R v Kahu - [2010] NZCA 120

IN THE COURT OF APPEAL OF NEW ZEALAND
CA702/2009
[2010] NZCA 120
BETWEENTHE QUEEN

Appellant

ANDWATTIE ADOLF KAHU

Respondent

Hearing:18 March 2010

Court:O'Regan, Ellen France and Rodney Hansen JJ
Counsel:K A L Bicknell and J E Mildenhall for Appellant

J G Rowan QC for Respondent

Judgment:31 March 2010 at 4 pm

JUDGMENT OF THE COURT

A            Leave to appeal is granted.
B            The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Rodney Hansen J)
Introduction
[1]        Mr Kahu has spent 24 of the last 26 years of his life in prison. Twenty-four hours after he was last released in March 2007 he assaulted his partner and, when the police were called, he presented a firearm at them and fled. On his appearance for sentence on charges of assault, escaping from custody and using a firearm to resist arrest, he was sentenced by Mallon J to six years imprisonment with a minimum period of imprisonment of four years. The Judge declined the Crown’s application to sentence Mr Kahu to preventive detention.
[2]        The Solicitor-General seeks leave to appeal against the sentence on the grounds that it is manifestly inadequate and wrong in principle. It is submitted that in deciding against a sentence of preventive detention the Judge took into account irrelevant considerations and erred in the weight to be given to mandatory factors. Ms Bicknell argued that a finite sentence does not provide adequate protection for the community.
Further background
[3]        Mr Kahu is now aged 43. He spent his early years in a seriously dysfunctional family environment. He was the victim of violence and sexual abuse. He was removed into the care of Social Welfare at the age of 11 and spent time in various state institutions. He left school at the age of 14 years without qualifications. He first appeared before the courts at the same age. By his sixteenth birthday he had accumulated 22 convictions. That has now risen to 58.
[4]        He was first sentenced to imprisonment in 1982 at the age of 15. Within a short time of his release, he had reoffended and was back in prison again. A pattern had begun that has been repeated frequently since. It has been associated with an escalation in the seriousness of his offending. Sentences of four years, two years, six years and four years six months in 1984, 1986, 1988 and 1994 respectively were for clusters of offending involving violence and dishonesty.
[5]        Soon after his release in 1996, Mr Kahu committed another series of violent offences. They involved the use of weapons – an axe, a gun and knives. In the most serious incident, two occupants of a house Mr Kahu burgled suffered serious stab wounds when he attacked them with two carving knives he had taken to the premises. He pleaded guilty to multiple counts of kidnapping, assault with a stabbing or cutting instrument and to charges of wounding with intent to cause grievous bodily harm and threatening to kill or do grievous…

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 R v Kahu

Details

AGLC: R v Kahu [2010] NZCA 120
Case: [2010] NZCA 120
Decision Date: 31 March 2010

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal from the Solicitor-General against the sentence imposed on Wattie Adolf Kahu. Mr Kahu, who has a history of violent offending, was sentenced to six years imprisonment with a minimum of four years for charges of assault, escaping from custody, and using a firearm to resist arrest. The Crown argued that the sentence was manifestly inadequate and wrong in principle, and that the sentencing judge erred in her consideration of certain factors. The appeal centred on whether the sentencing judge correctly exercised her discretion in deciding against a sentence of preventive detention.

The Court found that the sentencing judge had not erred in her exercise of discretion. The judge was entitled to give weight to the less serious nature of the current offending, provided that it did not affect a proper weighing of the pattern of serious offending disclosed by Mr Kahu's history. The recent offending offered support for the view that previous interventions had achieved positive, if limited, outcomes. The sentencing judge recognised that Mr Kahu's recent offending did not involve some of the most alarming features of his previous offending, but also considered the similarities between the past and present offending. The judge's decision to impose a finite sentence was justified, and the appeal was dismissed.

Leave to appeal was granted, but the appeal was dismissed.

Orders