Winkelmann v R - [2010] NZCA 215

IN THE COURT OF APPEAL OF NEW ZEALAND
CA153/2010
[2010] NZCA 215
BETWEENKURT TAMATI WINKLEMANN

Appellant

ANDTHE QUEEN

Respondent

Hearing:20 May 2010

Court:William Young P, Chisholm and Keane JJ
Counsel:C D Savage for Appellant

P A Currie for Respondent

Judgment:28 May 2010 at 2.30 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

REASONS OF THE COURT
(Given by William Young P)
An appeal against sentence
[1]        On 19 February this year the appellant appeared before Judge Kellar in the District Court at Dunedin on three charges: injuring with intent to injure, assault with intent to injure and breach of community work. He was sentenced to a total of two years eight months imprisonment and ordered to pay reparations.[1]
[1]       R v Winkleman DC Dunedin CRI-2009-012-1236, 19 February 2010.
[2]        He now appeals against sentence.
The facts
[3]        The charges of injuring with intent to injure and assault with intent to injure related to an incident which occurred in the early hours of 6 February 2009.
[4]        The two complainants (aged 27 and 25) had just left an inner city bar in Dunedin. The appellant and a male companion were in the vicinity. They were being abusive and making rude comments to some girls who were also there. One of the complainants said something to the appellant and his companion. The upshot was that the appellant punched that complainant, who fell straight to the footpath. He continued to punch the complainant’s head as he was lying on the footpath. The second complainant was pushed away by the appellant’s companion. He went over to try to pick up his unconscious friend from the footpath. The appellant punched the second complainant in the face. He fell back against a shop window while the appellant continued to try to hit him. As he tried to protect himself from the appellant, the appellant tried kneeing him in the face and head. He was able to break free and he ran off.
[5]        The first complainant suffered concussion, a black eye, a swollen face and grazing to the forehead and temple. He required follow up treatment at the Dental School for x-rays and ongoing numbness to his face and teeth. The second complainant was, in the aftermath of the incident, unable to open his mouth and was nauseous for days. He was, however, discharged home. On a review three days later a jaw fracture was located and he received acute surgery and internal sutures.
[6]        The charge of breach of community work arose in this way.
[7]        The appellant had been sentenced on three occasions to community work and had 182 hours remaining. He failed, in September 2009, without reasonable excuse, to report to a probation officer as required.
The appellant
[8]        The appellant was 21 years of age at the time of sentencing.
[9]        He has a number of previous convictions including for injuring with intent to injure (relating to an incident on 17 September 2006), injurying with intent to injure (relating…

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 Winkelmann v R

Details

AGLC: Winkelmann v R [2010] NZCA 215
Case: [2010] NZCA 215
Decision Date: 28 May 2010

CaseChat Overview and Summary

The case of Winkelmann v R involved an appeal against the sentence imposed on the appellant, Kurt Tamati Winkelmann, by Judge Kellar in the District Court at Dunedin. The appellant was sentenced to a total of two years and eight months imprisonment and ordered to pay reparations, following his conviction on three charges: injuring with intent to injure, assault with intent to injure, and breach of community work. The primary legal issue before the Court of Appeal of New Zealand was whether the starting point of the appellant's sentence was too high and whether insufficient weight was given to the appellant's attempts at rehabilitation and the time spent on bail prior to sentencing.

The Court of Appeal, comprising William Young P, Chisholm, and Keane JJ, examined the appellant's arguments and the sentencing approach taken by Judge Kellar. The Court noted that the appellant's actions resulted in serious injuries to both victims and that there was no mitigating context. The Court found that the starting point of three years and three months was well within the range of appropriate sentences for such offences. The Court also considered the appellant's efforts to rehabilitate himself, including his participation in a stopping violence programme, and noted that while time spent on bail might typically be taken into account, the conditions of the appellant's bail did not warrant a significant discount.

Ultimately, the Court found that the appellant's previous serious offending warranted only a modest uplift in the sentence, and that the appellant's guilty pleas and willingness to pay reparation were adequately accounted for in the sentencing. The Court concluded that there was no principled basis for suggesting that the prison sentence imposed upon the appellant was excessive.

The appeal was dismissed, and the sentence imposed by the District Court was upheld. Winkelmann was required to serve the two years and eight months imprisonment, as well as pay reparations to the victims.

Orders