[1] The appellant, Kayne Livett, appeals his sentence of two years imprisonment imposed on a charge of assault with intent to injure.1 He alleges the sentence was manifestly excessive.

[2] At the time of the imposition of this sentence, he was also sentenced on three other charges of violent offending, including two other charges of assault with intent to injure. This resulted in an overall effective sentence of three years and seven months imprisonment.

[3] The grounds of Mr Livett’s appeal relate only to the charge of assault with intent to injure committed on 27 November 2015 at Alexandra (the Alexandra assault). The Crown contends the focus of the appeal must be on whether the end sentence imposed for all the offending was appropriate and not whether any
individual component part is without error. Mr Livett contests that proposition.

1 Police v Livett [2016] NZDC 11290.

LIVETT v R [2016] NZHC 2306 [28 September 2016]

Background

Male assaults female – 21 April 2015

[4] Mr Livett was sentenced to six months imprisonment on a charge of male assaults female. On 21 April 2015, a verbal argument between Mr Livett and his partner culminated in him punching the victim in the eye with a closed fist. The victim received a two centimetre cut that required five stitches. She also had significant bruising around her eye.

The Alexandra assault – 27 November 2015

[5] It is the sentence of two years in respect of this offending which is the subject of challenge on this appeal. On the morning of 27 November 2015, the victim’s son and a friend ran into the living room of their home to alert the father to the presence of Mr Livett at the end of their driveway. They claimed to have been followed by Mr Livett. The summary of facts reads:

The victim has walked out side the address to see what the issue was.

The Defendant has seen the Victim on the balcony at the address and has entered the property without permission by walking up the driveway.

The Defendant has called out to the Victim asking if the two boys were his children.

The Victim has replied that only one was.

The Victim has walked down the concrete steps adjacent to the balcony to speak to the Defendant whom was standing at the bottom.

Without warning the Defendant struck the Victim to the face with a punch thrown from his left arm.

[6] The punch resulted in the victim’s glasses being knocked from his face and caused him to fall back on the steps. Mr Livett has then continued to throw several punches about the victim’s head and face whilst on the ground. The victim did not offer any resistance and stayed 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 Livett v The Queen

Details

AGLC: Livett v The Queen [2016] NZHC 2306
Case: [2016] NZHC 2306
Decision Date: 28 September 2016

CaseChat Overview and Summary

The appeal by Kayne Livett against his sentence of two years imprisonment imposed for a charge of assault with intent to injure was dismissed. Livett argued that the sentence was manifestly excessive, but the court found that the overall sentence, when considering all charges, was appropriate. The appeal court examined whether the sentence for the individual offence was excessive and if the overall sentence was disproportionate to the gravity of the overall offending. The court found that the sentence for the Alexandra assault, while high, was justified given the circumstances and the need to consider the overall sentence. The court also addressed concerns about the remission of outstanding fines and found that there was no basis to interfere with the judge’s order.

Orders