Eketone-Mahara v R - [2011] NZCA 71

IN THE COURT OF APPEAL OF NEW ZEALAND

CA376/2010
[2011] NZCA 71

BETWEEN NATHAN EKETONE-MAHARA
Appellant

AND THE QUEEN
Respondent

Hearing: 22 February 2011

Court: O'Regan P, Winkelmann and Chisholm JJ

Counsel: M H McIvor for Appellant
J M Jelas for Respondent

Judgment: 16 March 2011 at 4 pm

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe sentence imposed on Mr Eketone-Mahara in the District Court is quashed. Mr Eketone-Mahara is sentenced to a term of imprisonment of three years, six months for the aggravated robbery. Concurrent sentences are imposed for the other offences as follows: for the kidnapping, two years, six months imprisonment, for the threatening to kill one years imprisonment, for the assault with intent to injure, one years imprisonment, and for the burglary, six months imprisonment.

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REASONS OF THE COURT

(Given by Winkelmann J)

Introduction

The appellant, Mr Nathan Eketone-Mahara, was one of a group of four men who, in September 2009, committed an aggravated robbery, and was jointly charged with that offending. At the first call of the proceeding after arraignment he pleaded guilty to one count each of aggravated robbery, kidnapping, threatening to kill, assault with intent to injure and burglary.
In sentencing Mr Eketone-Mahara, the sentencing Judge, Judge Connell, used the same starting point as he utilised in respect of another offender Mr Paekau who, it is common ground, was the lead offender, and the most culpable of the four men. Another co-offender, Mr Clarke, was sentenced later in the day. When sentencing Mr Clarke, the Judge adopted a lower starting point than that adopted for the appellant. He also allowed a far greater reduction in sentence for Mr Clarke on account of mitigating factors.
Mr Eketone-Mahara now appeals on the grounds that there was a gross and unjustified disparity between the sentence imposed upon him, and that imposed upon Mr Clarke.

Factual background

Circumstances of the offending

The co-offender Mr Paekau contacted the victim on the pretext that he wanted to buy his Mercedes car. It was agreed that the victim would bring the car to Huntly on the evening of Friday 25 September 2009 to be inspected and purchased by Mr Paekau, and that then Mr Paekau would drive the victim back to his home in Auckland. In reality, Mr Paekau’s plan was to kidnap the victim and take his car. To carry out his plan he recruited the three co-accused, Mr Clarke, Mr Rawiri and Mr Eketone-Mahara. Mr Clarke was 20 at the time of the offending, and Mr Eketone-Mahara 18. On the afternoon of the planned meeting the four travelled together to the Huntly area in their own car. Mr Paekau had possession of a pistol, Mr Clarke a knife and Mr Rawiri and Mr Eketone-Mahara were both armed with baseball bats and a knife.
Mr Paekau and Mr Clarke met the victim at a takeaway restaurant in Huntly. It was then agreed that the three men, Mr Paekau, Mr Clarke and the victim, would take the car…

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.

Continue reading Eketone-Mahara v R

Details

AGLC: Eketone-Mahara v R [2011] NZCA 71
Case: [2011] NZCA 71
Decision Date: 16 March 2011

CaseChat Overview and Summary

The case of Eketone-Mahara v R involved an appeal against the sentence imposed on Mr Nathan Eketone-Mahara for his involvement in a series of serious offences, including aggravated robbery, kidnapping, threatening to kill, assault with intent to injure, and burglary. The appeal was heard by the Court of Appeal of New Zealand, with the hearing taking place on 22 February 2011. The Court comprised O'Regan P, Winkelmann, and Chisholm JJ. The central legal issue was whether the disparity between the sentences imposed on Mr Eketone-Mahara and his co-offender, Mr Clarke, was justified or amounted to a gross and unjustifiable disparity.

The Court found that the sentencing Judge had erred in applying the same starting point for Mr Eketone-Mahara as for Mr Paekau, who was more culpable as the lead offender. The Court held that the appropriate starting point should have been the same as that used for Mr Clarke, which was lower. Additionally, the Court observed an unjustifiable difference in the approach to mitigating factors between Mr Eketone-Mahara and Mr Clarke. Although Mr Clarke's earlier guilty plea warranted a greater reduction in his sentence, the Court found that Mr Eketone-Mahara's greater youth at the time of the offending justified a greater reduction for him. Consequently, the Court concluded that the disparity in sentences was unjustifiable and gross.

As a result of the appeal, the Court quashed the sentence imposed on Mr Eketone-Mahara by the District Court and re-sentenced him. Mr Eketone-Mahara was sentenced to a term of imprisonment of three years and six months for the aggravated robbery. Concurrent sentences were imposed for the other offences: two years and six months for the kidnapping, one year for the threatening to kill, one year for the assault with intent to injure, and six months for the burglary.

Orders