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Enoka v R

Enoka v R

Case [2018] NZCA 185 8 June 2018

Sentencing

Totality Principle

Uplift for Previous Convictions

Discount for Assistance to Authorities

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA528/2017
[2018] NZCA 185

BETWEEN	ALBERT ENOKA Appellant
AND	THE QUEEN Respondent

Hearing:	17 April 2018
Court:	Kós P, French and Miller JJ
Counsel:	A J D Bamford for Appellant C J Lange and S R D D Bicknell Young for Respondent
Judgment:	8 June 2018 at 10.00 am

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed.
B The sentence of four years’ imprisonment imposed in the High Court for aggravated burglary is quashed and substituted with a sentence of three years and four months’ imprisonment.
CThe sentence of five years’ imprisonment imposed in the High Court for wounding with intent to injure is quashed and substituted with a sentence of four years and three months’ imprisonment to be served cumulatively.
DThe sentence of 12 months’ imprisonment imposed in the High Court for unlawful detainment is quashed and replaced with a sentence of 10 months’ imprisonment to be served cumulatively.
EAll other sentences imposed in the High Court are confirmed.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

Mr Enoka was sentenced in the High Court by Nation J to a total term of imprisonment of 10 years following guilty pleas to a number of charges.[1]
[1]R v Enoka [2017] NZHC 2032 [sentencing notes].
Mr Enoka now appeals his sentence on the grounds it was manifestly excessive.

Factual background

All of the offending occurred over a four day period in February 2015.
On 14 February 2015 Mr Enoka rode a motorcycle despite being a disqualified driver. When stopped by police, he gave a false name. The motorcycle was impounded but Mr Enoka two days later forcibly removed it from a towing yard.
On the evening of 15 February 2015, Mr Enoka and a co-offender together with another unknown male drove to a location to collect Mr Enoka’s partner Ms Johnston. Ms Johnston had been at the house of a Mr Kovacs. Mr Enoka who was a member of the Rebels Motor Cycle gang was wearing a gang vest and balaclava and carrying a knife with a six inch blade. The co-offender Mr Francis was a gang prospect. He too was carrying a knife.
Mr Enoka was angry with his partner because she had been at Mr Kovacs’s house and not at home when he had tried to contact her. He suspected her of infidelity. When Ms Johnston arrived, Mr Enoka punched her in the face, pulled her hair, verbally abused her and threw her into the car. Ms Johnston had been accompanied to the meeting place by Mr Kovacs’s partner Ms Neho and Mr Enoka then told Ms Neho to take them to Mr Kovacs’s house. The unknown male remained with Ms Johnston.
On arrival at the house and wearing a balaclava, Mr Enoka pointed a knife at Mr Kovacs and demanded to know if he was having sex with Ms Johnston and why she had been at his house. Mr…

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 Enoka v R

Details

AGLC: Enoka v R [2018] NZCA 185
Case: [2018] NZCA 185
Decision Date: 8 June 2018 at 10.00 am

CaseChat Overview and Summary

Albert Enoka appeals against the sentences imposed upon him in the High Court following his guilty pleas to multiple charges, including aggravated burglary, wounding with intent to injure, and unlawful detainment. The Court of Appeal of New Zealand was tasked with determining whether the sentences were manifestly excessive. Key issues included the adequacy of the adjustment for totality, the proportionality of the uplift for previous convictions, and the appropriate discount for Enoka's assistance to the authorities.

The Court of Appeal found that while the starting points and the overall structure of the sentence were within the acceptable range, the adjustments for totality, previous convictions, and personal mitigating factors were not appropriate. The Court concluded that the approximately 16% adjustment for totality was adequate as it sufficiently represented the offending. However, the 18-month uplift for previous convictions was deemed excessive, warranting a reduction to 12 months. Additionally, the Court found that Enoka's assistance to the authorities merited a discount closer to 40% rather than the 30% applied by the High Court. These adjustments reduced the total sentence from 10 years to eight years and five months.

The appeal was allowed, and the sentences for aggravated burglary, wounding with intent to injure, and unlawful detainment were reduced accordingly. Specifically, the sentence for aggravated burglary was reduced from four years to three years and four months, the sentence for wounding with intent to injure was reduced from five years to four years and three months, and the sentence for unlawful detainment was reduced from 12 months to 10 months. All other sentences remained unchanged.

Orders