IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE	
CRI-2018-412-000013
[2018] NZHC 2508	

BETWEEN	CHARLIE JUNIOR KAWAU
Appellant	
AND	NEW ZEALAND POLICE
Respondent	

Hearing:	24 September 2018	
Appearances:	S G Vidal for Appellant R P Bates for Respondent	
Judgment:	25 September 2018	

JUDGMENT OF DUNNINGHAM J

Introduction

[1]	The appellant, Mr Kawau, was convicted of wounding with intent to cause grievous bodily harm1.  On 6 August 2014, he was sentenced to five years and   seven months imprisonment by Judge Phillips.2 A minimum period of imprisonment of three years, six months was also imposed. Mr Kawau appeals his sentence, on the basis that the Judge assumed that the victim’s injuries included loss of her eye when this was not, in fact, the case.

[2]	Given the time that has elapsed since sentencing, Mr Kawau also seeks leave to appeal his sentence out of time.

1	Crimes Act 1961, s 188(1).
2	R v Kawau DC Dun CRI-2014-012-001486 [6 August 2014].

KAWAU v NEW ZEALAND POLICE [2018] NZHC 2508 [25 September 2018]

Background facts

[3]	Mr Kawau had, at the time of the offending, been in a relationship with the victim for approximately 18 months. The pair had a history of domestic violence and Mr Kawau had previously been convicted of domestic violence offences against the victim. He also has some 74 convictions, made up of a raft of violent offences, including assaults against females, police and members of the public, along with possession of an offensive weapon.

[4]	On the morning of 18 May 2014, Mr Kawau and the victim had an argument. The victim ran to a neighbouring address in fear, trying to raise the alarm. She was observed by the occupant of the address to be physically shaking and scared.

[5]	Between 19 and 20 May 2014 the victim was violently assaulted by Mr Kawau, who repeatedly struck her about the head, face and eyes, body and arms. The victim was taken to Dunedin hospital by Mr Kawau at approximately 9.00am on 20 May.

[6]	The victim had severe bruising and swelling to her head, face and particularly her eyes. Her right eye was swollen almost completely shut. The victim had fractured bones in her left wrist and required a plaster cast.

[7]	The victim was discharged from hospital on the evening of the 20 May. However, over the ensuing days suffered ongoing pain and nausea from her injuries to the extent that she was required to be re-admitted to hospital for further treatment. The damage to the victim’s right eye was such that she has lost sight in it.

[8]	When questioned by police, both the victim and Mr Kawau said she was attacked by a group of unknown females who had been at her address. The victim went along with this story for some time. Mr Kawau later admitted to causing the injuries and pleaded guilty to the charge.

District Court decision

[9]	Judge Phillips imposed an overall sentence of 5 years 7 months imprisonment.
That sentence was arrived at by reference to the tariff decision of R v Taueki.3

[10]	His Honour identified the features of the offending as including the seriousness of the injury; the extreme violence involved; the attack was directed to the head; the vulnerability of the victim; and the offending occurring within her own home. On that basis, he set a starting point in the middle of Band 2 of Taueki and adopted a starting point of seven and a half years.

[11]	Judge Phillips uplifted the starting point by nine months to reflect an extensive and relevant criminal history. That uplift reflected 10 per cent of the overall starting point. Judge Phillips allowed a full credit of 25 per cent for the appellant's guilty plea and a further 10 per cent for remorse and the appellant's own background.

[12]	That left an end sentence of five years and seven months imprisonment.

[13]	The Judge also considered the standard non-parole period of one third of the sentence would be insufficient to hold Mr Kawau accountable for the harm done; and to achieve deterrence and denunciation, and protection of the community. The Judge set a non-parole period of three years and six months.

Principles on appeal

[14]	Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.4 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.5

3	R v Taueki [2005] 3 NZLR 372 (CA).
4	Criminal Procedure Act 2011, ss 250(2) and 250(3).
5	Ripia v R [2011] NZCA 101 at [15].

Leave to appeal out of time

[15]	Mr Kawau seeks leave to appeal his sentence out of time. Section 248 Criminal Procedure Act 2011 requires a notice of appeal to be filed within 20 working days after the date of the sentence appealed against but the appeal was filed almost four years after the sentencing decision.6

[16]	The overriding consideration for the Court in deciding whether to grant an extension of time is whether the interests of justice support an extension.7 The Court of Appeal said in R v Slavich, that extension of time applications will invariably reduce to two questions. First, why the appeal was filed late? Second, what merit, if any, does the prospective appeal point appear to have?8

[17]	Mr Kawau has filed an affidavit (albeit at this stage the Court has not received a sworn copy on file) which sets out the circumstances which led to the filing of his appeal some four years late.

[18]	Mr Kawau contends that he pleaded guilty because he felt remorseful on hearing that the victim had surgery to remove her right eye. In his affidavit, Mr Kawau explains he learned from his mother sometime after the sentencing that the victim has not had her eye removed. Mr Kawau seeks leave to appeal out of time on the basis of this new information. He also explains that, on hearing the news from his mother, he tried to engage a lawyer to assist him with the appeal, which included contacting his original lawyer, a lawyer in Auckland (which the Legal Services Agency refused to fund because of travel costs), and he was only able to find further counsel when he was transferred down to Invercargill Prison (although it is not clear when this occurred).

