charge five or the harm caused. That you do not accept your guilt and you will seek to vacate or appeal successfully against that conviction. That is your right. You have maintained that to the report writer of the pre-sentence report and that is also your right. I contrast that, of course, with the driving matters and I will come to that.
[30] What that means is effectively there can be no credit given. Your plea was entered at a very late stage in any event and any slight credit that would have been earned has been lost. Therefore, in relation to charge five the start point will come back to an end point of four years, 11 months and I will come to that in a moment.
The presently relevant end sentence was one of four years and 11 months’ imprisonment.
The appeal
The new reports
As noted earlier, Mr Kissling sought leave to adduce a written s 27 report and the report of a clinical psychologist in support of his appeal. The Crown did not oppose the application and we grant leave accordingly.
The extent to which the formal reports supplement or add to the cultural matters canvassed orally by Mr Kissling at sentencing remains unclear.[13] But Mr Carruthers for the Crown accepted that the matters contained in the reports were of a kind that would, ordinarily, attract a discount at sentencing. So, we propose to take that as our starting point. And we are also prepared to assume, for the purposes of the discussion below, that the appropriate discount here would—as submitted on behalf of Mr Kissling—be in the order of 15 per cent.
A manifestly excessive sentence?
[13]We do not have a transcript of what was said.
It is trite that on appeals against sentence, the Court will not be concerned so much with the correctness of the component parts of the sentence at issue, but rather with whether the result—the end sentence—was outside the available range.[14]
[14]See for example Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
There is no dispute that the offending giving rise to the grievous bodily harm charge fell within band two of Taueki. As noted earlier that band encompasses a range of five to ten years’ imprisonment.
As Mr Carruthers submitted, Mr Kissling’s offending involved several of the aggravating factors identified in Taueki. He brought a loaded weapon to the scene of a confrontation, he fired it at the victim’s head, causing him serious, life changing and enduring injury.
We consider the six year starting point adopted by the sentencing Judge was generous. As the Judge noted, there were at least three of the Taueki aggravating factors present, with the gravity and permanence of the harm done to the victim being of particular note. No doubt that is what prompted Mr Kissling’s own counsel to agree, at the time of the sentence indication, that Mr Kissling’s culpability could be seen as falling within the middle of the second Taueki band.[15] And as Mr Carruthers pointed out, a starting point in that vicinity could be seen as consistent with a number of other grievous bodily harm cases involving the discharge of a firearm.[16]
[15]Sentence indication notes, above n 10, at [3].
[16]Mr Carruthers referred in particular to Stehlin v R [2022] NZCA 453; Fukofuka v R [2019] NZCA 290; and Allerby v Police [2012] NZHC 622.
The Judge was similarly generous in declining to uplift for previous convictions. Even putting to one side the convictions for which Mr Kissling received a strike warning, he has a long history of moderately violent offending for which an uplift was undoubtedly available.
Even without an uplift for criminal history, however, a seven and a half year starting point, discounted by 13 months for time spent on EM Bail[17] and 15 per cent for cultural matters, would yield an end sentence of over five years’ imprisonment. Adopting a starting point of seven years and applying the same discounts would yield an end sentence almost identical to the sentence Mr Kissling actually received. We therefore consider there is no basis for concluding that the sentence of four years and 11 months was manifestly excessive.
[17]No issue was taken with this discount on appeal. And in light of the tortuous history of this matter counsel also responsibly took no issue with the Judge’s refusal to afford a discount for guilty plea.
Once that point is reached, no question of any “resentencing” by this Court conceivably arises. The foundation for the legal submissions made about the effect of the more recent repeal of the three strikes law in such a case falls away and we do not consider it further.
Result
The application to adduce further evidence dated 4 November 2022 is granted.
The appeal is dismissed.
Solicitors:
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent
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