Karena v R [2024] NZCA 55 (13 March 2024)

Last Updated: 18 March 2024

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA266/2023 [2024] NZCA 55

	BETWEEN	RACHEL LUKHME KARENA Appellant
	AND	THE KING Respondent

Hearing:	12 February 2024
Court:	Wylie, Edwards and Gault JJ
Counsel:	J P R Scott for Appellant H G Clark for Respondent
Judgment:	13 March 2024 at 11 am

JUDGMENT OF THE COURT

1. The appeal against conviction is dismissed.
2. The appeal against sentence is allowed.

100. The sentence of two years and ten months’ imprisonment is quashed and substituted with a sentence of two years and five months’ imprisonment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gault J)

Introduction

• [1] Following a jury trial in the District Court at Whangārei, Ms Rachel Karena was convicted of wounding with intent to injure contrary to s 188(2) of the Crimes Act 1961. The charge related to stabbing an associate in the back during an altercation. Ms Karena was sentenced to two years and ten months’ imprisonment.^[1]
• [2] Ms Karena appeals against both conviction and sentence. The conviction appeal is brought on the grounds that:

(a) in a pre-trial decision, Judge Rzepecky erred in ruling inadmissible passages of Ms Karena’s police interview;^[2] and

(b) the trial Judge, Judge Orchard, erred in ruling that a Crown witness, Mr Petersen, was a hostile witness and allowing the Crown to cross‑examine him on his previous inconsistent statements.^[3]

• [3] In her sentence appeal, Ms Karena argues that Judge Orchard’s starting point was too high and her discounts for rehabilitation and background factors were insufficient.
• [4] The appeal was filed two days out of time and an extension of time was granted.^[4]

The Crown case

• [5] The Crown case was that on 1 May 2021, at approximately 7:30 pm, Ms Karena went to the victim’s house after being asked by the victim not to do so. Ms Karena parked her vehicle on the road and walked down the victim’s driveway.^[5] Ms Karena was armed with a large, black-handled kitchen knife. The victim was not home, but she arrived home soon after to find Ms Karena standing on her driveway. As the victim was driving down the driveway, she confronted Ms Karena and asked her what she was doing there. Ms Karena tried to climb through the open car window. The victim got out of her car and told Ms Karena to leave. Ms Karena and the victim walked down the driveway together for a short distance. There was a struggle between them, during which Ms Karena dropped a can of gin on the driveway. The victim turned her back on Ms Karena and began walking back towards her vehicle. On her way, the victim bent down to pick up the can. As she was bending down, Ms Karena stabbed her in the back with the kitchen knife. This caused a two to three centimetre laceration behind her right armpit. While still holding the knife, Ms Karena walked to the end of the driveway and left in her vehicle.

Pre-trial decision

• [6] Two days after the incident, Ms Karena went to Whangārei police station, was arrested and gave a police video interview. She accepted her presence on the victim’s driveway, claimed that the victim had been the aggressor, denied stabbing the victim and said that she had seen two other unknown people on the driveway that night before she drove away.
• [7] The Crown intended to produce Ms Karena’s police interview but gave notice that it did not intend to include certain passages. Ms Karena applied to have those passages left in. The Crown said the likely issue at trial would be whether the Crown could prove that Ms Karena caused the wound to the victim.
• [8] In a reserved decision dated 8 June 2022, Judge Rzepecky ruled a number of passages inadmissible.^[6] The passages now in issue covered three topics:

(a) Ms Karena’s suggestion that the victim was intoxicated from using methamphetamine on the night of the offending;

(b) the alleged supply of drugs from the victim’s address; and

(c) alleged general methamphetamine use by Crown witnesses, including the victim.

