Police v Kakino [2007] CKHC 5; CR 11 of 2005 (15 June 2007)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CRIMINAL DIVISION)

CR NO. 11/2005

BETWEEN:

POLICE

AND:

ANTHONY KAKINO

Mr Mitchell for Police
Mr Vakalalabure for Defendant
Date: 15 June 2007

SENTENCE OF PATERSON J

[1] Mr Kakino, you have pleaded guilty at the beginning of the trial to a charge of aggravated wounding with intent to cause bodily injury, a charge that carries a maximum penalty of 14 years under the appropriate legislation.

[2] The facts are not in dispute, you entered the victim’s home at about 8.30pm and struck her on the side of her head at least three times with a piece of wood taken from a hedge outside.

[3] You fled when she screamed. You told the Police that you wanted to knock her out so that she couldn’t identify you and also so you could steal her money and the keys to her car.

[4] The physical effect on the victim was she was unable to open her jaw for two weeks to eat properly, she has a swelling on the right side of her face and she was absent from her work for two weeks. She still has residual effects of vertigo, I will say more about the emotional effects later. I should also indicate at this stage that the expenses for treatment totaled $1404.68.

[5] I have read the Probation Report and the submissions made by both counsel and I have heard of course from them this morning.

[6] This offence was committed when you appeared to have only been two days over your 17th birthday, you are now 19 years old. You were largely brought up by your uncle and his wife after your parents separated.

[7] You have worked for your uncle from time to time and appear recently to have been more gainfully employed than you were previously. You left school at the age of 15, while at College.

[8] I note that you have paid off a motorcycle at a cost of $2400, you have been described as someone who has not been in trouble before and you have assisted your uncle and family in many chores around their homes. You appear to be someone that apart from this offending, has lived a crime-free life and you have been a good and reliable assistant to your uncle.

[9] You have confirmed to the Probation Officer that your intention was to steal money because you had no money at the time and that you took the stick to hit someone in case you got caught.

[10] The Probation Officer suggests that there were three causes for the offending, one you were not employed at that time; two you had no money and three, stupidity.

[11] I have read the matters that the Probation Service ask me to take into account and I will do so at the appropriate time and of course as you are well aware the Probation Service has recommended 12 months imprisonment.

[12] I have referred to the physical effect that your actions had on the victim. It also has left her with some serious emotional effects as one would expect. She fears constantly that someone is behind her, she cannot sleep with the lights off, she imagines noises. She cannot afford to go and get any sort of counseling. She used to feel safe at all times and felt that no one would harm her, she no longer can do this. As in many of these cases, I suspect that the emotional harm that you have caused will last for quite some time.

[13] The difficult task in your sentencing is fixing the appropriate tariff. The Crown has referred me to a recent New Zealand case of Taueki and Others where if you had been sentenced in New Zealand, the starting point would have been 5 years or thereabouts and you will probably finish up with a sentence of about 4 years.

[14] I am grateful to both counsel and to the Crown for accepting that the New Zealand tariffs do not apply in this country and I would also come to the conclusion that one of the aspects that I need to take into account, namely, general deterrents does not seem to apply in this country as it does in other countries.

[15] But, based on that case, this was moderately serious offending. There was quite severe violence, there was pre-meditation in my view, they perhaps not to the extent that there often is, there was a relatively serious injury, you used stick as a weapon, you attacked the victim on her head which aggravates an assault charge, you were there to try and steal from her and this was, to use the term of the New Zealand case, Mr Mitchell says is not used here so often "a home invasion", often considered by Judges one of the most insidious effects of a crime of this nature, the encroachment on a person’s own home.

[16] I need to take into account the normal sentencing requirements of denunciation, punishment, deterrence and rehabilitation and I noted what your counsel said about rehabilitation.

[17] As I have said, I do not intend to take general deterrence into account to the same extent as I might if I had been sitting in New Zealand.

[18] There are mitigating factors in this case. Before I look at them, I assess this crime as having a starting point of probably about two and a half years imprisonment before I allow for your personal mitigating factors.

[19] Those mitigating factors are your age, you are a first offender, your guilty plea although it would have helped and saved a lot of resources if you had pleaded guilty at an earlier stage. I will take into account the delay in bringing the matter to a trial as is being noted this matter is going to be considered by the Court of Appeal but if the Court were to hold that it is a genuine factor, it should be taken into account in the sentencing.

[20] Taking all these matters into account, I intend to sentence you to a term of imprisonment of one year three months. I also order that you pay reparation of $1404.68 to the victim in such a manner as is agreed with the Probation Service.

Judge