| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA415/2015 [2016] NZCA 38 |
| BETWEEN | OWEN JAMES HEKE |
| AND | THE QUEEN |
| Hearing: | 15 February 2016 |
Court: | Stevens, Simon France and Ellis JJ |
Counsel: | G A Walsh for Appellant |
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…
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- Heke v R [2016] NZCA 38
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- [2016] NZCA 38
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