The Queen v Karlytsky and Tapine

[2009] NZCA 230

IN THE COURT OF APPEAL OF NEW ZEALAND

CA71/2009
CA80/2009
[2009] NZCA 230

THE QUEEN

v

JAMIE JUNIOR KARLYTSKY
HARLEY EHEKERA TAPINE

Hearing:28 May 2009

Court:Hammond, Ronald Young and Clifford JJ

Counsel:A S Greig for Appellant Karlytsky

C D Eason for Appellant Tapine
T Epati and B Charmley for Crown

Judgment:3 June 2009 at 2.15 pm

JUDGMENT OF THE COURT

The appeals are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ronald Young J)

Introduction

[1]       During the early hours of 12 April 2008, the two appellants, and one other, attacked, beat and robbed a young man in Linwood Park, Christchurch.  Both appellants were convicted by a jury of wounding with intent to cause grievous bodily harm.  Mr Tapine was also convicted of two counts of aggravated robbery and one of assault arising from the same incident.

[2]       Both appellants submit their sentences, seven years’ imprisonment with respect to Mr Tapine and six years with respect to Mr Karlytsky, were manifestly excessive.

Background facts

[3]       Approximately six 14 year old boys and girls were walking through Linwood Park at about 3.30 a.m. on 12 April last year.  They came upon the appellants who, with two others, were also in the park.  Most of those in the two groups had been drinking.

[4]       Mr Tapine seems to have begun the violence that evening when he threatened one of the young boys and grabbed his cell‑phone (the first aggravated robbery count).  A female co‑accused of the appellants then grabbed a handbag of another victim.

[5]       Shortly afterwards Mr Tapine punched the young boy who owned the phone several times in the head and he fell to the ground (the assault count).  Mr Tapine then kicked the victim several times in the body and head.  The victim pulled a knife and stabbed the female co‑accused in the stomach and Mr Tapine in the thigh.  Both suffered minor wounds.  Mr Tapine had a small cut on the inside of his thigh.

[6]       The appellant Tapine reacted angrily to the stabbing.  He abused the victim and knocked him again to the ground.  At that stage the victim dropped the knife.  Mr Tapine then dragged him to a nearby basketball court where he subjected him to what the sentencing Judge described as “a prolonged, vicious assault, punching, elbowing, kicking and stepping on him as he lay on the concrete”.

[7]       At this stage the appellant Karlytsky joined in.  He, together with Mr Tapine, continued to kick the victim in the head and body.  Eventually Mr Karlytsky stopped, however, Mr Tapine continued to kick and punch the victim (the two counts of wounding with intent to cause grievous bodily harm).  The appellant Tapine then demanded the victim’s hoodie.  It seems probable the victim was then unconscious.  Mr Tapine removed the victim’s hoodie and shoes (the second aggravated robbery count).

Judge’s sentencing remarks

[8]       Judge Doherty in sentencing considered the wounding offending was at the top of band one or the bottom of band two of R v Taueki [2005] 3 NZLR 372 (CA). He started at six years’ imprisonment for both appellants. He uplifted the starting point for Mr Tapine to reflect the two aggravated robbery charges and the assault to seven years’ imprisonment and added a further year to reflect the appellant’s past record. He then deducted twelve months for Mr Tapine’s youth and imposed a final sentence of seven years’ imprisonment.

[9]       As to Mr Karlytsky, he gave an uplift of one year from the starting sentence of six years to reflect the appellant’s very bad past record.  The Judge reduced this sentence by twelve months for the appellant’s youth, imposing a final sentence of six years’ imprisonment.  At the time of sentencing Mr Karlytsky was already serving a sentence of eighteen months’ imprisonment for assault with intent to injure in similar circumstances to the current offending.  The Judge decided the sentence of six years’ imprisonment should be cumulative on the eighteen month sentence.

Appeal grounds

[10]     Mr Tapine submits his overall sentence of seven years’ imprisonment is manifestly excessive because of three errors by the Judge:

a)insufficient account was taken of the victim’s actions;

b)insufficient credit was given for the appellant’s youth; and

c)the Judge failed to consider whether the overall sentence was justified.

[11]     As to Mr Karlytsky, he claims the sentence was manifestly excessive also based on three errors by the Judge:

a)the Judge made no allowance for the “provocation” by the victim;

b)the Judge made an incorrect assessment of an uplift in the starting sentence and gave insufficient allowance for the appellant’s youth; and

c)insufficient weight was given to the totality principal.

Victim’s actions

[12]     The first ground of appeal, therefore, with respect to both appellants is the alleged failure by the Judge to give sufficient weight to the victim’s actions when he stabbed Mr Tapine and the co‑offender: s 9(2)(c) Sentencing Act 2002.  Counsel suggested a six month reduction appropriately reflected the victim’s actions.

[13]     As to this aspect the Judge said:

[20]     Just dealing with this provocation, this whole thing started with the actions of your group and you, Tapine, in particular, not just with the robbery of the cellphone but the initial violence to fell Mr Olsen.  He was being severely attacked by you and he produced a knife and whilst he appears to have admitted culpability for that in the Youth Court, certainly, as I heard the evidence in this trial, he may well have had a defence in the sense of his actions being justified in defending himself.  But once you hit him again and he dropped to the ground and dropped the knife that ought to have been the end of the matter.  Thereafter, you [g]ave him the serious hiding and beating and the majority of violence was meted out to teach him a lesson and was designed by the two of you, in my view, to seriously hurt him, which you did.

