Kiwara v R - [2012] NZCA 468

IN THE COURT OF APPEAL OF NEW ZEALAND

CA802/2011
[2012] NZCA 468

BETWEEN THOMAS KIWARA
Appellant

AND THE QUEEN
Respondent

Hearing: 9 October 2012

Court: Stevens, Chisholm and Venning JJ

Counsel: M W Ryan for Appellant
D J Boldt for Respondent

Judgment: 12 October 2012 at 12.30 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Venning J)

The appellant pleaded guilty to one count of aggravated robbery. On 23 September 2011 Judge Johns in the District Court at Manukau sentenced him to six years’ imprisonment.[1]
[1] R v Kiwara DC Manukau CRI-2010-092-12801, 23 September 2011.
The appellant now appeals against the sentence on the following grounds. He argues it was manifestly excessive because:
(a)of his “significantly reduced culpability” (as compared to his co‑offenders); and
(b)he did not receive any credit for his guilty plea.

Background facts

The summary of facts records that, on 3 May 2010, two males with disguised faces entered a BNZ bank at Flat Bush, Manukau. One of them carried a screwdriver. The first robber leapt up onto the counter, and climbed the security screen to the area where the tellers were working. The second robber stood at the counter observing what was going on. The first robber gathered cash in excess of $10,000 cash from the teller drawers. He then climbed up onto the counter, back over the security screen and leapt onto the floor. In that process, some of the cash was dropped. The robbers then picked up the cash and ran from the premises. They left the screwdriver behind.
A witness observed the two robbers climb into a Honda motor car. The Honda had been stolen the previous day. The driver of the car was a third male, identified as the appellant. A short time later the appellant and the other two robbers were observed getting out of the stolen Honda and into a Nissan Skyline, registered number UM7024. The Skyline had been left at the Dawson Road shopping mall approximately one kilometre from the scene of the BNZ bank robbery.
The police were called. Subsequent inquiries with the registered owner of the Skyline revealed that at the time, two of the owner’s cousins, Bobby Joe Kara and Kiki Kara, had the Skyline. Further inquiries led to the missing Skyline being located at Bobby Joe Kara’s home.
When spoken to the following day the appellant denied any involvement in the robbery claiming he had been at his sister’s house all day fixing her car. However, the appellant’s sister confirmed that he was not at her house at all during that day.
Further police inquiries revealed that, on the evening of the robbery, the appellant had disclosed to another person that he was the driver, that Bobby Joe and Kiki Kara had committed the robbery and that Kiki Kara had dropped his screwdriver. The appellant also said that once they divided the cash they each had about $3,700.
The appellant also disclosed his involvement in…

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 Kiwara v R

Details

AGLC: Kiwara v R [2012] NZCA 468
Case: [2012] NZCA 468
Decision Date: 12 October 2012

CaseChat Overview and Summary

The case of Kiwara v R involved Thomas Kiwara, who appealed against his six-year imprisonment sentence for aggravated robbery. The sentencing took place in the District Court at Manukau. The appellant argued that the sentence was excessively harsh due to his significantly reduced culpability compared to his co-offenders and because he did not receive any credit for his guilty plea. The Crown opposed the appeal, asserting that the sentence was appropriate given the appellant's role and the strength of the evidence against him.

The court examined the arguments and concluded that the starting point of six years for the aggravated robbery was appropriate. The appellant's role, as the driver of the getaway cars, was significant, and he received a third of the robbery's proceeds. The court further held that the appellant was not entitled to any credit for his guilty plea as it came after the first trial was aborted due to his actions, and the prosecution's case was strong. The appellant's actions necessitated a second trial, and there was no justification for a reduction in sentence.

The appeal was dismissed as without merit. The court upheld the original sentence of six years' imprisonment for the aggravated robbery.

Orders