Hiraka v The King - [2023] NZHC 2898

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-000391

[2023] NZHC 2898

BETWEEN
ARAPETA HIRAKA

Appellant

AND

THE KING

Respondent

Hearing: 2 October 2023

Appearances:

H G de Groot for Appellant (via VMR) B So for Respondent

Judgment:

19 October 2023

JUDGMENT OF ANDERSON J

This judgment was delivered by me on 19 October 2023 at 3:00 pm

……………………………… Registrar/Deputy Registrar

Solicitors: Crown Solicitor, Manukau

HIRAKA v R [2023] NZHC 2898 [19 October 2023]

Introduction

[1] Arapeta Hiraka pleaded guilty to charges of attempted aggravated robbery1 and unlawful possession of a firearm.2 Judge Y Yelavich sentenced him to two years and eight months’ imprisonment.3 He appeals his sentence on the grounds that:

(a)The possession of a firearm offence added little, if anything, to his culpability and the uplift of six months for that offence was excessive.

(b)The Judge was not made aware of, and did not allow discount for, the fact that he was remanded in custody on recall from 20 June 2022 to 7 July 2023. An adjustment was required to reflect this.

[2] The appellant submits that there should have been no more than three months uplift to mark the firearm offence and an adjustment of nine months should have been applied to mark the recall. The appellant says a sentence of one year and nine months’ imprisonment ought to be substituted. The respondent submits the end sentence of two years and eight months’ imprisonment was a stern, but not manifestly excessive sentence.

Approach on appeal

[3] This Court must allow the appeal if it is satisfied that there is an error in the sentence imposed, and that a different sentence should be substituted.4 The overall question on appeal is whether the sentence was manifestly excessive or the sentence is wrong in principle.5

[4] The Court will not, ordinarily, intervene when the sentence is within the range that can be properly justified by accepted sentencing principles. The focus is on the end result rather than the process by which the sentence was reached.6 In exceptional

1      Crimes Act 1961, ss 72, 235(c) and 311(1): maximum penalty of seven years’ imprisonment.
2      Arms Act 1983, s 45(1)(b): maximum penalty of four years’ imprisonment or a fine not exceeding
$5,000 or to both.
3      R v Hiraka [2023] NZDC 14340.
4      Criminal Procedure Act 2011 s 250(2).
5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[35].
6 At [36].

cases, it may nonetheless be necessary to correct a sentence that is within range (for example, where there has been an arithmetical error).7

The offending

[5] On 9 May 2022, Mr Hiraka committed the index offence underpinning the appeal. The summary of facts records:

As [the two security guards] were walking back to their van, the defendant approached them. He pulled a sawn-off single-barrelled shotgun out of a grocery bag, pointed it at [one of the guards] and said “Hey brother I need money”. The defendant…

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 Hiraka v The King

Details

AGLC: Hiraka v The King [2023] NZHC 2898
Case: [2023] NZHC 2898
Decision Date: 19 October 2023

CaseChat Overview and Summary

Arapeta Hiraka appealed against his sentence for attempted aggravated robbery and unlawful possession of a firearm, arguing the uplift for the firearm offence was excessive and that the sentence should be adjusted for time spent on recall. The High Court was required to determine whether there was an error in the sentence and whether it was manifestly excessive or wrong in principle. The Court considered whether the six-month uplift for the firearm offence was appropriate and whether the sentence should be adjusted for the time spent on recall. The High Court held that a six-month uplift for the firearm offence was appropriate but found the sentence should be reduced by six months to reflect the time spent on recall. The Court quashed the original sentence of two years and eight months’ imprisonment and substituted a sentence of two years and two months’ imprisonment.

Orders