‘The judge was generous’: Shooter loses Court of Appeal bid against conviction

Jamie Kissling has lost his latest appeal, this time against his conviction after he shot his neighbour in the face with a slug gun pistol. Photo/123rf

A sentencing judge was “generous” in not giving a man who shot his neighbour in the eye more jail time, the Court of Appeal has indicated.

Jamie Ronaki Kissling’s road through the justice system has proven rocky since the incident in July 2016, which began when he and his neighbour converged in front of their properties.

An argument erupted, and Kissling had a slug gun pistol.

He pointed it at the victim’s head and fired, leaving his neighbour with permanent vision loss in his right eye.

Kissling initially denied pulling the trigger, before changing his plea to guilty.

But then he changed his mind again and took his fight to vacate his guilty plea all the way to the Supreme Court, which turned him down.

In 2018, he was sentenced to four years and 11 months in prison for the shooting.

He was also subject to the then three strikes law, and the new conviction meant he had to serve his whole sentence without parole.

In a Court of Appeal hearing last month, he challenged that sentence, stating it was manifestly excessive because he should have been given up to a 15 per cent discount for a cultural report which highlighted issues heard at sentencing. Those issues have since been elaborated on in two further reports.

If the appeal court set aside his sentence and imposed a lesser one, Kissling contended that - in light of the repeal of the three strikes regime - he wouldn’t have to serve its entirety.

At sentencing, the judge took a starting point of six years imprisonment, but didn’t apply any uplift for his relevant previous convictions, and gave him 13 months’ discount for time spent on electronically-monitored bail.

The judge didn’t apply credit for Kissling’s submissions around his upbringing at sentencing, stating there weren’t any matters that justified a discount.

He also declined to give a discount for his guilty plea as Kissling had changed his plea and still denied the shooting. Kissling had also indicated he would appeal his conviction.

In its judgment this month, the Court of Appeal found the judge set the starting point within the correct range as Kissling “brought a loaded weapon to the scene of a confrontation, he fired it at the victim’s head, causing him serious, life-changing and enduring injury.

“We consider the six-year starting point adopted by the sentencing Judge was generous,” the decision said.

“As the Judge noted, there were at least three ... aggravating factors present, with the gravity and permanence of the harm done to the victim being of particular note.

“The Judge was similarly generous in declining to uplift for previous convictions.

“Even putting to one side the convictions for which Mr Kissling received a strike warning, he has a long history of moderately violent offending for which an uplift was undoubtedly available.”

The court found that even without an uplift for his criminal history, but with a seven-and-a-half-year start point, discounting his time on EM bail and 15 per cent for cultural matters, it would still result in a jail term of five years.

A seven-year start point would also get an “almost identical” sentence Kissling had actually received.

“We, therefore, consider there is no basis for concluding that the sentence of four years and 11 months was manifestly excessive.

“Once that point is reached, no question of any ‘resentencing’ by this court conceivably arises ... and we do not consider it further.”