JUDGMENT OF THE COURT

A The appeal against sentence is allowed.
BThe sentence of ten years’ imprisonment with a minimum period of imprisonment of five years is quashed.
CA sentence of eight years’ imprisonment with a minimum period of imprisonment of four years is substituted.

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REASONS OF THE COURT
(Given by Randerson J)
[1]       On 3 May 2007, the appellant was convicted of manslaughter after trial by jury in the High Court for murder. The trial judge was Priestley J who sentenced the appellant on 6 July 2007 to ten years’ imprisonment with a minimum period of five years’ imprisonment.
[2]       This appeal against sentence is advanced on the basis that the starting point adopted by the sentencing Judge was too high.
Background
[3]       At the time of sentencing, the appellant was 29 years of age. The victim was his partner in a relationship of at least ten years standing which had resulted in the birth of six children. The youngest children were twins aged about six months at the time of the offending. On 14 November 2005, the appellant appeared in the District Court on charges of assault and breach of a protection order in relation to the victim. He was bailed on strict conditions including that he was not to drink alcohol and not to make contact directly or indirectly with the victim.
[4]       Just three days later, on 17 November 2005, the victim, her brother and the appellant began drinking early in the day. The Judge found there was a high level of alcohol consumption and that, during the evening at a tavern in Tokoroa, the appellant was in a “bad and possessive mood”. He found that the victim was also behaving aggressively on that evening including hitting the appellant on one occasion and kicking his motor vehicle. At one stage of the evening, the appellant was seen to have his hands around the victim’s neck and told her at one point “yours is coming”.
[5]       In circumstances that are not entirely clear, the victim returned to her home in the early hours of 18 November and was followed by the appellant. Neighbours heard voices and banging noises. Some 30 hours later, on 19 November, the victim was discovered, lying in her bed in a deeply unconscious state. In the meantime, the appellant had returned to Auckland on the morning of the day the injuries were inflicted. He did not seek assistance for the victim but left after telling an acquaintance that the victim and her children were well.
[6]       When the victim was discovered, she was found to have bruising on her face, lips, jaw, neck and head. Her deeply unconscious state was the result of two subdural haemorrhages inflicted by an impact…

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 Kengike

Details

AGLC: R v Kengike [2008] NZCA 32
Case: [2008] NZCA 32
Decision Date: 27 February 2008

CaseChat Overview and Summary

The appeal against sentence in the case of R v Kengike was heard by the Court of Appeal of New Zealand. The appellant, Joseph Kengike, was convicted of manslaughter by a jury in the High Court after a trial presided over by Priestley J. The appellant was sentenced to ten years' imprisonment with a minimum period of imprisonment of five years. The appeal was based on the contention that the starting point adopted by the sentencing judge was excessively high. The case involved a sustained violent assault on the victim, Kengike's partner, resulting in her death. The victim had been subjected to severe injuries including subdural haemorrhages and other trauma.

The legal issues that the Court of Appeal was required to decide involved whether the starting point for the appellant's sentence was appropriately set and whether the overall sentence was consistent with precedents established in similar cases. The appellant's counsel argued that the starting point of ten years was too high, and that a sentence of seven or eight years would have been more appropriate. The Crown, on the other hand, argued that the level of violence and the appellant's history of violent convictions warranted a higher starting point. The Court had to weigh the purposes of sentencing, including denunciation, deterrence, and consistency, against the specific circumstances of the offence.

The Court of Appeal found that while the issue of domestic violence was serious and warranted a firm judicial response, the starting point adopted by the sentencing judge was excessive. The Court noted that there was no substantial difference in the level of violence or the offender's history between the present case and the cases of Ruru and Hetherington. In those cases, the Court of Appeal had upheld starting points of eight and nine years, respectively. The Court concluded that a starting point of ten years, including an uplift for aggravating factors, was not justified and that the overall sentence was manifestly excessive. The Court substituted a sentence of eight years' imprisonment with a minimum period of imprisonment of four years, aligning with the sentencing levels upheld in comparable cases. The Court emphasized the importance of consistency in sentencing similar offences while still addressing the specific circumstances of each case.

The final orders of the Court of Appeal were that the original sentence of ten years' imprisonment with a minimum period of imprisonment of five years was quashed. In its place, the Court imposed a sentence of eight years' imprisonment with a minimum period of imprisonment of four years.

Orders