The Queen v Kanakartnam - [2008] NZCA 258

IN THE COURT OF APPEAL OF NEW ZEALAND
CA24/2008
[2008] NZCA 258
THE QUEEN
v
MATHANAKUMAR KANAKARTNAM
Hearing:23 July 2008

Court:Robertson, Wild and Heath JJ
Counsel:C B Wilkinson-Smith for Appellant

S B Edwards for Crown

Judgment:25 July 2008 at 2.30 pm

JUDGMENT OF THE COURT

THE APPEAL AGAINST SENTENCE IS DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(GIVEN BY WILD J)
Introduction
[1]       Pursuant to an extension of time to appeal granted on 8 May, Mr Kanakartnam appeals against the sentence of seven years’ imprisonment imposed on him by Judge Gittos in the District Court at Auckland on 20 December 2006.
[2]       Mr Kanakartnam was convicted following a trial conducted largely in his absence after he absconded. An appeal against conviction was subsequently abandoned.
Factual background
[3]       In the early hours of the morning of 28 November 2004, the appellant and associates rang a Mr Ramadoss at his home. They knew him. A guest in the house, Mr Mada, answered the phone and declined to wake Mr Ramadoss.
[4]       The appellant and a man called Mr Kanagasingam took offence at this. Together with Mr Arumugan, the appellant’s co-accused at trial, they drove the six and a half kilometres from Western Springs to Mr Ramadoss’ home in Mt Roskill, arriving around 5.15 am.
[5]       The appellant and Mr Kanagasingam went to the front door. After Mr Ramadoss had let them in, they confronted Mr Mada in the lounge. They began beating him around the head and body with their fists and a piece of framing timber they had brought with them. This beating continued for about 30-40 minutes, during which time they dragged Mr Mada around the house. At one stage they dragged him from the bathroom where Mr Ramadoss was trying to administer first aid. While beating Mr Mada, the appellant repeatedly threatened to kill him.
[6]       Mr Ramadoss and another occupant of the house tried several times to stop the attack. Mr Mada was eventually dragged out on to the front porch where the beating continued. At this point the appellant’s co-accused, Mr Arumugan, got out of the car. Using a metal pole he had picked up from the porch of the house, he hit Mr Mada hard on the side of the head. The appellant and Mr Kanagasingam meanwhile continued to beat Mr Mada. The three attackers finally left around 6 am, damaging two cars parked outside the address as they departed.
[7]       Mr Mada suffered two deep lacerations to his head. One required five stitches, the other three. He also sustained multiple bruising to his scalp and the upper part of his body. He needed time off work to recover and, for a time, hid, fearing further attacks from the three offenders.
[8]       The attack was also a traumatic event for Mr Ramadoss, who recognised the attackers as customers of the shop he managed. Fearing for his safety, Mr Ramadoss quit his job and the house.
The sentencing
[9]       There is no challenge to the Judge’s description of…

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.

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Details

Case: [2008] NZCA 258
Decision Date: 25 July 2008

CaseChat Overview and Summary

The appeal against sentence in The Queen v Kanakartnam concerns the sentence of seven years’ imprisonment imposed on Mr Kanakartnam by Judge Gittos in the District Court at Auckland. The appellant had absconded during his trial, leading to a largely absent trial, and his appeal against conviction was subsequently abandoned. The case reached the Court of Appeal of New Zealand, where the appellant challenged the severity of his sentence. The legal issues centered on whether the Judge had correctly identified the aggravating factors and if the sentence imposed was appropriate given the circumstances of the case.

The court found that the Judge had correctly identified the six aggravating features of the crime, including premeditation, extreme and prolonged violence, attacking the head, use of weapons, home invasion, and the involvement of multiple attackers. The court further found that the Judge had correctly placed the offending in the middle of Taueki band 2, justifying a starting point of seven years' imprisonment. The court dismissed the argument that the injuries were superficial and emphasized that the appellant's threats to kill were a significant aggravating factor, which carried a maximum sentence of seven years' imprisonment. The court concluded that the sentence was within the Judge's discretion and dismissed the appeal against sentence.

The final orders of the court were that the appeal against sentence is dismissed. The sentence of seven years' imprisonment imposed by Judge Gittos in the District Court at Auckland on 20 December 2006 was upheld.

Orders