[19]	If accepted at face value, the combination of receiving information which suggests the facts relied on for sentencing were wrong, and the difficulty of instructing counsel from prison, might be sufficient to grant leave to appeal if the Court was also satisfied of the merits of the appeal. However, for the reasons discussed below, I do

6	Criminal Procedure Act 2011, s 248.
7	Mikus v R [2011] NZCA 298 at [26].
8	R v Slavich [2008] NZCA 116 at [14].

not consider the appeal is meritorious and, for that reason alone, I would decline leave to appeal.

Merits of the appeal

[20]	The appeal was initially advanced on the ground that the facts relied on for sentencing were incorrect. The summary of facts read as follows:

As a result of the attack, the severity of the damage caused to the victim’s right eye is such that she has lost her sight in this eye. She requires a complete removal of her right eye and a prosthetic to be put in.

[21]	When sentencing the appellant the Judge referred to the fact that she has “lost the sight of her right eye, which is a tragedy for her”,9 and said “the victim’s quality of life is diminished forever by the loss of the sight in one eye”.10

[22]	Mr Kawau’s understanding however was that her eye had been surgically removed and when he found out it had not been, he made the decision to appeal.

[23]	The Crown has made further enquiries as to the position. It has a statement from the victim where she explains that:

Medical professionals have sought my consent to remove my damaged eye, however at the time I chose not to follow through with this. I wanted to hang on to the hope that somehow my sight would return.

[24]	However, she goes on to explain that her damaged eye has deteriorated in physical appearance and “I now wear an eye patch to hide my eye from the gaze of other people as my eye has shrunk in size”. Her optometrist confirms that the right eye has “no functional vision, it is blind. The eye turns upward and outward”.

[25]	In my view, no matter what Mr Kawau’s understanding, it is clear that the Judge sentenced on the basis that she had lost sight in that eye, rather than that the eye was physically removed. The Judge sentenced on an entirely correct assumption as to the loss of sight in that eye.

9	R v Kawau, above n 2, at [6].
10	R v Kawau, above n 2, at [18].

[26]	As a consequence, Ms Vidal did not rely on that as a basis for arguing that the sentence was manifestly excessive. Instead it formed part of the background to filing the appeal out of time.

[27]	Her submissions instead focused on whether the Judge erred by selecting a starting point of seven and a half years, relying on the sentencing bands in the Court of Appeal’s decision of Taueki. She notes that, where the offending could have been dealt with by the imposition of a lesser charge, Taueki suggests that this should be reflected in the band adopted.11 Furthermore, she submitted that in selecting the starting point, there was a degree of double counting or over accentuation of the aggravating factors. For example, she submits that the violence should not be classified as extreme and that reference to the eye injury and an attack to the head involves the double counting of aggravating factors. She also suggested that the offending could not be considered premeditated which is one of the factors that is relevant in the assessment of the level of culpability of an offender in domestic violence matters.

[28]	She then referred to the Court of Appeal decision of Sun v R where the highest starting point that could be adopted for the offending in that case was held to be     six years, and submitting that, by analogy, the same limit should apply here.12

[29]	Once the 10 per cent uplift for prior convictions is added and the 25 per cent discount for the appellant’s guilty plea, she says that an end sentence of four and a half years imprisonment was appropriate.

Discussion

[30]	As indicated above, I do not consider there is any basis for suggesting the Judge sentenced on an erroneous understanding of the facts. The victim has lost sight in her right eye. Furthermore, it is so physically damaged, that she wears an eye patch to hide its appearance. The fact she elected not to have it removed would not have altered

11	At [27].
12	Sun v R [2014] NZCA 278

the trial Judge’s assessment as it was the level of damage to the eye which was material to the sentencing exercise, not its removal.

[31]	The Judge opted for a starting point in the mid range of Band 2 of the Taueki decision. In adopting that starting point he considered:

(a)	the matter involved serious injuries as evidenced by the permanent loss of sight in her right eye and also her broken wrist;

(b)	the matter involved extreme violence because she was struck multiple times about the head, face, eyes, body and arms. He took this account as a moderate factor;

(c)	the attack included violence directed at the head which he took account as a moderate factor;

(d)	the victim was vulnerable by the size differential with the defendant, and also her fear of him, and this was assessed as a moderate factor; and

(e)	the violence occurred in her home where she should have felt safe.

[32]	I do not consider that there has been double counting of the aggravating factors and, in any event, even if there was an overlap, the number of aggravating factors warranted the attack being in the mid range of Band 2 (which requires two or three of the aggravating factors to be present).

[33]	While Ms Vidal referred to the decision of Sun v R and the authorities discussed there, they all involved street attacks, which did not have the obvious aggravating features of vulnerability of the victim or offending in the home.

[34]	Overall, there was nothing raised in Ms Vidal’s submissions to suggest that the sentence was so out of line with established authority that it warranted correction by this Court, let alone in the circumstances where leave to appeal was required because of a four year delay.

[35]	Accordingly, as I would not have allowed the appeal in any event, leave to appeal the sentence out of time is declined.

Solicitors:
S G Vidal, Southern Law, Invercargill RPB Law, Dunedin