• [9] In relation to the first topic, the Judge said there was no other evidence to support the claim that the victim was intoxicated on methamphetamine — it was mere speculation and would be prejudicial to the Crown case.^[7]
• [10] In relation to the second topic, the Judge said that Ms Karena’s statement as to any other activity occurring at the house, including the sale of drugs, was not relevant. There were either other people in the driveway or there were not. Ms Karena’s unsupported speculation that the victim sells drugs from her house was not corroborative of her assertion that there were other people on the driveway, one of whom could have stabbed the victim.^[8]
• [11] In relation to the third topic, counsel for Ms Karena submitted to the Judge that the passages from the prosecution witness statements painted Ms Karena in a certain light, namely that she was mentally unwell and could not cope after her relationship breakdown. In Ms Karena’s police interview however she offered a completely different narrative, with the significant factor being the allegation that the victim and Mr Petersen, who had been in a relationship with Ms Karena, had been using methamphetamine on the night of the offending. The defence said this was relevant because it made it more likely that the victim was the aggressor if she had been taking methamphetamine. However, the Judge considered that this went to the very point of s 21 of the Evidence Act 2006 (the Act), which prohibits a defendant from offering his or her hearsay statement in evidence if the defendant does not give evidence. The Judge said that under that section, a defendant who wishes to offer evidence of his or her pre-trial statement will have to give evidence and be subject to cross‑examination. That option remained open to Ms Karena. She did not need to rely upon what she said to the police for this purpose.^[9]
• [12] This third issue arose again at trial when the victim was cross-examined. Judge Orchard considered that the pre-trial ruling did not preclude evidence at trial relating to methamphetamine use at the house, merely that it could not come in via Ms Karena’s statement to police.^[10] The Judge ruled that the defence was entitled to give evidence as to the cause of animus on the part of the victim towards Ms Karena (that it was the result of Ms Karena wanting to get her partner, Mr Petersen, away from methamphetamine use as opposed to any fault of Ms Karena herself), and entitled to put to the victim, the victim’s partner and/or Mr Petersen, that they had been using methamphetamine on the night of the offending.^[11] In evidence, the victim did not accept that Mr Petersen would visit her address and would use methamphetamine with her.

Hostility ruling at trial

• [13] Mr Petersen made two police statements, one on the night of the incident and the other on the following day. In the first statement, he said that he was at the house with the victim and her partner and ran outside when he heard a commotion that involved the victim and another woman yelling. He said that the victim said “Rachel has stabbed me” and that he saw Ms Karena run down the driveway and leave in his car.
• [14] In his statement made the next day, Mr Petersen said that just prior to the commotion, he heard a vehicle approaching down the driveway. He then heard the victim say “[f]uck off the driveway” or similar. He said he ran out with the victim’s partner. The victim shouted to her partner for help. Mr Petersen saw the victim holding her own back and he asked her what had happened. The victim said “she stabbed me”. He asked who, and the victim replied “Rachel”. He looked down the driveway and saw a person he believed was Ms Karena run around the corner and then saw his car drive off. He did not see her well enough to say who it was, but the person was the same build as Ms Karena. He said he did not see or hear anyone else around.
• [15] Several weeks later, on 28 June 2021, Mr Petersen signed a statutory declaration recanting his statements, which he asserted had been taken under duress. He also said he and Ms Karena had never separated.
• [16] At trial, Mr Petersen was called to give evidence for the Crown. He said he was still in a relationship with Ms Karena. He said the shouting sounded very angry and that he had always known the victim to be quite aggressive and violent. He said he saw the victim’s wound but nothing else. He only heard the victim yelling and holding her own back and then saying: “[d]id somebody stab me?” and “[d]id she stab me?” In cross-examination, he said that he had not seen anybody. In re‑examination, he repeated that he had always known the victim to be very violent and uncontrollable, and that he did not see anyone down the driveway.
• [17] During re-examination, the Crown applied to have Mr Petersen declared hostile. The Judge ruled that the Crown could cross-examine him on three issues as a hostile witness:^[12]

(a) to clarify the timing of events;

(b) with defence counsel having raised the issue of whether the witness saw anybody in the driveway during cross-examination, the Crown should be permitted to draw the witness’ attention to his earlier statements and ask him to clarify why there was a difference between them and the evidence he had given at trial; and

(c) vilification of the victim — the Crown should be permitted to ask the witness if he agreed that these criticisms were absent from the statements, and for an explanation of this.

