R v Kaiwai DC Wellington CRI-2012-032-1642 [2012] NZDC 1379 (24 August 2012)

Last Updated: 11 January 2018

IN THE DISTRICT COURT AT WELLINGTON

CRI-2012-032-001642
_{THREE STRIKES WARNING}

THE QUEEN

v

_{ROYCE KAIWAI}

Hearing: 24 August 2012

Appearances: A C Whittaker for the Crown

C J Milnes-King for the Prisoner

Judgment: 24 August 2012

_{NOTES OF P A H HOBBS ON SENTENCING}

[1] Mr Kaiwai, you appear for sentence today having pleaded guilty to a charge of wounding with intent to cause grievous bodily harm. That carries with it a maximum penalty of 14 years’ imprisonment.

[2] In May of this year, you were drinking with the victim and others at an address in Lower Hutt. The victim left at about 10.30 pm to go home. You arrived a short time later at the victim’s address. You questioned the victim about your cellphone. You repeatedly asked the victim where it was. The victim told you on a number of occasions that he did not have your cellphone. At about midnight the victim went to bed. His partner and their two young children were in bed asleep with him. You armed yourself with a sharp steak knife from the kitchen and walked into the lounge where the victim was sleeping to confront him once again about the

_{cellphone. He continued to deny having your cellphone. While the victim lay in}

R V KAIWAI DC WN CRI-2012-032-001642 [24 August 2012]

bed, you stabbed him once in the stomach with the knife. The victim had no time to react or to defend himself, as he was lying on the bed. You ran out of the house with the knife. You were pursued by the victim’s girlfriend.

[3] The victim felt pain in his stomach. He pulled up his top and saw blood flowing from the stab wound in his stomach. He got out of his bed, but collapsed on the ground. Others came to his assistance while they waited for an ambulance to arrive.

[4] The victim was transported to hospital where he underwent abdominal surgery, following which he was admitted to the intensive care unit for a short period of time. The victim suffered a five centimetre stab wound which cut through the front and back wall of his stomach, colon and bowel. He lost two litres of blood. The surgeon who treated the victim says the injuries suffered by the victim were life threatening and could have been fatal if the bleeding had continued, or if the wound had been a centimetre or two either side of its ultimate location.

[5] I have read and considered the victim impact statement. That clearly sets out the physical and emotional trauma visited upon the victim as a result of your actions. He is continually reminded of this incident because of the scarring to his body.

[6] In sentencing you today, I have considered the principles and purposes of sentencing. The relevant purposes are the need to hold you accountable for the harm that you have caused to deter and denounce your conduct and to promote a sense of responsibility for the harm that you have caused to the victim.

[7] With respect to the principles of sentencing, I must take into account the gravity of your offending, your culpability, the desirability of consistency in sentencing levels and the need to impose the least restrictive outcome that is appropriate in the circumstances of this case.

[8] The leading appellate authority for offending of this kind is R v Taueki1. The

_{Crown submit to me that there are a number of aggravating features in relation to}

1 [2005] NZCA 174; [2005] 3 NZLR 372 (CA).

your offending. The Crown maintains there was a degree of planning and premeditation. The victim was vulnerable. A weapon was used, which resulted in life threatening injuries to the victim.

[9] The Crown have also referred to three other decisions they say are relevant to your sentencing today. Ultimately the Crown submits that a starting point in the range of five to five and a half years is appropriate in this case.

[10] Ms Milnes-King, on your behalf, takes no issue with that starting point but suggests it should be at the lower end of the range, namely five years.

[11] I am of the view that any premeditation in this case was limited. There was premeditation to the extent that you went to the kitchen to retrieve a knife. That is the extent of any premeditation. The victim was, to some extent, vulnerable as he was lying in the bed at the time. Obviously the victim suffered serious injury and your offending involved the use of a weapon. At least two of the aggravating features identified in R v Taueki are therefore present, namely the serious injury and the use of a weapon. To a lesser extent, as I have said, premeditation and vulnerability is present.

[12] Having considered those matters, R v Taueki and other cases referred to me and submissions made by counsel, I am of the view that your case falls at the bottom of band 2, a starting point of five years’ imprisonment is appropriate.

[13] Ms Milnes-King submits that there was a degree of provocation in this case that should bear on that starting point. In my view there is nothing in the information before me that suggests you were provoked into offending in this way. Clearly there was a dispute between you and the victim, but it seems to me that you were the instigator of that dispute as you pursued your cellphone that the victim apparently did not have.

[14] You have one previous conviction in 2011 for assault with a stabbing cutting instrument. The Crown says a modest uplift for that previous conviction is appropriate. Ms Milnes-King says no uplift is warranted. It is of concern that not

long after that conviction, you now face this more serious charge involving a weapon once again. Notwithstanding that, I do not believe an uplift is warranted based on that sole previous conviction and the nature of the sentence that you received.

[15] You are 20 years of age. You are still a relatively young man. The Crown acknowledges that as a result you may be entitled to some discount for your youth. While no longer a teenager, it is accepted that at 20 you can still be regarded as a young man, in terms of your experience of the world and the potential not to fully appreciate and understand the consequences of your actions. With that in mind, I am prepared to reduce the starting point by what is a generous 12 month reduction to acknowledge your relative youth. In doing so, I also include in that 12 month reduction, your expressions of remorse today that have been provided by way of letter. I do note, however, that in the pre-sentence report it is suggested you have only expressed minimal remorse. That may well be due to what is described as your immaturity of thinking and your still young age and your inability to fully comprehend the consequences of your offending. As I have said, the pre-sentence report records a level of immaturity in your thinking.

[16] There is nothing further in the pre-sentence report that would warrant a further reduction in the nominal prison sentence I have just referred to. You are of course entitled to a discount for your guilty plea which the Crown acknowledges should be between 20 and 25 percent. I see no reason why it should not be the full

25 percent discount.

[17] The nominal sentence after accounting for your youth and remorse is one of four years’ imprisonment. Giving you a full 25 percent discount, that therefore reduces the sentence to one of three years’ imprisonment and that is the sentence I impose upon you today.

[18] It has been drawn to my attention that this of course is a qualifying offence under the Three Strikes legislation and you have not yet been given your stage-1 warning. I am going to give you that warning now.

[19] Given your conviction for wounding with intent to cause grievous bodily harm you are now subject to the Three Strikes Law. I am now going to give you a warning of the consequences of another serious violence conviction. You will also be given a written notice outlining these consequences which lists the serious violence offences.

[20] The first consequence is, if you are convicted of any serious violence offence, except murder, committed after you receive the first warning, you will receive a final warning. In addition, if the Judge imposes a sentence of imprisonment for that offence, other than life imprisonment for manslaughter or preventative detention, then you will serve that sentence without parole or early release.

[21] The second consequence is that if you are convicted of a murder, committed after you received the first warning, you will be sentenced to imprisonment for life. You must serve the life sentence without parole, unless it would be manifestly unjust to do so. If you receive a life sentence without parole, you will not be released from prison. If serving this sentence without parole would be manifestly unjust, the Judge must specify the minimum term of imprisonment you will serve.

[22] As I have said, you will be provided with a written notice of those warnings. I also note that a reparation order of $1800 is sought. It seems to me, bearing in mind the length of your sentence, and the likelihood of you being in a financial position to pay it that no such order is appropriate, and I make no order for reparation.

P A H Hobbs

District Court Judge