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R v Kovaleski

R v Kovaleski

Case [2022] NZHC 2654 13 October 2022

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IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI 2021-054-20

CRI 2021-054-1836

[2022] NZHC 2654

THE KING

v

CALEB PETER KOVALESKI

Hearing: 13 October 2022

Counsel:

B D Vanderkolk and A M Barham for Crown P L Murray for Mr Kovaleski

Sentencing:

13 October 2022

JUDGMENT OF MALLON J

Introduction

[1] Mr Kovaleski, I am going to ask you to stand while I sentence you, please. You appear for sentencing on the following charges:

(a)using a firearm against a law enforcement officer;1

(b)discharging a firearm with reckless disregard x 2 (one under the Crimes Act and the other under the Arms Act);2

1 Section 198A(1) (maximum penalty 14 years’ imprisonment).
2 Crimes Act 1961, s 198(2) (maximum penalty seven years’ imprisonment); and Arms Act 1983, s 53(3) (maximum penalty three years’ imprisonment or a fine of $4,000 or both).

R v KOVALESKI [2022] NZHC 2654 [13 October 2022]

(c)unlawfully taking a vehicle;3 and

(d)two charges of aggravated assault.4

[2] Following your guilty pleas, at the Crown’s request, health assessor reports were sought so that the Court can consider a sentence of preventive detention.5 The Crown no longer seeks a sentence of preventive detention and having reviewed the reports, I agree with that assessment. A lengthy finite sentence with the opportunity to engage in treatment and management of the causes of your offending, which you are assessed as being able to engage in, will protect the community, and a finite sentence is therefore more appropriate than preventive detention. I am therefore not sentencing you to preventive detention.

Agreed summary of facts

[3] The offending relates to three events that took place between 31 December 2020 and 4 January 2021 when you were out of control on methamphetamine, just two weeks after your release from prison.

Recklessly discharging a firearm (first charge)

[4] It began in the early evening on 31 December 2020 when you were a passenger in a car being driven by your associate. He was driving at 30 km/h in a 100 km/h zone. Because of the slow speed of your vehicle, another car approached and then overtook your vehicle. The driver was with his partner and two young children.

[5] Your associate began tailgating that car and, when it was one to two metres from them, you leant out of the window of the vehicle and pointed a firearm at the car. You discharged that firearm twice. One bullet travelled through the car’s rear tail-light and lodged in the car’s frame a short distance from where one of the children’s head was positioned in the car seat. The other bullet made a hole in the handle of the driver

3      Section 226(1) (maximum penalty seven years’ imprisonment).
4      Crimes Act, s 192(1)(a) (maximum penalty three years’ imprisonment).
5      Sentencing Act 2002, s 88.

door. The victim accelerated to get away from you and the speed of the vehicles reached upwards of 200 km/h.

Aggravated assault x 2

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 Kovaleski

Details

AGLC: R v Kovaleski [2022] NZHC 2654
Case: [2022] NZHC 2654
Decision Date: 13 October 2022

CaseChat Overview and Summary

Caleb Peter Kovaleski appeared for sentencing on charges of using a firearm against a law enforcement officer, discharging a firearm with reckless disregard, unlawfully taking a motor vehicle, and aggravated assault. The sentencing hearing was held in the High Court of New Zealand at Palmerston North. The Crown was represented by B D Vanderkolk and A M Barham, while P L Murray appeared for Mr Kovaleski. The court heard that the offending occurred between 31 December 2020 and 4 January 2021 while the defendant was under the influence of methamphetamine. The court had to decide the appropriate starting points for each charge, taking into account the totality of the offending and the personal circumstances of the offender.

The court found the most serious offence to be the use of a firearm against a law enforcement officer. The court set a starting point of nine years’ imprisonment for this charge, taking into account the aggravating factors such as the vulnerability of the officer, the presence of premeditation, and the psychological harm suffered by the officer as a result of the incident. For the charges of unlawfully taking a motor vehicle and recklessly discharging a firearm, the court decided on an uplift of 18 months on the starting point of nine years, resulting in a total of 10 years and six months’ imprisonment for these charges. The court set a starting point of four years’ imprisonment for the charge of recklessly discharging a firearm at a car with children inside, and six months’ imprisonment for the two charges of aggravated assault. The overall starting point before personal factors was 14 years’ imprisonment.

Considering the personal circumstances of the offender, the court decided on a six-month uplift for previous relevant offences and offending while subject to release conditions, and a 30 per cent discount for personal circumstances and the offender's guilty pleas. This resulted in a final sentence of 10 years and four months’ imprisonment. The court set a minimum period of imprisonment of five years on the lead charge of using a firearm against a law enforcement officer, to reflect the risk to the community and to provide the offender with the opportunity to engage in treatment programmes. The court allocated the sentence amongst the various charges, imposing a total sentence of 10 years and four months’ imprisonment for the offender.

Orders