• [18] Re-examination then continued. When asked about the references in his first statement to Ms Karena being at the scene, Mr Petersen said he did not say that. When asked about the second statement and whether his memory might have been a bit fresher at the time, Mr Petersen said no, as he was intoxicated, confused, in shock, and only knew what the victim had told him. In relation to the reference in his second statement to seeing a person he believed to be Ms Karena at the scene, he said he did not say that. He said he was under duress and these statements were composed mostly by police and the victim’s partner who was also in the room. He denied lying to protect Ms Karena and said the police were lying.
• [19] In answer to questions arising from defence counsel, Mr Petersen said that, when he made the first statement, the victim’s partner told him what to say; that he, the victim and her partner had been using methamphetamine, cannabis and alcohol on the night of the offending; and that he had subsequently gone to the police station and to the Court to recant the statements, as they were taken under duress.
• [20] The evidence of the police officer who took the first statement was that Mr Petersen and the victim’s partner were in the same room when the first statement was taken as police were short‑staffed, but that he took the statements one at a time. The police officer who took the second statement said Mr Petersen was alone.

Defence case at trial

• [21] The defence case was that Ms Karena had gone to the victim’s address, but the victim was the sole aggressor and it was not Ms Karena who had inflicted the stab wound.
• [22] Ms Karena gave evidence that she was concerned about the victim and her partner using methamphetamine, and Mr Petersen’s involvement with the victim and her partner. She described the victim attacking her on the night and seeing two people coming down the driveway. She panicked thinking they were coming to join in, then realised they were walking backwards slowly towards the street.
• [23] Under cross-examination, Ms Karena said the victim had yelled out that she was under the influence and that “as she yelled it out to me, she had been up for nine days and she couldn’t have time with my shit”. Ms Karena accepted that she was previously a user of methamphetamine. She then said that the victim was a dealer.

Approach on appeal

• [24] In the case of a jury trial, a conviction appeal must be allowed if the court is satisfied that:^[13]

(a) the jury’s verdict was unreasonable having regard to the evidence, or

(b) a miscarriage of justice has occurred for any reason.

• [25] Miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that:^[14]

(a) has created a real risk that the outcome of the trial was affected, or

(b) has resulted in an unfair trial or a trial that was a nullity.

• [26] The inquiry involves a two-step process: was there an error, irregularity or occurrence in or in relation to or affecting the trial and, if so, did either of s 232(4)(a) or (b) arise in consequence?^[15]
• [27] In relation to (a), whether an error, irregularity or occurrence in or in relation to or affecting the trial “has created a real risk the outcome was affected”, the Supreme Court has confirmed:^[16]

[67] ... That question “requires consideration of whether there is a reasonable possibility another verdict would have been reached”. If the answer to that question is “no”, that is the end of the matter and the appeal will be dismissed. If the answer to that question is “yes”, ... the appeal court then asks whether it is sure of guilt. If the answer is “no”, the appeal will be allowed. If the answer is “yes”, the court determines the error did not in fact create a real risk that the outcome was affected and the appeal will be dismissed. ...

• [28] In relation to (b), consideration of whether the error, irregularity, or occurrence “has resulted in an unfair trial or a trial that was a nullity”, contrary to the defendant’s absolute right to a fair trial,^[17] requires an assessment of the circumstances of the trial as a whole. As the Supreme Court said in Condon v R:

[78] ... A verdict will not be set aside merely because there has been an irregularity in one, or even more than one, facet of the trial. It is not every departure from good practice which renders a trial unfair ... it is at the point when the departure from good practice is “so gross, or so persistent, or so prejudicial, or so irremediable” that an appellate Court will have no choice but to condemn a trial as unfair and quash the conviction as unsafe. ...

