Ahokava v Police - [2024] NZHC 3946

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-541

[2024] NZHC 3946

BETWEEN
MICAH AHOKAVA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 10 December 2024

Appearances:

N N Mani for appellant

E H K Rangamuwa for respondent

Judgment:

19 December 2024

JUDGMENT OF JOHNSTONE J

(appeal against sentence)

This judgment was delivered by me on 19 December 2024 at 4 pm

Registrar/Deputy Registrar

Solicitors: MC, Auckland

AHOKAVA v POLICE [2024] NZHC 3946 [19 December 2024]

[1] Micah Ahokava was sentenced in the District Court at Auckland to serve 37 months’ imprisonment.1 He appeals against that sentence, saying it is manifestly excessive.

[2] I must allow the appeal if satisfied that for any reason there is an error in the sentence imposed and a different sentence should be imposed.2 The focus is on the overall end sentence rather than the process by which it was reached. I should not intervene if the sentence is within range and can be justified by accepted sentencing principles.3

Mr Ahokava’s offending

[3] Mr Ahokava’s offending commenced around two months after he was sentenced, on 28 June 2023, to undertake a year of intensive supervision. It is set out, first in detail and then by way of summary, below.

Failing to report for community work — 30 August 2023

[4] On 30 August 2023, Mr Ahokava failed to report to his probation officer as required by a prior sentence of community work on 13 December 2022.4 He was charged by way of summons issued in the District Court at Auckland on 18 September 2023.

Burglary — 29 September 2023

[5] On 26 September 2023, Mr Ahokava’s mother travelled to Australia, leaving her Suzuki Swift secure in her garage and permitting only her daughter to use it. On 29 September 2023, Mr Ahokava burgled his mother’s home, forcing open a window to gain access, taking the Swift’s keys from her bedroom, and driving off.5 Six days later, upon his mother returning home to find the Swift missing, she reported the burglary to police. Mr Ahokava was later charged in the District Court at Manukau, but not until 29 February 2024 (see [19] below).

1      New Zealand Police v Ahokava [2024] NZDC 22739.
2      Criminal Procedure Act 2011, s 250.
3      Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [36].
4      Sentencing Act 2002, s 71(1)(a).
5      Crimes Act 1961, s 231(1)(a). Maximum penalty: 10 years’ imprisonment.

October 2023 offending

[6] On 2 October 2023, Mr Ahakova stole petrol valued at $92.17 from a petrol station in Hamilton.6 Again, he was not charged until 29 February 2024.

[7] On 13 October 2023, Mr Ahokava stole grocery items valued at $576.20 from a supermarket in Botany.7 He was charged by way of summons issued in the Manukau District Court on 4 November 2023.

[8] On 17 October 2023, Mr Ahokava stole petrol valued at $79.99 from a petrol station in Mount Wellington.8 Again, he was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NZHC 3946
Decision Date: 19 December 2024

CaseChat Overview and Summary

Micah Ahokava appeals against the sentence of 37 months’ imprisonment imposed on him in the District Court. He claims it is manifestly excessive. The High Court must allow the appeal if satisfied that there is an error in the sentence imposed and a different sentence should be imposed. The court's focus is on the overall end sentence rather than the process by which it was reached. The appeal will be allowed if the sentence is manifestly excessive. Mr Ahokava’s offending commenced around two months after he was sentenced to undertake a year of intensive supervision. It is set out in detail. In summary, he committed a burglary, an offence of receiving, 20 separate retail thefts totalling $6,398.44 in value (of which only $2,292.93 worth of property was recovered), and offences of failing to report for community work, and failing to report for intensive supervision. The burglary and four of the thefts were committed while Mr Ahokava was subject to sentences of community work and intensive supervision. The other 16 thefts were committed while Mr Ahokava was subject to those sentences and was on bail. The sentencing Judge identified the burglary as the offence most appropriately the subject of a lead sentence. He assigned a starting point of 18 months’ imprisonment. The Judge then assigned starting points of eight months’ imprisonment for receiving the Toyota, 12 months for all of the thefts grouped together, and three months for escaping. Observing (incorrectly) that those starting points together came to 43 months, the Judge applied a seven-month reduction to account for the totality principle, bringing the notional sentence for the various episodes of offending combined to three years’ imprisonment. The Judge then adjusted that sentence upwards: by two months to take account of it featuring offending while subject to a sentence; by three months for it featuring offending while on bail; and by three months to recognise Mr Ahokava’s previous convictions. The Judge then applied a reduction of 15 per cent to account for Mr Ahokava’s guilty pleas, arriving at a final overall sentence of 37 months’ imprisonment. The Judge should have, from the starting point of three years: (a)applied a 30 per cent reduction to that starting point, to account for Mr Ahokava’s guilty pleas and diminished moral culpability arising from addiction; and (b)applied to that reduced figure: (i) an uplift of five months to account for the fact his offending was committed while he was on sentence (and mostly on bail); and (ii) an uplift of three months to account for the personal circumstances of his criminal history. Therefore, the Judge should have imposed an overall sentence of 33 months’ imprisonment. As a sentence of that duration is significantly less than the 37-month sentence that was imposed, it follows that the sentence imposed is manifestly excessive. Accordingly, the appeal is allowed. The sentences imposed in respect of the burglary and receiving charges are quashed, and concurrent sentences of 33 months’ imprisonment are substituted.

Orders