R v Kimiora - [2015] NZHC 1940

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-004-011125 [2015] NZHC 1940

THE QUEEN

v

VINDRICK EVANS KIMIORA

Hearing: 14 August 2015

Appearances:

N R Webby for Crown
KAN Trotter for Prisoner

Judgment:

14 August 2015

SENTENCING NOTES OF HINTON J

R v KIMIORA [2015] NZHC 1940 [14 August 2015]

Introduction

[1] Mr Kimiora you appear for sentence after being found guilty at trial of injuring with intent to injure pursuant to s 189(2) of the Crimes Act 1961. This offence has a maximum penalty of five years’ imprisonment.

[2] The jury found you not guilty of aggravated burglary and unlawful sexual connection by rape.

Facts

[3] You and the victim were in a domestic relationship for a number of years. At the time of the offending, it appeared that you had broken up but remained in contact. After an exchange of insults by text messaging on 28 October 2014, the victim “blacklisted” you so that you were no longer able to contact her from your cell phone.

[4] At around 2 o'clock on 29 October 2014, you went to the victim’s home address. You unlawfully entered the house and proceeded upstairs to the victim’s bedroom where she was sleeping. The victim awoke to find that you had both of your hands around her throat and were trying to strangling her. You continued to strangle her for a brief time, then stood up and placed your foot across her throat. You then kicked and punched the victim a number of times to the arms and legs. The victim suffered reasonably significant bruising as a result.

[5] I record at this stage that the Crown invited me to draw from the facts that you made a large number of phone calls to the victim’s phone, and that you broke into the house. I am not prepared to do so. I consider that to be speculative in light of the jury’s not guilty finding on the aggravated burglary charge.

Personal circumstances

[6] You are 29 years of age. You have convictions of a minor nature, mainly related to property and driving offences. This is your first conviction for violent- related offending. You had been in a relationship with the victim for approximately

five years. You have not made contact with her since the offending. You are currently employed as a plasterer, a position you have held for eight years. You have been advised that if you are sentenced to home detention, this may impact on or prevent you from being able to continue in this role.

[7] The pre-sentence report considered the factors that contribute to your offending as the use of violence and relationship difficulties. Alcohol use is not considered to be a contributing factor to your current or previous offending. The report writer was unable to explore the offending with you during the interview as you were advised by your lawyer not to discuss that.

[8] Having no previous history of violent offending, the pre-sentence report assessed you as…

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 Kimiora

Details

AGLC: R v Kimiora [2015] NZHC 1940
Case: [2015] NZHC 1940
Decision Date: 14 August 2015

CaseChat Overview and Summary

In the High Court of New Zealand, Kimiora Vindrick Evans was sentenced following his conviction for injuring with intent to injure pursuant to s 189(2) of the Crimes Act 1961. The court had to determine the appropriate sentence considering the purposes of sentencing, the principles of sentencing, and the guideline judgment provided by the Court of Appeal decision in Nuku. The primary legal issues were identifying the appropriate starting point for the sentence, considering personal aggravating and mitigating factors, and deciding whether home detention or imprisonment was the least restrictive outcome appropriate in the circumstances.

The court set the starting point based on the guideline judgment in Nuku, which provides bands for sentencing under ss 189(2), 188(2), and 191(2) of the Crimes Act 1961. The court found that the aggravating factors in Kimiora's case were the extent of violence, the vulnerability of the victim, and the unlawful entry. However, the court did not consider unlawful entry or premeditation to be particularly aggravating factors, treating the offending as impulsive and unplanned. The court placed the offending within the middle of Nuku band two and adopted a starting point of 20 months’ imprisonment. Both the Crown and defence agreed that there were no personal aggravating or mitigating factors, and Kimiora was not entitled to a guilty plea discount. The court then considered home detention as a possible alternative to imprisonment, taking into account the benefits of home detention in certain cases, including low rates of re-conviction and positive support for offenders’ reintegration and rehabilitation. The court concluded that home detention was the appropriate sentence in this case and sentenced Kimiora to ten months’ home detention, halving the end point of the 20 months’ imprisonment.

The final orders of the court were that Kimiora was to serve ten months’ home detention on all standard terms, including the recommended special conditions as set out in the pre-sentence report.

Orders