• [29] On an appeal against sentence, the first appeal court must allow an appeal if satisfied that for any reason there was an error in the sentence imposed on conviction and a different sentence should be imposed.^[18] The appeal court must dismiss the appeal in any other case.^[19]

Conviction appeal

Pre-trial admissibility ruling

• [30] Mr Scott, for Ms Karena, submitted that the edited version of her police interview played at trial made her appear to have changed her evidence. He submitted that, depending largely on the jury’s assessment of the credibility of Ms Karena compared to the credibility of the victim, the apparent change unfairly undermined the appellant’s evidence. In addition, he submitted that the edited version omitted Ms Karena’s explanation for why there were other people at the scene at the time of the offending. That omission made her bare assertion of those others’ presence appear incredible and unbelievable. That was unfair because Ms Karena had explained why those others were present. He submitted those errors created a real risk that the outcome of the trial was affected, and resulted in an unfair trial.
• [31] The starting point is that the issue arose in the context of the Crown’s intention to adduce the police interview. Section 21(1) of the Act, referred to by Judge Rzepecky, provides that if a defendant in a criminal proceeding does not give evidence, the defendant may not offer his or her own hearsay statement in evidence in the proceeding. The Judge was correct at the pre-trial stage to proceed on the basis that Ms Karena might not give evidence. If a defendant does give evidence, s 35(2)(a) of the Act provides that a previous statement of a witness that is consistent with the witness’s evidence is admissible if the statement responds to a challenge that will be or has been made to the witness’s veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of invention on the part of the witness.
• [32] Section 27 of the Act deals with defendants’ statements offered by the prosecution. Relevantly, s 27 provides that evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is admissible against that defendant unless it is excluded under ss 28, 29, or 30,^[20] and that s 21 (among other provisions) does not apply.^[21]
• [33] Mr Scott referred to Hewett v R.^[22] In that case, this Court referred to the well‑settled principle, which pre‑dates the Act, that where the Crown seeks to produce statements made by a defendant to police which include a mix of inculpatory and exculpatory statements, the entire statement should go before a jury.^[23]
• [34] Mr Scott acknowledged that here, the police interview was wholly exculpatory but submitted that nevertheless, the Crown chose to play it. Accordingly, he said that the entire statement should have been played. However, Hewett does not require irrelevant and unfairly prejudicial material in a police statement to be admitted. As this Court said:^[24]

[19] In R v Green this Court recognised that the operation of s 27 is subject to ss 7 and 8. We agree. A defendant’s EVI or any other form of statement a defendant may make to police often contains irrelevant material. Typically, this material remains in the EVI/statement and it attracts little, if any, attention. It is not usual for a line-by-line relevance analysis of an EVI transcript or a defendant’s written statement to be carried out. So generally, these EVIs/statements are admitted under s 27, without any consideration of ss 7 and 8. However, on occasion they may contain attention-attracting material that is irrelevant and unfairly prejudicial. In this circumstance we consider a ss 7 and 8 analysis should be applied for the purpose of deciding whether redaction is required. We do not see this to be a departure from the principle identified in Kendall v R.

• [35] That applies with at least equal force in the case of an essentially exculpatory statement, as here. In this context, the Crown case was clearly that Ms Karena’s statement to police was false. The issue at the pre‑trial stage was whether the statements in issue were irrelevant and unfairly prejudicial.
• [36] We consider the three evidence topics in issue were correctly ruled inadmissible at the pre‑trial stage. They were of marginal relevance to Ms Karena’s defence that someone else stabbed the victim and they were unfairly prejudicial. In any event, the position changed at trial and the question is whether any unfairness has resulted.
• [37] Taking the first evidence topic in issue — Ms Karena’s claim that the victim was intoxicated on methamphetamine — Ms Clark, for the respondent, submitted that Judge Rzepecky did not err in finding that mere speculation about the victim’s methamphetamine use on the night of the offending was not relevant without more and was highly prejudicial.^[25] We do not characterise the claim as mere speculation even though, in part, Ms Karena was expressing an opinion. However, as already noted, we agree with the Judge that the statements were of marginal relevance and unfairly prejudicial.
• [38] We do not consider that the exclusion of the relevant part of the interview created an unfairness by making Ms Karena look like she was lying at trial since the earlier statement was not in evidence, for four reasons. First, at trial, Ms Karena was permitted to give evidence that the victim was on methamphetamine at the time. Secondly, it was not suggested that Ms Karena was lying about or had recently invented the claim. Such a suggestion would have engaged s 35 of the Act and allowed the earlier statement to be admitted. This never arose. The Crown made nothing of such an inconsistency in closing.
• [39] Thirdly, the claim was not raised as a reason Ms Karena was lying about the stabbing. The Crown did not dispute her evidence about use of methamphetamine. In her closing address, Crown counsel said:

Yes, you’ve heard all the evidence about meth and them smoking marijuana and all of that, you’ve heard all of that. Ladies and gentlemen, that is not why you are here. Yes, it is accepted that that’s the evidence that came out. What does that have to do with what happened that evening? The reason why you are here is to determine what happened on that driveway. Who did it?

