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…

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 Karlytsky and Tapine

Details

AGLC: The Queen v Karlytsky and Tapine [2009] NZCA 230
Case: [2009] NZCA 230
Decision Date: 3 June 2009

CaseChat Overview and Summary

In the case of The Queen v Karlytsky and Tapine, the Court of Appeal of New Zealand heard appeals from Jamie Junior Karlytsky and Harley Ehekera Tapine against their sentences for violent offences committed against a young man in Linwood Park, Christchurch. Both appellants were convicted of wounding with intent to cause grievous bodily harm, with Tapine additionally convicted of two counts of aggravated robbery and one count of assault. They argued that their sentences, seven years for Tapine and six years for Karlytsky, were manifestly excessive.

The legal issues before the court included whether the sentencing judge had appropriately considered the actions of the victim, the appellants' youth, and the totality principle in imposing the sentences. The appellants argued that their sentences should have been reduced based on these factors. The court examined these grounds in detail, considering whether the judge had erred in his application of the law to the facts of the case.

The Court of Appeal found that the sentencing judge had correctly assessed the provocation by the victim, noting that the more serious assault began after the victim had been disarmed and was on the ground. The court also held that the twelve-month discount for youth was appropriate given the appellants' criminal history and lack of prospects for rehabilitation. Finally, the court concluded that the overall sentences, considering the nature of the offences and the appellants' criminal history, were not manifestly excessive. Therefore, the appeals against sentence were dismissed.

The court's decision reinforces the principles that serious violent offending, particularly when perpetrated by individuals with prior criminal records, warrants significant custodial sentences. The judges also emphasised that youth alone does not necessarily justify substantial reductions in sentence, especially in cases involving violent offending.

Orders