The Queen v Kara - [2007] NZCA 189

IN THE COURT OF APPEAL OF NEW ZEALAND
CA416/06
[2007] NZCA 189
THE QUEEN
v
RAYMOND FRASER KARA
Hearing:17 April 2007

Court:William Young P, Potter and Fogarty JJ
Counsel:K B F Hastie and M J Inwood for Crown

T W Fournier for Respondent

Judgment:11 May 2007 at 2pm

JUDGMENT OF THE COURT

A The Solicitor-General is granted leave to appeal.
BThe appeal is allowed. The sentence of 3½ years imprisonment is quashed and a sentence of five years imprisonment is substituted.

____________________________________________________________________
REASONS OF THE COURT
(Given by Potter J)
Introduction
[1] The Solicitor-General seeks leave to appeal under s 383(2) Crimes Act 1961 against the sentence of 3½ years imprisonment imposed on the respondent, Raymond Fraser Kara, in the High Court at Christchurch on 18 October 2006 on one count of causing grievous bodily harm with intent to cause grievous bodily harm.
[2] The Solicitor-General says the Crown submitted the Judge erred in two ways:
a)Failing to apply correctly the judgment of this Court in R v Taueki [2005] 3 NZLR 372 to assess the appropriate starting point for the “principal offender” and thus incorrectly assessing the appropriate starting point for the respondent as six years; and
b)Providing an excessive discount for mitigating factors in light of the starting point adopted.

[3]       The Crown submitted the minimum sentence that could have been imposed was one of five years imprisonment, reached from a starting point of seven years and allowing a generous discount of two years (or just under 30%).
[4]       For the respondent it was submitted that the Judge adopted a principled approach to sentencing, conscientiously considered the relevant factors and justified his findings. The sentence imposed was available in the circumstances.
Factual background
[5]       As the result of a brain injury inflicted on Mr Trevor Clague on 15 October 2005, he died in hospital the following day.
[6]       On the evening of 14 October 2005, the respondent was out cruising the streets of Christchurch with a group of friends. At approximately 11:00 pm, at a Mobil service station on the corner of Columbo and Huxley Streets, the respondent became involved in an altercation with an acquaintance and grabbed a small wooden baseball bat from the boot of the car in which he was travelling. He advanced on the rival group swinging the bat. He threatened to hurt his acquaintance by hitting him with the bat. Others of his group intervened allowing the acquaintance to leave the premises. The respondent and his friends resumed cruising Columbo Street. The respondent kept the baseball bat with him in the car. He said in a video interview with the police that he did so in case he saw the initial group again.
[7]       At approximately 2:00 am on 15 October 2005, the group came across the deceased in the same Mobil service station forecourt. The deceased was clearly intoxicated. The group abused him from the car and then continued up Columbo Street and did a U-turn back towards the deceased. They saw…

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 The Queen v Kara

Details

AGLC: The Queen v Kara [2007] NZCA 189
Case: [2007] NZCA 189
Decision Date: 11 May 2007

CaseChat Overview and Summary

The appeal in The Queen v Kara arose from the sentence of 3½ years imprisonment imposed on Raymond Fraser Kara by the High Court at Christchurch on 18 October 2006. Kara had been found guilty of causing grievous bodily harm with intent to cause grievous bodily harm under section 188(1) of the Crimes Act 1961, after being part of an attack on Mr Trevor Clague that resulted in his death. The Solicitor-General sought leave to appeal against the sentence imposed, contending that the sentencing judge erred in two respects: first, by not applying the judgment of the Court of Appeal in R v Taueki [2005] 3 NZLR 372 correctly to assess the appropriate starting point for the “principal offender” and thus incorrectly assessing the appropriate starting point for Kara as six years; and second, by providing an excessive discount for mitigating factors in light of the starting point adopted.

The legal issues before the Court of Appeal were whether the sentencing judge erred in his assessment of the appropriate starting point for Kara and in the discount provided for mitigating factors. The Crown argued that the starting point should have been seven years, resulting in a minimum sentence of five years imprisonment. Kara's counsel maintained that the Judge adopted a principled approach to sentencing, conscientiously considered the relevant factors, and justified his findings, and that the sentence imposed was available in the circumstances.

The Court of Appeal held that the sentencing judge did not correctly account for the aggravating features of the offending in terms of the guideline judgment in Taueki, resulting in a starting point of six years that was too low and led to a sentence that was wrong in principle and manifestly inadequate. The Court found that the appropriate starting point for Kara was seven years, with a reduction for mitigating circumstances of two years, resulting in a sentence of five years imprisonment. The Court quashed the original sentence of 3½ years imprisonment and substituted a sentence of five years imprisonment.

In summary, the Court of Appeal allowed the appeal, quashed the original sentence, and substituted a sentence of five years imprisonment for Kara. The Court found that the sentencing judge had erred in his assessment of the appropriate starting point and in the discount provided for mitigating factors, resulting in a manifestly inadequate sentence. The Court considered the appropriate starting point to be seven years, with a reduction for mitigating circumstances of two years, resulting in a sentence of five years imprisonment.

Orders