• [40] Similarly, in summing up, Judge Orchard said:

[9] ... I mentioned that you have heard allegations of drug abuse, in particular use of methamphetamine and allegations made by Ms Karena that [the victim] and [the victim’s partner] were encouraging Mr [Petersen] to return to or continue using methamphetamine. You may disapprove of drug use but whether Ms Karena’s allegations on that score are true or not will be of little use to you, I suggest, in determining the important issues in this trial. ...

...

[31] ... it was suggested by Mr [Petersen] that he, [the victim’s partner] and [the victim] were taking drugs and drinking before the events of this night and were all intoxicated. ...

[32] Now of course if you accepted that evidence then that would be something you should take into account in assessing whether these witnesses’ evidence is reliable. ...

[33] You have also heard from the police officers and there is more than one who dealt with both Mr [Petersen] and [the victim’s partner] on the night. They said that they did not detect any sign of intoxication. ...

• [41] Fourthly, as the Judge noted, the medical evidence did not indicate that the victim was on methamphetamine at the time.
• [42] We turn to the next evidence topic in issue; the alleged supply of drugs from the victim’s address. As Ms Clark submitted, Judge Rzepecky was live to the potential relevance of the victim dealing methamphetamine from her home, insofar as it related to the likelihood of the presence of others on the driveway. But, as the Judge said, there were either other people on the driveway or there were not.^[26] Ms Karena’s police interview still contained her assertion that she saw two people on the driveway before she drove off, in support of her defence that there were others who could have stabbed the victim that night. Her comment suggesting that perhaps they were there because it was a drug house was highly speculative. The Judge did nor err in concluding that the victim generally supplying methamphetamine was not relevant to Ms Karena’s defence,^[27] and clearly the suggestion that a witness is a methamphetamine dealer is highly prejudicial. The comments about the address being a drug house were also gratuitous. Ultimately, as Ms Clark emphasised, Ms Karena did give evidence at trial of the victim supplying drugs when she said that the victim “ran a meth house and marijuana house. She was a traffic house”. Even though Ms Karena gave the “drug house” evidence in spite of the Judge Orchard’s ruling during the trial,^[28] the jury heard her explanation for why people may have been at the victim’s property. There was no suggestion to the jury that it was a throwaway line that had not been mentioned earlier. No unfairness arose.
• [43] In relation to the third topic, alleged general methamphetamine use by Crown witnesses (the victim, her partner and Mr Petersen), at trial Ms Karena was permitted to give evidence of their methamphetamine use as this became relevant to her explanation for the animosity between the parties. She said she had objected to Mr Petersen using the drug with the victim and the victim’s partner, causing conflict prior to the incident on the driveway. This defence theory was further supported by Mr Petersen’s evidence at trial, in which he accepted that he had been using drugs with the victim and her partner and that the house was an environment “where drugs were heavily used”.
• [44] We do not accept that Ms Karena’s evidence of general methamphetamine use was of much less weight since the jury did not hear this in her police interview. As with the first topic, had there been any suggestion at trial that Ms Karena had recently invented the witnesses’ drug use then it would have been open to defence counsel to apply under s 35 of the Act to lead Ms Karena’s prior statements — this did not occur. Again, there was no unfairness.

Hostility ruling

• [45] Mr Scott submitted that the trial Judge, Judge Orchard, erred in ruling that Mr Petersen was a hostile witness.
• [46] Section 94 of the Act provides:

94 Cross-examination by party of own witness

In any proceeding, the party who calls a witness may, if the Judge determines that the witness is hostile and gives permission, cross‑examine the witness to the extent authorised by the Judge.

