Heke v R

Case [2016] NZCA 38 1 March 2016

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA415/2015
[2016] NZCA 38

BETWEEN	OWEN JAMES HEKE Appellant
AND	THE QUEEN Respondent

Hearing:	15 February 2016
Court:	Stevens, Simon France and Ellis JJ
Counsel:	G A Walsh for Appellant M L Wong for Respondent
Judgment:	1 March 2016 at 3.00 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellis J)

Introduction

Mr Heke was found guilty at trial of one charge of kidnapping and one charge of threatening to kill. On the morning of trial he had pleaded guilty to charges of male assaults female and breaching a protection order. He was sentenced in the Hamilton District Court by Judge Burnett to three years’ imprisonment.[1] Mr Heke appeals against this sentence on the grounds that it was manifestly excessive.

Background

[1]R v Heke DC Hamilton CRI-2014-019-2325, 22 July 2015. Judge Burnett also imposed a minimum period of imprisonment of 55 per cent but that is not independently in issue in the appeal.

Mr Heke and the victim had previously been in a domestic relationship. The victim had obtained a protection order against Mr Heke in November 2012.
On 26 April 2014 the victim was staying at her grandfather's house. In the early hours of the morning, Mr Heke broke into the house and entered the victim’s bedroom, waking her. He was intoxicated, angry and abusive. She told him to leave, repeatedly, as did her grandfather who came to her aid. Mr Heke demanded the victim leave the house with him. When she refused, he grabbed her by the hair and dragged her down a set of stairs towards the front door. He pushed and shoved her. She was screaming and crying. He threatened to kill her. Mr Heke stopped only when the victim's grandfather called the police.

District Court sentencing

Judge Burnett took the kidnapping and threatening to kill as the lead charges. She noted both the absence of guideline judgments and the Court of Appeal’s observation that threatening to kill is an area in which the aggravating features relevant to the particular offence can take on real significance, which they did in Mr Heke’s case.[2]
[2]At [13], referring to R v Chiyabi [2008] NZCA 10.
The Judge then identified the following aggravating factors of Mr Heke’s offending: actual and threatened violence, premeditation, uninvited entry into a house in the early hours of the morning, and a vulnerable victim who was asleep. With reference to other authorities, she adopted a starting point of two years and four months’ imprisonment, and applied an eight month uplift for Mr Heke’s previous convictions.
The Judge declined any discount for the guilty pleas because she considered that they neither reflected nor acknowledged the true extent of Mr Heke’s culpability. Rather, she noted, the pleas were entered on the morning of trial in an attempt to minimise responsibility.
After considering the pre-sentence report, Judge Burnett declined to give any discount for remorse or motivation…

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 Heke v R

Details

AGLC: Heke v R [2016] NZCA 38
Case: [2016] NZCA 38
Decision Date: 1 March 2016 at 3.00 pm

CaseChat Overview and Summary

Owen James Heke has appealed against the sentence imposed upon him by the Hamilton District Court. Mr Heke was found guilty of kidnapping, threatening to kill, male assaults female, and breaching a protection order. He was sentenced to three years’ imprisonment for the kidnapping and threatening to kill charges, with concurrent sentences for the other charges. The appeal against the sentence was dismissed by the Court of Appeal of New Zealand. The primary legal issue before the Court was whether the sentence imposed by the District Court was manifestly excessive. Mr Heke argued that the starting point and the uplift for his prior convictions were too high, and that some credit should have been applied for mitigating factors. The Court of Appeal held that the District Court was correct in its sentencing approach. The Court found that the starting point and uplift were appropriate given the circumstances of the case, and that the appellant's guilty pleas did not warrant a discount in the sentence. The Court of Appeal dismissed the appeal against the sentence.

Orders