Akuhata-Brown v The King - [2024] NZHC 1637

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI-2024-416-9 [2024] NZHC 1637

BETWEEN
WIREMU PAREKURA HAKOPA AKUHATA-BROWN

Appellant

AND

THE KING

Respondent

Hearing: 12 June 2024

Appearances:

M A Terekia for Appellant

J D Bridgman for Respondent

Judgment:

20 June 2024

JUDGMENT OF BOLDT J

(Sentence appeal)

[1] On 10 April 2024 Judge B Davidson sentenced the appellant, Mr Wiremu Akuhata-Brown, to three years and six months’ imprisonment on a charge of aggravated burglary.1 At the time he was sentenced, the appellant was already serving an 18-month prison term imposed on 7 December 2023 by Judge W P Cathcart. Judge Cathcart had sentenced the appellant on a series of charges including two of unlawful possession of a firearm and one of unlawful possession of ammunition.2

[2] Mr Akuhata-Brown appeals against the three and a half year sentence imposed by Judge Davidson. In particular, he challenges the Judge’s decision not to build a totality discount into that sentence. Mr Akuhata-Brown says the effective total

1 R v Akuhata-Brown [2024] NZDC 7855 [Decision under appeal].
2 New Zealand Police v Akuhata-Brown [2023] NZDC 27666.

AKUHATA-BROWN v R [2024] NZHC 1637 [20 June 2024]

sentence of five years is manifestly excessive when the two sets of offending are considered together.

Background

The offending

[3] In March 2023, the appellant was on electronically monitored (EM) bail. Among other things, he was facing charges of unlawful possession of a loaded 12-gauge pump action shotgun, a semi-automatic Ruger .22 calibre rifle and 15 live rounds of ammunition.

[4] While on EM bail, the appellant took the opportunity to arrange the home invasion of a Gisborne property where cannabis was being sold. The attack was well planned. The appellant set up a group chat for the participants, instructed them not to wear gang colours in order to avoid being identified, advised them about the presence of a security camera and provided advice that the intended victim was likely to try and escape by running out the back door. On 17 March 2023, the appellant arranged for a young associate to visit the address to obtain further information about the layout of the property. Before the attack the appellant messaged the others telling them to “be safe and be dangerous”.

[5] Two of the appellant’s associates attacked the victims’ home on 18 March 2023. They wore balaclavas, and one was armed with a shotgun while the other carried a hockey stick. Two others, who Police have not identified, provided transport.

[6] The attack was a failure. The attackers demanded the occupants let them in, and shouted that they were there “for the dope and the money”. One smashed a window and climbed inside. Fortunately, the occupants managed to flee and raise the alarm, and the burglars left without taking anything.

The appellant

[7] The appellant is 31 years of age. He is a captain and leader of the local Black Power chapter. His cultural report discloses an exceptionally difficult…

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 1637
Decision Date: 20 June 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Wiremu Parekura Hakopa Akuhata-Brown appealed against a sentence of three years and six months' imprisonment for aggravated burglary, imposed by Judge B Davidson. The appellant was already serving an 18-month sentence for firearms and ammunition charges. The appellant argued that the effective total sentence of five years was manifestly excessive, and that Judge Davidson should have applied a further discount to reflect the totality principle. The Crown contended that the sentence was within the appropriate range, considering the totality of the offending. The court was required to determine whether the sentence was manifestly excessive or wrong in principle and whether the Judge had correctly applied the totality principle.

The court found that the sentence of three years and six months for the aggravated burglary was within the available range, considering the appellant's role in planning and directing the attack, which was a terrifying intrusion into the victims' home, with a baby present. The court also noted that the appellant was fortunate that Judge Davidson did not select a higher starting point or impose an uplift, given the appellant's role and the fact that he was on electronically monitored bail at the time of the offence. The court held that the overall sentence of five years was within the appropriate range when considering the totality of the appellant's offending. The appeal against the sentence was dismissed.

The final orders of the Court were that the appeal against sentence is dismissed.

Orders