• [47] Hostile, in relation to a witness, means that the witness:^[29]

(a) exhibits, or appears to exhibit, a lack of veracity when giving evidence unfavourable to the party who called the witness on a matter about which the witness may reasonably be supposed to have knowledge; or

(b) gives evidence that is inconsistent with a statement made by that witness in a manner that exhibits, or appears to exhibit, an intention to be unhelpful to the party who called the witness; or

(c) refuses to answer questions or deliberately withholds evidence.

• [48] Mr Scott submitted that the Judge did not specify under which sub-paragraph she found Mr Petersen hostile. We consider it was clear the Judge found Mr Petersen was hostile under both paragraphs (a) and (b).
• [49] Mr Scott acknowledged that Mr Petersen’s evidence at trial was on a matter about which he might reasonably be supposed to have knowledge and was inconsistent with his pre-trial statements, but submitted the other requirements of paragraphs (a) and (b) of the definition were not met. We acknowledge that inconsistency is insufficient under either limb of the definition. As the Supreme Court said in Hannigan v R, even where the inconsistency is stark, if there is nothing otherwise suggestive of hostility, it is premature to make a determination of hostility.^[30]
• [50] However, we consider the Judge was entitled to conclude that Mr Petersen exhibited or appeared to exhibit “a lack of veracity” on whether he saw someone at least closely resembling his partner on the driveway.^[31] Contrary to Mr Scott’s submission, it does not matter that the pre‑trial statement was not before the jury — it is the Judge who makes a determination of hostility. Moreover, the Judge was entitled to conclude that Mr Petersen’s inconsistent evidence was given “in a manner that exhibits, or appears to exhibit, an intention to be unhelpful to the party who called the witness” in his criticisms of the victim. We do not accept Mr Scott’s submission that “unhelpful” in the context of a Crown witness requires an independent assessment of the reliability of the evidence given the Crown’s prosecutorial function is to be “ministers of justice, and not to struggle for a conviction”.^[32] No authority was cited for such an approach to the meaning of “hostile”. Also, we are unable to say that Mr Petersen could not have seen Ms Karena, someone resembling her or his car leaving the scene. We consider that Mr Petersen was showing an intention to be unhelpful to the Crown. As Ms Clark submitted, Mr Petersen had given evidence amounting to a full retraction of his prior statements on who else he saw on the driveway, and there was no need to explore further an ambiguity in his evidence.^[33]
• [51] Finally, while the Judge did become involved in asking Mr Petersen some questions after the declaration, we do not accept that the Judge’s role amounted to an unfairness. There was a need for the Judge to ensure that the evidence was limited to the three topics on which she had allowed the Crown to cross‑examine Mr Petersen.

Conclusion on conviction appeal

• [52] We are satisfied that no miscarriage of justice has occurred and the appeal against conviction should be dismissed.

Sentence appeal

• [53] As indicated, Ms Karena argues that the Judge Orchard’s starting point was too high and her discounts for rehabilitation and background factors were insufficient.^[34]
• [54] The Judge correctly identified Nuku v R as the relevant tariff decision.^[35] Nuku sets the following bands:^[36]

(a) Band one: where there are few aggravating features, the level of violence is relatively low and the sentencing judge considers the offender’s culpability to be at a level that might have been better reflected in a less serious charge, a sentence of less than imprisonment can be appropriate.

(b) Band two: a starting point of up to three years’ imprisonment will be appropriate where three or fewer of the aggravating factors listed at [31] of Taueki are present.

(c) Band three: a starting point of two years up to the statutory maximum (either five or seven years, depending on the offence) will apply where three or more of the aggravating features set out in Taueki are present and the combination of those features is particularly serious. The presence of a high level of or prolonged violence is an aggravating factor of such gravity that it will generally require a starting point within band three, even if there are few other aggravating features.

