R v Kuru [2014] NZHC 1805 (4 August 2014)

High Court of New Zealand

[Index] [Search] [Download] [Help]

---

R v Kuru [2014] NZHC 1805 (4 August 2014)

Last Updated: 20 August 2014

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI 2013-083-001558 [2014] NZHC 1805

THE QUEEN

v

_{DAMIEN SHANE KURU}

Hearing:	1 August 2014
Counsel:	B Charmley for Crown S J Ross for Defendant
Judgment:	4 August 2014

_{JUDGMENT OF RONALD YOUNG J}

Introduction

[1] This is a Crown appeal against sentence. Mr Kuru was originally charged with wounding with intent to cause grievous bodily harm. Later, as part of negotiations with counsel for Mr Kuru, that charge was amended to wounding with reckless disregard.¹ Mr Kuru then asked for a sentence indication.

[2] The sentence indication was 28 months’ imprisonment but real hope was held

out to Mr Kuru by the Judge that he might expect a home detention sentence should certain rehabilitative efforts have been established.

¹ _{Crimes Act 1961, s 188(2).}

R v KURU [2014] NZHC 1805 [4 August 2014]

[3] When the matter came before the District Court Judge for sentencing the Judge was satisfied that there were factors which would justify the reduction of the sentence of two years and four months’ imprisonment to one of approximately two years’ imprisonment and the circumstances also justified the imposition of a sentence of home detention.

[4] The Crown appealed that sentence. They say the sentence is manifestly inadequate and based on an error. The essence of the Crown appeal is that Mr Kuru’s guilty plea discount is excessive, the starting point sentence should have been uplifted for Mr Kuru’s previous convictions and that even if ultimately the imprisonment sentence was two years or less, it was an error to impose home detention in the circumstances.

[5] At the beginning of this hearing I pointed out to counsel that the summary of facts on which the sentence indication was based did not match the charge of wounding with reckless disregard. The summary of facts recorded that Mr Kuru during the course of a dispute with his partner, had gone to the kitchen, obtained a knife, returned to the room where the victim was and stabbed her in the torso. This appeared to be a description of a deliberate stabbing.

[6] I suggested to Mr Ross, counsel for Mr Kuru, that if the sentencing had proceeded on the basis of a deliberate stabbing a sentence of less than imprisonment was extremely unlikely. Mr Ross accepted that position. His client, however, had accepted the sentence indication and a sentence on the basis, he said, that this was not a deliberate stabbing but a reckless stabbing.

[7] The Crown on the other hand maintained that this was a deliberate stabbing. Both parties agreed, therefore, that the sentence indication had not proceeded on the basis of any agreed facts and ultimately the sentencing had not proceeded on the basis of an agreement as to the facts.

[8] I record that an attempt was made by both counsel to see now if an agreement could be reached as to the basis on which Mr Kuru should be sentenced. That did not prove possible.

[9] In those circumstances, in my view, the proper course is as follows. First, I allow the appeal against sentence. The sentence of home detention is quashed. I do so on the basis that the sentencing process has gone wrong and the basis on which Mr Kuru was sentenced has never have been agreed. The issue remaining in dispute is fundamental to an appropriate sentence. Indeed, fundamental to the appropriate charge Mr Kuru should face.

[10] The next question is whether Mr Kuru should be offered the chance to vacate his guilty plea given it was based on a sentence indication.

[11] Section 252 of the Criminal Procedure Act 2011 provides as follows:

252 Defendant may not withdraw guilty plea after sentence imposed on appeal

Except with the leave of the appeal court if that court considers it is in the interests of justice, a defendant who has received a sentence indication is not entitled to withdraw his or her guilty plea if a more severe sentence than that indicated is imposed on appeal.

[12] That section changes the previous view expressed by the Court of Appeal and the Supreme Court that where a greater sentence is going to be imposed on appeal after a sentence indication then the appellant should have the right to vacate his or her plea. Now, pursuant to s 252 leave is required and the touchstone is the interests of justice.

[13] I am satisfied it is in the interests of justice that Mr Kuru be offered the opportunity to vacate his plea. Mr Kuru’s plea of guilty was based on his assertion that he did not deliberately stab the victim. The Crown maintained, however, that he did deliberately stab the victim. A resolution of that fact is vital both as to the type of charge but even more importantly the sentence that might be imposed.

[14] I am, therefore, satisfied that the interests of justice mean that Mr Kuru should be offered the opportunity to change his plea to the charge of wounding with reckless disregard.

[15] That can now be done in the District Court. Mr Kuru should advise the

District Court in writing whether in fact he wishes to vacate his guilty plea.

[16] Given I have allowed the appeal, this matter should now be returned to the

_{District Court for callover. A suitable date will need to be arranged by counsel.}

_{Ronald Young J}

Solicitors:

Armstrong Barton, Crown Solicitors, Wanganui

Stephen Ross & Raukawa Simon, Wanganui