R v Komene - [2013] NZHC 1844

REDACTED VERSION - PUBLICATION PERMITTED IN THIS FORM. PURSUANT TO SECTION 205 OF THE CRIMINAL PROCEDURE ACT
2011, PUBLICATION IS PROHIBITED OF ANY MATERIAL CONTAINED IN THE VICTIM IMPACT STATEMENTS OR ANY REFERENCE THERETO IN COUNSEL'S SUBMISSIONS OR IN THIS JUDGMENT.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2012-090-002641 [2013] NZHC 1844

THE QUEEN

v

JACOB KOMENE

Hearing: 23 July 2013

Appearances:

K A Lummis for Crown
J J Corby for Prisoner

Judgment:

23 July 2013

SENTENCING NOTES OF ANDREWS J

Solicitors/Counsel:
Meredith Connell, Auckland
J J Corby, Barrister, Auckland

R v JACOB KOMENE [2013] NZHC 1844 [23 July 2013]

Charges

[1] Jacob Komene, you appear for sentencing today having pleaded guilty to one charge of aggravated burglary, and one charge of wounding with intent to cause grievous bodily harm. On each of those two charges, the maximum available sentence is imprisonment for 14 years.

[2] Mr Komene, as you will have heard me discuss with counsel at the start of this afternoon’s session, at this stage I will discharge you on count 2 in the indictment against you. That means that of the three charges you initially faced, you now face solely the two to which you have entered guilty pleas, and on which I am sentencing you today.

[3] The issue in your sentencing today Mr Komeme is whether you should be sentenced to finite terms of imprisonment on the two charges, or whether you should be sentenced to preventive detention.

Relevant Facts

[4] At half past nine on the evening of 18 April 2012, you entered a residential address in Glendene by forcing open the front window using a knife you were carrying. Once inside, you were confronted by the resident, Mr Chant, who was 95 years old, who asked you what you were doing in the house. Upon being challenged, you left the house through the front window that you had climbed in, but you did not leave the area. Instead, you stood staring at the house and at Mr Chant while waving the knife around threateningly.

[5] Understandably, Mr Chant was fearful and so made his way to the kitchen to get to his telephone. Upon reaching the dining room, he realised that you had come back into the house and was standing in the hallway. Fearing for his safety, Mr Chant turned and he placed his walking frame in between himself and you, before activating his St John emergency alert button which both contacted St John and made an audible alarm.

[6] You then rushed towards Mr Chant, pushing the walking frame aside, and you stabbed him with the knife in the left-hand side of his face. The entire 12 cm blade of your knife pierced Mr Chant’s face, sliding down the left side of his jaw, before stopping when you punched Mr Chant on the side of his face. This assault caused a two centimetre laceration (a cut) near Mr Chant’s left ear, severed a nerve and an artery, and…

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 Komene

Details

AGLC: R v Komene [2013] NZHC 1844
Case: [2013] NZHC 1844
Decision Date: 23 July 2013

CaseChat Overview and Summary

In R v Komene, the defendant, Jacob Komene, was sentenced for aggravated burglary and wounding with intent to cause grievous bodily harm. Komene had a history of violence and had been found fit to stand trial despite having significant cognitive impairments. The sentencing judge, Andrews J, had to decide whether to impose a finite term of imprisonment or preventive detention, considering factors such as Komene's pattern of serious offending, the seriousness of harm to the community, and his likelihood of re-offending. The judge concluded that while the three preconditions for preventive detention were satisfied, imposing a finite sentence was more appropriate given Komene's age, background, and the potential for long-term rehabilitation programs during a lengthy sentence. The court sentenced Komene to nine years and eight months in prison for the charge of wounding with intent to cause grievous bodily harm, with a minimum period of imprisonment of six years, and five years for the charge of aggravated burglary, to be served concurrently. The judge also expected an application for an extended supervision order upon Komene's release.

Orders