• [55] The Judge considered that the three aggravating features identified by the Crown — seriousness of the injury, the fact that a weapon was used and premeditation — were all present to a high degree.^[37] In addressing the seriousness of the injury, the Judge said that Dr Blakelock’s evidence was that there was considerable loss of blood and that there was a real risk attached to loss of blood. The Judge understood the doctor’s evidence to be that it was a threat to life.^[38] Addressing the use of a knife as a weapon, the Judge said that she considered Ms Karena was lucky not to have been convicted of wounding with intent to cause grievous bodily harm.^[39] She accepted the jury’s verdict as to intention but added that she regarded Ms Karena as being reckless.^[40] The Judge added two further culpability factors: impact on the victim (to a moderate degree) and the victim’s vulnerability (to a low degree).^[41] The Judge also said that the use of knives was far too prevalent in the community and that, certainly in the Whangārei area, knives are introduced in disputes with an alarming degree of readiness. The Judge considered that matter was made worse in this case because Ms Karena brought the knife, which the Judge said was relevant to deterrence, both for Ms Karena and others.^[42]
• [56] The Judge considered the offending fell in band 3 of Nuku. The Judge noted that counsel for the Crown had argued that it was in the upper area of band 2 or the lower area of band 3 and submitted that a starting point of between three and three and a half years was appropriate, whereas defence counsel had submitted that the offending was in the “high midrange” of band 2,^[43] and that a starting point of between two and a half years and two years and nine months was appropriate. Having considered the culpability factors and the extent to which they were present, together with the view she took of the seriousness of the offending overall, the Judge adopted a starting point of three and a half years’ imprisonment.^[44]
• [57] On appeal, Mr Scott submitted that the following factors contributed to the Judge’s starting point error:

(a) overstating the seriousness of the wound that the victim suffered;

(b) overstating Ms Karena’s culpability when referring to her as reckless about causing grievous bodily harm;

(c) overstating the degree of premeditation involved;

(d) not allowing for the overlap between culpability factors involved; and

(e) taking into account the prevalence of the use of knives without there being evidence of that prevalence.

• [58] Mr Scott submitted that there were at most three aggravating features: limited premeditation, the use of the weapon and the relative seriousness of the injury. He submitted the latter two overlap. He submitted that victim impact or vulnerability were not present to a sufficient extent to be described as aggravating features.
• [59] We consider the Judge was entitled to conclude the offending fell within band 3 of Nuku. There were three or more aggravating factors present to a moderate or high degree. The injury was serious. A weapon (a knife) was used. There was premeditation given the evidence that Ms Karena had brought the knife to the scene and was holding the knife on the driveway. The victim impact statement indicated the impact of the offending on the victim was a moderate factor.
• [60] We interpret the Judge’s remark about recklessness (which we understand was not part of the Crown case) to be no more than her observation on the jury’s verdict and the gravity of the offending. The Judge was also entitled to comment on the prevalence of knives. We do not consider this comment erroneously affected the Judge’s assessment of the aggravating factors.
• [61] However, as Mr Scott submitted, the Judge’s comments, in our view, overstated the seriousness of the wound. Dr Blakelock’s evidence was that the wound was actively bleeding which required it to be stitched closed. It therefore had the potential to be very serious in terms of loss of blood, but it only involved muscles and soft tissue. She went on to say that in the general area of the wound, there are “lots of important things” like lungs and bigger blood vessels that could have been damaged but were not. The seriousness of the actual injury should not be conflated with the risk of an even more serious or life‑threatening injury. Overall, we consider that the starting point of three and a half years’ imprisonment was too high and that a starting point of three years’ imprisonment was appropriate.
• [62] In relation to Ms Karena’s personal mitigating factors, the Judge allowed a 10 per cent discount for Ms Karena’s background circumstances plus three months’ credit for time spent on EM bail.^[45]
• [63] Mr Scott submitted that the Judge should have given a discount for rehabilitation that Ms Karena had undertaken and her rehabilitative prospects. He also sought a discount of up to 15 per cent for background circumstances.
• [64] We do not consider the Judge erred in relation to personal factors. In relation to rehabilitation, accepting that Ms Karena had previously made efforts to address her methamphetamine use, she said she had not used methamphetamine for some years and was not affected by methamphetamine on the night — it played no part in the offending.
• [65] We accept that Ms Karena may need rehabilitation for past trauma. A discount for such background circumstances is available where there is a connection with the offending in the sense explained in Berkland v R.^[46] A report prepared for Ms Karena under s 27 of the Sentencing Act indicated that as a child, she had exposure to serious violence or other trauma, separation from family (including being placed into state care at the age of four), lack of prosocial familial support and connection, having a caregiver who was or had been in prison, chaotic living circumstances and high truancy. She also had poor educational outcomes, although did go on to complete further study as an adult.
• [66] However, the Judge observed that she did not see much of a connection between Ms Karena’s background and the offending.^[47] The Judge also noted that Ms Karena maintained she was not responsible for the offending.^[48] We agree that the absence of remorse for offending constrains rehabilitative prospects and so will moderate any available discount. In any event, we consider the 10 per cent discount adequately reflected the causative contribution of the background factors to the offending. We consider the Judge’s 10 per cent discount for Ms Karena’s background circumstances was appropriate and within range.

