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R v Kaienua

R v Kaienua

Case [2019] NZHC 2586 11 October 2019

Assault with Intent to Rob

Manifest Injustice

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-004-5617

[2019] NZHC 2586

THE QUEEN

v

NGATAMA JAMES KAIENUA

Hearing: 11 October 2019

Appearances:

B Dickey for the Crown

S Tait and J Hudson for the Defendant

Judgment:

11 October 2019

SENTENCE OF GAULT J

Solicitors:
Mr B Dickey, Meredith Connell, Office of the Crown Solicitor, Auckland Mr S Tait and Mr J Hudson, Barristers, Auckland

R v KAIENUA [2019] NZHC 2586 [11 October 2019]

[1] Mr Kaienua appears for sentence following guilty verdicts on two charges on 29 July 2019 after a judge alone trial.1

[2] I found Mr Kaienua guilty of being a party to one charge of assault with intent to rob,2 and party to one charge of aggravated wounding.3

[3] Both of these offences carry maximum penalties of 14 years’ imprisonment. These offences are both qualifying offences under the “three-strikes” regime. This offending is Mr Kaienua’s third strike. Therefore, I am compelled by legislation to impose the maximum sentence on both charges,4 whatever the merits. I have no choice about that.

[4] I must also order that Mr Kaienua serve that sentence without parole, unless that would be manifestly unjust.5

[5] I have concluded it would be manifestly unjust for Mr Kaienua to be in prison for 14 years without the possibility of parole. I will set out my reasons.6

The offending

[6] The following facts were uncontested at trial. On the day of the offending, 19 June 2018, Mr Kaienua was spending the day with his then 16-year-old friend, who I will call “Y”, because his name is suppressed. Mr Kaienua was 27 at the time. Y is the younger half-brother of Mr Kaienua’s then partner.

[7] Around 7 pm Mr Kaienua and Y were at the Grey Lynn shops. They had changed into darker clothing than they had been wearing earlier. They walked along Great North Road and paused for just under two minutes opposite a dairy. They then crossed the road towards it, but walked past it, heading back along the road. They returned two minutes later. Y went into the dairy. Mr Kaienua waited outside.

1      R v Kaienua [2019] NZHC 1794.
2      Crimes Act 1961, s 236(1)(a). Maximum penalty 14 years’ imprisonment.
3      Section 191(1)(c). Maximum penalty 14 years’ imprisonment.
4      Sentencing Act 2002, s 86D(2).
5      Section 86D(3).
6      Section 86D(5).

[8] Mr Patel, a member of the family who owned the dairy, was manning the counter. Y waited in the dairy for approximately two minutes while two other customers came and went, and as soon as the second customer completed his purchase and left the dairy, Y moved behind the counter, pulled out a knife and attacked Mr Patel.

[9] Y quickly escalated to thrusting the knife into Mr Patel, while also trying to open the cash register. Mrs Patel, Mr Patel’s mother, was in a kitchen near the back of the store. A family friend was also there.…

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 Kaienua

Details

AGLC: R v Kaienua [2019] NZHC 2586
Case: [2019] NZHC 2586
Decision Date: 11 October 2019

CaseChat Overview and Summary

The case of R v Kaienua was heard by Gault J in the High Court of New Zealand, Auckland Registry. Ngatama James Kaienua was sentenced following a guilty verdict on two charges of being a party to assault with intent to rob and aggravated wounding. Both charges carry a maximum penalty of 14 years’ imprisonment and are qualifying offences under the “three-strikes” regime, making this Kaienua’s third strike. The court was required to decide whether it would be manifestly unjust to order Kaienua to serve his sentence without parole. The court concluded that it would be manifestly unjust to order Kaienua to serve a 14-year sentence without parole. The court found that Kaienua’s traumatic history in prison, his mental health issues, and the significant disparity between the non-parole period he would receive without the three-strikes regime (two years) and a sentence of 14 years made it manifestly unjust to impose the sentence without parole. The court sentenced Kaienua to 14 years’ imprisonment on each charge, to be served concurrently, but determined that it would be manifestly unjust to make an order that he serve this sentence without parole.

The court's decision was based on the purposes and principles of sentencing, including holding Kaienua accountable for the harm done to the complainants, promoting a sense of responsibility, denouncing his conduct, protecting the community, and deterring others from committing similar offences. The court also considered Kaienua's personal background, the effect of earlier warnings, and his likelihood of reoffending. The court found that Kaienua's culpability was less than the primary offender, Y, but not significantly less. The court considered the circumstances of the present offending, the sentence that would be imposed but for the three-strikes regime, and the impact on the victims. The court concluded that imposing a sentence without parole would be manifestly unjust in this case.

Orders