The Queen v Kanakartnam [2008] NZCA 258 (25 July 2008)

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The Queen v Kanakartnam [2008] NZCA 258 (25 July 2008)

Last Updated: 30 July 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA24/2008

[2008] NZCA 258

THE QUEEN

v

MATHANAKUMAR KANAKARTNAM

Hearing: 23 July 2008

Court: Robertson, Wild and Heath JJ

Counsel: C B Wilkinson-Smith for Appellant
S B Edwards for Crown

Judgment: 25 July 2008 at 2.30 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wild J)

Introduction

[1] Pursuant to an extension of time to appeal granted on 8 May, Mr Kanakartnam appeals against the sentence of seven years’ imprisonment imposed on him by Judge Gittos in the District Court at Auckland on 20 December 2006.
[2] Mr Kanakartnam was convicted following a trial conducted largely in his absence after he absconded. An appeal against conviction was subsequently abandoned.

Factual background

[3] In the early hours of the morning of 28 November 2004, the appellant and associates rang a Mr Ramadoss at his home. They knew him. A guest in the house, Mr Mada, answered the phone and declined to wake Mr Ramadoss.
[4] The appellant and a man called Mr Kanagasingam took offence at this. Together with Mr Arumugan, the appellant’s co-accused at trial, they drove the six and a half kilometres from Western Springs to Mr Ramadoss’ home in Mt Roskill, arriving around 5.15 am.
[5] The appellant and Mr Kanagasingam went to the front door. After Mr Ramadoss had let them in, they confronted Mr Mada in the lounge. They began beating him around the head and body with their fists and a piece of framing timber they had brought with them. This beating continued for about 30-40 minutes, during which time they dragged Mr Mada around the house. At one stage they dragged him from the bathroom where Mr Ramadoss was trying to administer first aid. While beating Mr Mada, the appellant repeatedly threatened to kill him.
[6] Mr Ramadoss and another occupant of the house tried several times to stop the attack. Mr Mada was eventually dragged out on to the front porch where the beating continued. At this point the appellant’s co-accused, Mr Arumugan, got out of the car. Using a metal pole he had picked up from the porch of the house, he hit Mr Mada hard on the side of the head. The appellant and Mr Kanagasingam meanwhile continued to beat Mr Mada. The three attackers finally left around 6 am, damaging two cars parked outside the address as they departed.
[7] Mr Mada suffered two deep lacerations to his head. One required five stitches, the other three. He also sustained multiple bruising to his scalp and the upper part of his body. He needed time off work to recover and, for a time, hid, fearing further attacks from the three offenders.
[8] The attack was also a traumatic event for Mr Ramadoss, who recognised the attackers as customers of the shop he managed. Fearing for his safety, Mr Ramadoss quit his job and the house.

The sentencing

[9] There is no challenge to the Judge’s description of this attack. He had, after all, heard the evidence about it. The Judge noted that Mr Mada estimated that he had received over 20 serious blows during the attack, as well as threats to kill him.
[10] The Judge identified the following six aggravating features: premeditation; extreme and prolonged violence; attacking the head; use of weapons; home invasion, and at night; multiple attackers - two and then three men attacking a single victim.
[11] The Judge considered this placed this offending in band 3 of R v Taueki [2005] 3 NZLR 372, with sentencing start points in the range 9-14 years. But, because of the comparatively less serious nature of the injuries, the Judge placed the offending “towards the upper end” (but he actually placed it in the middle) of Taueki band 2, with sentences in the range of five to ten years.
[12] He considered there were no mitigating factors.
[13] The Judge took a poor view of the appellant. He pointed out that he had absconded during his trial. He considered he had persistently tried to minimise his involvement in the offending. He dismissed as “lame” the appellant’s explanation that he was drunk and “did not know the New Zealand rules”. He observed:

[22] ... You have been in this country since July of 2001. You came here seeking refuge as a purported political refugee. You have comprehensively abused the refuge given you by this country by this conduct and also by other criminal convictions, which you have accrued since you have been here. Since you have been here you have been convicted of driving dangerously causing death or injury, of driving with excess breath alcohol, and of driving whilst disqualified and now you have committed these very serious violent offences.

[14] He adopted the starting point of seven years’ imprisonment suggested by the Crown, observing “that is the least starting point that could realistically be taken”. As there were no mitigating factors, that was the sentence he imposed.

Submissions on appeal

[15] Mr Wilkinson-Smith made four submissions in support of this appeal, and focused on the first of these:

• The Judge’s starting point was too severe. He ought to have put this offending at the lower end of Taueki band 2, and adopted a five and a half year starting point. In particular, the Judge overstated the violence because the injuries were “superficial”.
• The appellant had mainly punched Mr Mada. The most serious blow was that inflicted by the appellant’s co-accused, Mr Arumugan, with the steel bar. Yet Mr Arumugan was sentenced only to five and a half years’ imprisonment.
• A comparison with other sentences for wounding with intent to cause grievous bodily harm supported a lower sentence: R v Kerr HC HAM CRI 2004-019-7319, 21 September 2005, Ellen France J; R v Aweis HC WN CRI-2006-085-3994, 20 April 2007, MacKenzie J; R v Keoghan [2007] NZCA 109 and R v Williams HC TAU CRI-2006-086-945, 31 July 2006, Lang J.
• The appellant did not have any relevant previous convictions, in the sense that none of them were for violent offending. The lack of relevant previous convictions has been recognised as a mitigating factors: R v Power [1973] 2 NZLR 617 (CA) at 618.

Decision

[16] We do not accept Mr Wilkinson-Smith’s submission that the Judge erred in placing this offending in the middle of Taueki band 2. Indeed, the presence of the six aggravating features correctly identified by the Judge supported the Judge’s view that he could have treated this offending as in band 3. Band 3 requires three or more aggravating features “where the combination ... is particularly grave” (Taueki at [40]). It follows that, given the facts of this gratuitous, premeditated, prolonged and violent attack, committed inside a home at night, a seven year starting point was open to the Judge.
[17] The detailed guidance afforded by Taueki is the touchstone for this sort of offending. Keoghan, the only decision of this Court relied upon by Mr Wilkinson-Smith, reinforces that point.
[18] Appeals such as this are seldom if ever bolstered by reference to sentences imposed by High Court Judges in other cases. Here, Mr Wilkinson-Smith relied particularly on the sentence of Lang J in Williams. Not only are there marked distinctions between the facts of that case and those here, but it is apparent from Lang J’s sentencing remarks that he was influenced by considerations altogether absent in this case.
[19] A further consideration here, absent in any of the cases referred to by Mr Wilkinson-Smith, is that the sentence under appeal reflected the appellant’s repeated threats to kill Mr Mada. Threatening to kill is a crime carrying a maximum sentence of seven years’ imprisonment.
[20] Lastly, we detect no error in the Judge’s summation of the appellant’s criminal record, since being granted political refuge in New Zealand in July 2001.

Result

[21] The sentence under appeal was well within the discretion available to the Judge. The appeal against it is dismissed.

Solicitors:
Crown Law Office, Wellington