Conclusion on sentence appeal

• [67] Adopting a reduced starting point of three years’ imprisonment, the discounts of 10 per cent and of three months bring the end sentence to two years and five months’ imprisonment. The reduction of five months’ imprisonment in this case is not tinkering.

Result

• [68] The appeal against conviction is dismissed.
• [69] The appeal against sentence is allowed.
• [70] The sentence of two years and ten months’ imprisonment is quashed and substituted with a sentence of two years and five months’ imprisonment.

Solicitors:
Thode Utting & Co, Auckland for Appellant
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent

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^[1] R v Karena [2023] NZDC 7945 [sentencing notes].

^[2] R v Karena [2022] NZDC 10270 [pre-trial decision].

^[3] R v Karena [2022] NZDC 23106 [hostility ruling].

^[4] R v Karena CA266/2023, 6 September 2023.

^[5] Ms Karena shared this vehicle with Mr Petersen.

^[6] Pre-trial decision, above n 2.

^[7] At [19]–[20].

^[8] At [26].

^[9] At [39]–[41].

^[10] R v Karena [2022] NZDC 22903 at [4].

^[11] At [5]–[6].

^[12] Hostility ruling, above n 3, at [10].

^[13] Criminal Procedure Act 2011, s 232(2)(a) and (c).

^[14] Section 232(4).

^[15] Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [24].

^[16] Haunui v R [2020] NZSC 153, [2021] 1 NZLR 189.

^[17] New Zealand Bill of Rights Act 1990, s 25(a); and Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [77].

^[18] Criminal Procedure Act, s 250(2); and Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [3].

^[19] Criminal Procedure Act, s 250(3).

^[20] Evidence Act 2006, s 27(1) and (2).

^[21] Section 27(3).

^[22] Hewett v R [2022] NZCA 265.

^[23] At [16].

^[24] At [19] (footnotes omitted).

^[25] Pre-trial decision, above n 2, at [20].

^[26] At [26].

^[27] At [26].

^[28] It is unnecessary to determine whether this was the result of a misunderstanding as to the concession recorded by the Judge: R v Karena [2022] NZDC 22903 at [7].

^[29] Evidence Act, s 4 definition of “hostile”.

^[30] Hannigan v R [2013] NZSC 41, [2013] 2 NZLR 612 at [90].

^[31] See hostility ruling, above n 3, at [9].

^[32] R v Puddick [1865] EngR 61; (1865) 176 ER 662 at 663.

^[33] Hannigan v R, above n 29, at [107]: the Court considered that where counsel wished to explore ambiguities in the evidence, they could use s 89(1)(c) of the Act.

^[34] Sentencing notes, above n 1.

^[35] Nuku v R [2012] NZCA 584, [2012] 2 NZLR 39.

^[36] At [38].

^[37] Sentencing notes, above n 1, at [13].

^[38] At [6].

^[39] At [9].

^[40] At [9]–[10].

^[41] At [12]–[13].

^[42] At [14].

^[43] At [22].

^[44] At [22].

^[45] At [28]–[30].

^[46] See Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [16(c)].

^[47] Sentencing notes, above n 1, at [27].

^[48] At [18].