[14]     In R v Taueki this Court said:

[32]     Matters which may be seen as leading to lower starting points are:

(a)Provocation:  Where the offender has been provoked, that may justify a lower starting point.  It is not enough simply to claim to have been incensed by the actions of the victim or another: rather, the sentencing Judge will need to be satisfied that there was serious provocation which was an operative cause of the violence inflicted by the offender, and which remained an operative cause throughout the commission of the offence.

[15]     Mr Tapine began the violence with a serious assault on the victim.  The victim had been overwhelmed by Mr Tapine, a much older boy.  He had been knocked to the ground and was being assaulted while on the ground.  The victim’s reaction was defensive.  Mr Tapine suffered a minor cut from the incident.  It was after the victim had dropped the knife that the more serious beating by Mr Tapine and Mr Karlytsky began, well after any provocation was expended.

[16]     Mr Karlytsky was not threatened by or stabbed with a knife.  The only provocation, therefore, that he could assert was the stabbing of his two friends.  However, Mr Karlytsky only became involved after the victim had been disarmed and was on the ground being kicked by Mr Tapine.  At best, therefore, Mr Karlytsky’s actions were entirely retributory.

[17]     We consider the Judge’s rejection of the claim that the appellant’s actions were provoked by the victim’s action was correct and no reduction in sentence was appropriate.

Youth

[18]     The Judge gave each of the appellants a twelve month discount for their youth: s 9(2)(a).  At the time of the offending Mr Tapine was seventeen years of age, Mr Karlytsky eighteen years of age.

[19]     Counsel for the appellants submitted a discount of at least two years should have been given to reflect the appellants’ youth and to recognise that rehabilitation remains a reasonable option for young offenders.  They relied upon this Court’s approach in R v  Chankau [2007] NZCA 587.

[20]     In the District Court in Chankau the Judge had given a discount of three years from a starting sentence of ten years’ imprisonment for a combination of mitigating factors, but especially youth.  However, the circumstances of the appellant in Chankau was quite different than the current situation.

[21]     In describing the appellant’s circumstances this Court said in Chankau:

[29]     The appellant was 15 years old at the time of the offence, had no  previous convictions, and enjoyed family and church support, all factors that suggested potential for rehabilitation.  An ifoga had been offered and accepted.  And the Judge accepted that there was, by the time of sentencing, an element of remorse.

[22]     In approaching youth as a mitigating factor the Court said:

[28]     The cases establish, however, that youth alone does not often justify substantial discounts in cases of violent offending:  see, for example, R v C CA332/95 28 September 1995 at 6, R v Gatoloai [2007] NZCA 319, R v Clarke [2007] NZCA 164, R v Kaukau [2007] NZCA 66, and R v Burns CA247/04 26 November 2004.  There are also cases in which violent offending is especially callous or is of a type that is all too prevalent among young people.  In such cases the public interest in denunciation and accountability may prevail:  R v Rapira [2003] 3 NZLR 794 at [125] (CA), R v Mahoni (1998) 15 CRNZ 428 at 437 (CA), R v Pehi CA82/99 29 April 1999 at [24].

[23]     The Judge in this case, therefore, correctly pointed out in his sentencing remarks:

[21]     As to the matter of youth, neither of you is youthful in the sense of experience in the criminal courts and in particular the experience of significant offending, including the use of serious violence.  Despite the submissions of your counsel, I am not able to discern, particularly through the probation reports, any prospects of rehabilitation or certainly any motivation by either of you to reform.  I have the impression through these pre‑sentence reports that you prefer to continue your affiliation with your gangs.

[24]     In these circumstances the twelve month deduction for the offenders’ youth was appropriate.

Overall Sentence

[25]     The final ground of appeal relating to Mr Tapine was whether the final sentence overall was “appropriate”.  The appellant must establish that the sentence imposed was manifestly excessive before this court will interfere.

[26]     The appellant’s case is that because of a combination of features including the claim that the injuries were not in the really serious category, that there were no weapons involved and that there was no lasting physical consequences, a lesser sentence should have been imposed.

[27]     We consider that the Judge correctly identified that these events came within the top of band one or the bottom of band two of Taueki.  Although no weapon was used, three people set upon the victim.  He was subject to several attacks.  After he was knocked to the ground he was repeatedly kicked in the head.  He was admitted to hospital and described physical symptoms from the attack as continuing. 

[28]     The starting point of six years’ imprisonment was well within the range available to the Judge and if anything on the modest side.  That Tapine’s involvement was clearly greater than Karlytsky’s is reflected in the two aggravated robberies and the assault charges.  As well, he was the instigator of the events.  His starting sentence could have been higher.  No criticism was made of the uplifts.

[29]     We reject the claim that Mr Tapine’s sentence was manifestly excessive.

[30]     The final ground of appeal relating to Mr Karlytsky is that insufficient weight was given to the totality principle.  At sentencing the Judge recognised that this appellant was already serving an eighteen month sentence for violent offending.  He imposed a cumulative sentence because “the matters are entirely separate from your previous offending and are significantly serious so as to warrant a cumulative sentence”.

[31]     The appellant was sentenced on 13 June 2008 to eighteen months’ imprisonment on a charge of injuring with intent to injure relating to events in early September 2007.  As the Judge remarked, the circumstances of the injury with intent charge were very similar to the current charge involving “gratuitous violence meted out to people going about their lawful business, seemingly unprovoked and random”.

[32]     The other particularly relevant factor was that this offending occurred when the appellant was on bail for the injuring with intent charge.  Further the offending involved completely separate incidents.

[33]     Given those circumstances, a cumulative sentence was appropriate and an overall sentence for two serious incidents of seven and a half years’ imprisonment was not beyond the range available to the Judge.

[34]     Both appeals against sentence are therefore dismissed.

Solicitors:
Crown Law Office, Wellington