Enoka v The Queen - [2012] NZCA 157

IN THE COURT OF APPEAL OF NEW ZEALAND

CA712/2011
[2012] NZCA 157

BETWEEN ALBERT ENOKA
Appellant

AND THE QUEEN
Respondent

Hearing: 22 March 2012

Court: Wild, Chisholm and MacKenzie JJ

Counsel: C J Tennet for Appellant
P D Marshall for Respondent

Judgment: 20 April 2012 at 11 am

JUDGMENT OF THE COURT

A An extension of time for bringing this appeal is granted.

B The appeal against sentence is dismissed.

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REASONS OF THE COURT

(Given by Chisholm J)

Introduction

On the second day of his trial in the District Court at Christchurch on a charge of aggravated robbery the appellant pleaded guilty. He was sentenced by Judge Radford to three years’ imprisonment.[1] At the same time he was sentenced to an additional 18 months imprisonment for a burglary that had been committed shortly before the aggravated robbery. He had pleaded guilty to the burglary on his fourth appearance.
[1] R v Enoka DC Christchurch CRI-2009-009-8974, 10 November 2010.
The appellant now appeals against the total sentence of four and a half years’ imprisonment on the grounds that it is manifestly excessive. His appeal is 10 months out of time. Given that the delay has been explained and the Crown has taken a neutral stance we are prepared to extend the time for bringing this appeal.

The offending

Burglary

On 31 May 2009 the appellant broke into a Christchurch residence. After searching the entire house he stole a substantial amount of property including a laptop computer, a camera, jewellery and food. The total value of the stolen property, which has not been recovered, was $6,763. The camera contained photographs that had not been saved elsewhere. At the time of the offending the appellant was on bail.

Aggravated robbery

At approximately 7.45 pm on 6 June 2009 the appellant was in a Christchurch suburban shopping area with a 16 year old male associate. As they walked past a bar the appellant recognised the victim who was inside the bar playing the poker machines. After a short conversation with the victim the appellant asked the victim if he would drop the appellant and his co-offender off at a stated address.
During the journey the appellant and his co-offender told the victim to pull over to the side of the road, following which they started punching him in the head. After the victim managed to get out of the car both the appellant and his co-offender kicked and punched the victim until he fell to the ground. Following that the appellant’s co-offender stomped on the victim’s head and the appellant reached into the victim’s pocket and removed his wallet which contained $200 in cash.
The appellant and his co-offender ran off when they were disturbed by members of the public. In the meantime they had stolen four DVDs from the victim’s vehicle. As a result of the attack the victim suffered bruising to his head and a boot impression on his face.
The appellant was on bail at the time of the offending.…

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 The Queen

Details

AGLC: Enoka v The Queen [2012] NZCA 157
Case: [2012] NZCA 157
Decision Date: 20 April 2012

CaseChat Overview and Summary

Albert Enoka appeals against his sentence of four and a half years' imprisonment, imposed by Judge Radford at the Christchurch District Court, on the basis that it is manifestly excessive. The appeal is brought 10 months out of time, but the Court of Appeal extends the time limit for bringing the appeal, as the delay has been explained and the Crown has taken a neutral stance. The offending consists of a burglary on 31 May 2009 and an aggravated robbery on 6 June 2009. The appellant had a substantial criminal record, including previous convictions for burglary and aggravated robbery. The District Court Judge listed several aggravating features of the offending, including premeditation, violence, and the fact that the offences were committed while the appellant was on bail. The Judge imposed a starting point of three years for the aggravated robbery and added 18 months for the burglary, followed by an uplift of eight months for the appellant's criminal record. The Judge then applied a 10% discount for the late guilty pleas, resulting in a total sentence of four and a half years' imprisonment.

The appellant's counsel argues that the starting point for the aggravated robbery was "possibly manifestly excessive on its own" and that the addition of 18 months for the burglary and the uplift for previous convictions were also excessive. The Crown submits that the starting point for the aggravated robbery was within range, as was the additional 18 months for the burglary and the uplift for the appellant's criminal record, which involved 60 convictions over 10 years, including 12 dishonesty offences, 10 violent offences, and 24 breaches of court orders. The Court of Appeal finds that the starting point for the aggravated robbery was conservative and that the additional 18 months for the burglary and the uplift for previous convictions were within the range available to the Judge. The Court is not persuaded that there was any error in the Judge's approach to sentencing and dismisses the appeal against sentence.

The Court of Appeal grants leave to appeal out of time but dismisses the appeal against sentence. The total sentence of four and a half years' imprisonment is upheld. The Crown Law Office, Wellington, represents the respondent.

Orders