R v Kaukau - [2007] NZCA 66

IN THE COURT OF APPEAL OF NEW ZEALAND
CA390/06
[2007] NZCA 66
THE QUEEN
v
JOEY BARRY KAUKAU
Hearing:7 March 2007

Court:Ellen France, John Hansen and Williams JJ
Counsel:G Tomlinson for Appellant

K B F Hastie for Crown

Judgment:14 March 2007 at 3 pm

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe sentence of four years imprisonment is quashed.
CA sentence of three years and four months imprisonment is substituted, concurrent with the other sentences fixed by the District Court.

REASONS OF THE COURT
(Given by John Hansen J)
Introduction
[1]       The appellant pleaded guilty to one charge of aggravated burglary, one of aggravated injury, ten of burglary, three of unlawfully taking a motor vehicle, one of possession of cannabis, and a charge of driving whilst forbidden.
[2]       On the aggravated burglary he was sentenced to four years imprisonment; on the aggravated injury two years imprisonment; on each of the burglaries two years imprisonment; on each of the unlawfully taking a motor vehicle, one years imprisonment; on the possession of cannabis one months imprisonment; and for the driving whilst forbidden he was convicted and discharged. He was also ordered to make total reparation payments of $11,543.00 at $25.00 per week. At the date of sentencing the appellant had just turned 18 years of age.
Background
[3]       On 23 August the appellant entered two houses in Matamata. He took property to the value of $350.00 from the first, and $5,700.00 from the second. On the same day he was stopped by the police in his vehicle and it was found he was forbidden from driving. He was searched and found to be in possession of some cannabis.
[4]       Sentencing on these matters was delayed to enable the appellant to complete a residential drug and alcohol programme. On 13 May 2006, in breach of bail, he decamped from the residential treatment centre and thereafter committed eight burglaries and took three vehicles in the upper North Island between 17 May and 9 June.
[5]       On 9 June the appellant entered the victim’s house in Whakatane through a rear window. The victim heard the noise and saw the appellant’s arm. He turned on the light of the room and the appellant ran away, chased by the victim. The appellant was caught by the victim, who tried to hold him down. The victim noticed at this stage that the appellant was holding a knife and he managed to take the knife off him. The appellant briefly escaped, and when he was again caught by the victim, bit him on the hand. He was detained until the police arrived.
The sentencing
[6]       After referring to the relevant provisions of the Sentencing Act 2002 and appropriate appellate authority, the Judge noted the substantial impact on the various victims. He found there to be aggravating features in the actual and threatened violence and the use of a weapon. The burglaries were, in the main, of dwelling houses, and a number of the offences were committed while the…

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 Kaukau

Details

AGLC: R v Kaukau [2007] NZCA 66
Case: [2007] NZCA 66
Decision Date: 14 March 2007

CaseChat Overview and Summary

Joey Barry Kaukau was convicted of multiple serious offences including aggravated burglary, aggravated injury, burglary, unlawfully taking a motor vehicle, possession of cannabis, and driving while forbidden. Kaukau appealed against his sentence, contending that the starting point and discount for mitigating factors were too high. The Court of Appeal considered whether the starting point for the aggravated burglary and the discount for mitigating factors were appropriate. The Crown argued that the starting point was within the available range given the totality of the offending and that the discount was adequate. The Court found that the starting point of five years for the aggravated burglary was not excessive when considering the totality of the offending. However, the Court held that the discount for mitigating factors was insufficient, as it did not adequately account for Kaukau's guilty pleas, his limited prior criminal history, his progress in a residential drug treatment centre, and his responsibility towards his child. The Court allowed the appeal and substituted the sentence of four years imprisonment with a sentence of three years and four months imprisonment, to run concurrently with the other sentences fixed by the District Court.

Orders