R v Karaitiana - [2020] NZHC 91

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2019-096-2216

[2020] NZHC 91

THE QUEEN

v

WAITOHARURU KARAITIANA

Hearing: 7 February 2020

Counsel:

G J Burston for Crown

C M Gisler and H R Hancock for Defendant

Sentence:

7 February 2020

SENTENCING NOTES OF THOMAS J

Introduction

[1] Mr Karaitiana, you pleaded guilty following a sentence indication on charges of aggravated burglary1 and wounding with reckless disregard.2

[2] I indicated an end sentence of three years and four months’ imprisonment, with consideration yet to be given to several matters including a s 27 cultural report3 and a pre-sentence report.4 You pleaded guilty on 2 December 2019 to this indication and were given your first strike warning.5

1      Crimes Act 1961, s 232(1)(a); maximum penalty 14 years’ imprisonment.
2      Section 188(2); maximum penalty 7 years’ imprisonment.
3      Sentencing Act 2002, s 27.
4      Section 26A.
5      Sections 86A(36) and 86B.

R v KARAITIANA [2020] NZHC 91 [7 February 2020]

[3] Although an indication has already been given, I need to repeat many of the comments I made to explain the sentence I am going to impose.

Offending

[4] Shortly after midnight on Saturday 15 June 2019, you and your co-offender travelled to the victim’s address in Stokes Valley, each armed with pistols. Your pistol at least was loaded. The doors to the property were locked. The victim was asleep in a bed next to the kitchen. You and your co-offender forced the kitchen door open, entered the property and confronted the victim. Your purpose was to obtain money from the victim that he was said to have owed.

[5] After sitting up in his bed, the victim was punched in the face by your co-offender. You then grabbed the victim by his t-shirt. Somehow your pistol discharged and shot the outside of the victim’s left knee. The Crown accepts the discharge was accidental.

[6] Your co-offender then rummaged through the victim’s drawers while you briefly detained the victim in the lounge area. The victim shoved you into the kitchen and escaped out the kitchen door, before telephoning the police from a neighbouring address.

[7] The victim sustained an injury to the side of his left leg and his wallet and phone were stolen. The wallet contained $460 cash and the phone was valued at approximately $200.

Your circumstances

[8] You were 20 years old at the time of the offending and are now 21. You have a partner and have recently became a father. You and your partner are expecting another child in August.

[9] You have four previous convictions arising from events in March 2019, which involved careless driving and resisting police. You were fined and ordered to come up for sentence if called upon.

Starting point

[10] The first step is to determine what is called the starting point. There are no sentencing guideline judgments for aggravated burglary, although I have regard to the Court of Appeal’s judgment in R…

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 Karaitiana

Details

AGLC: R v Karaitiana [2020] NZHC 91
Case: [2020] NZHC 91
Decision Date: 7 February 2020

CaseChat Overview and Summary

In the High Court of New Zealand, Wellington Registry, the case of The Queen v Waitoharuru Karaitiana involved the defendant pleading guilty to charges of aggravated burglary and wounding with reckless disregard. The Crown indicated a sentence of three years and four months imprisonment, with additional considerations pending a cultural report and a pre-sentence report. The defendant, aged 21 at the time of sentencing, had a limited criminal history but had been involved in gang activities. The offending occurred when the defendant and a co-offender, both armed with pistols, forced entry into a victim’s home at night. The defendant accidentally discharged his firearm, injuring the victim. The legal issues included determining an appropriate starting point for sentencing, considering aggravating and mitigating factors, and deciding on the most suitable sentence.

The court assessed the starting point for sentencing by examining the aggravating factors of the offence, including the home invasion, the presence of multiple offenders, the use of a weapon, and the premeditation involved. The court considered the defendant's culpability holistically, taking into account the accidental nature of the wounding. The Crown argued for a starting point of eight or nine years’ imprisonment, while the defence suggested four to four and a half years. The court ultimately determined a starting point of five and a half years’ imprisonment, noting that the defendant's offending was less serious than comparable cases but still involved significant harm. The court then considered personal mitigating factors, including the defendant's cultural background, youth, and efforts towards rehabilitation. A discount of 25 months was applied, along with an additional discount for compliance with bail conditions and a guilty plea.

The court concluded that a combination of home detention and community work would best meet the purposes and principles of sentencing. The defendant was sentenced to 11 months’ home detention, 200 hours of community work, and ordered to pay reparation to the victim. The fines related to previous driving offences were remitted. The court emphasised the importance of the defendant taking advantage of the support from his whānau and not repeating the mistakes of others who had breached their sentences.

Orders