Hohaia v The Queen

[2020] NZHC 1795

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-409-000076

[2020] NZHC 1795

BETWEEN

MARIO MATHEW HOHAIA

Appellant

AND

THE QUEEN

Respondent

Hearing:	16 July 2020
Appearances:	S A Teki-Clark and K E Bucher for the Appellant S L Dayal for the Respondent
Judgment:	24 July 2020

JUDGMENT OF NATION J

Introduction

[1]The appellant, Mr Hohaia, pleaded guilty to two charges of receiving (over

$1,000) and one charge of unlawfully taking a motor vehicle. On 15 October 2019, he was sentenced to two years and seven months’ imprisonment. He appeals his sentence on the ground it was manifestly excessive.

[2]        Leave to appeal out of time is required. Mr Teki-Clark, counsel for Mr Hohaia, explains there were delays in obtaining a full legal aid grant. An application was made in November 2019, but a full grant was not received until 6 April 2020. Mr Teki-Clark says the COVID-19 pandemic resulted in further, unavoidable delays. The Crown does not object to leave being granted. Accordingly, leave to appeal out of time is granted.

HOHAIA v R [2020] NZHC 1795 [24 July 2020]

Facts

[3]        Between 5 September and 6 September 2018, Mr Hohaia unlawfully took a Toyota motor vehicle from outside an address in Woolston. The vehicle was later located at Mr Hohaia’s property.

[4]        On 6 September 2018, an address in Kaiapoi was burgled. Approximately 50 items were taken, including electronic equipment, jewellery and bicycle parts.

[5]        On 8 and 9 September 2018, Mr Hohaia pawned items stolen from the Kaiapoi address and, in total, received $290.

[6]        Between 14 September and 15 September 2018, a business in Addington was burgled. Items taken include Apple iPads, handheld barcode scanners and tablets.

[7]         On 19 September 2018, police went to an address after receiving information that an Apple MacBook was pinging on the “Find My iPhone” at the address. Mr Hohaia was located at the back of the address in a sleepout. Mr Hohaia retrieved the MacBook after being spoken to by police. The stolen Toyota motor vehicle was located at the rear of the property. Mr Hohaia had in his possession a vehicle key, which started the vehicle.

[8]        That same day, a search warrant was issued for the address. Multiple items from the two burglaries were located inside the sleepout. The total value of the received property in Mr Hohaia’s possession was estimated by police to be $8,859.83. In explanation, Mr Hohaia stated he had “received some shit”.

District Court decision

[9]        Judge O’Driscoll considered the two receiving charges to be the lead offending.1 On these charges, his Honour set a starting point of two years’ imprisonment. His Honour applied an uplift of nine months’ imprisonment on the charge of unlawfully taking a motor vehicle. A further uplift of six months’

1      R v Hohaia [2019] NZDC 20702.

imprisonment was applied to take into account Mr Hohaia’s previous convictions. This brought the sentence to 39 months’ imprisonment.

[10]      The Judge applied a discount of eight months (approximately 20 per cent) to reflect Mr Hohaia’s guilty pleas. This brought the end sentence to 31 months’ imprisonment (two years and seven months’ imprisonment).

[11]      The Judge ordered reparation on the receiving charges in the sum of $5,898.42 and $1,140, in respect of the unlawful taking of the motor vehicle.

Principles on appeal

[12]      Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied there has been an error in the imposition of the sentence and a different sentence should be imposed.2 As the Court of Appeal mentioned in Tutakangahau v R, quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.3 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.4 The focus on appeal is the end sentence, rather than the process by which the sentence was reached.5

Submissions

[13]      Mr Teki-Clark, on behalf of Mr Hohaia, submitted the starting point adopted by the District Court Judge in relation to the lead offending was too high. Counsel submitted the unlawful taking of a motor vehicle ought to have been dealt with on a concurrent basis. In the alternative, having adopted a cumulative approach, the Judge erred in not giving an adjustment for totality when one was required.

2      Criminal Procedure Act 2011, ss 250(2) and 250(3).

3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

4      Ripia v R [2011] NZCA 101 at [15].

5      Islam v R [2020] NZCA 140 at [32].

[14]      In written submissions, counsel argued the value of the property taken was considerably less than the $10,000 referred to by the Judge. Mr Teki-Clark had not been counsel in the District Court. Before me, he accepted the District Court Judge had information indicating the estimated total value of property taken was $8,859.83. He submitted it was nevertheless relevant that some items were able to be recovered or reused.

[15]      Mr Teki-Clark submitted the starting point on the lead offending ought to have been in the range of 12 to 18 months’ imprisonment. He submitted the sentencing Judge failed to recognise that Mr Hohaia did not receive all the items taken in the burglaries, and that the value of the property in his possession was well below $10,000.

[16]      In support of the submission that the Judge placed excessive emphasis on the connection in time between the burglaries and the receiving, Mr Teki-Clark referred to Ellis v R.6 Mr Teki-Clark argued Mr Hohaia’s culpability was broadly similar to Ellis, where the offender was found with the stolen property “within hours if not minutes” of the burglary.7 The Court of Appeal in Ellis considered the 18 month starting point “stern”, but within the available range.

[17]      Mr Teki-Clark argued the closeness in time between the burglary and the offender being in possession was a factor which could lead to an increase in sentence. He argued this was a factor in a number of cases that showed a starting point in the range of 12 to 18 months’ imprisonment was appropriate. He argued there was not real closeness here.

[18]      In Proctor v Police, jewellery valued at approximately $5,000 was stolen from the victim’s house and sold by the offender that same day.8 The starting sentence was 15 months’ imprisonment. In Nikau v R, the offender was in possession of $6,940 worth of items taken from a private dwelling four days prior.9 The starting point was 12 months’ imprisonment. In Burkhart v R, the offender was found guilty of two

6      Ellis v R [2012] NZCA 513.

7 At [9].

8      Proctor v Police [2018] NZHC 763.

9      Nikau v R [2017] NZHC 1366.

charges of receiving property, valued at up to $4,500.10 A starting point of 12 months’ imprisonment was upheld on appeal.

[19]      Counsel submitted that, even with the value being close to the $10,000 mentioned by the District Court Judge, it did not follow that a sentence beyond the starting point adopted in Burkhart was justified. He submitted, based on the authorities, a starting point of 15 months’ imprisonment was appropriate.

[20]      Counsel also argued that, either the sentences should have been concurrent or there should have been an adjustment for totality. He suggested this was required because of the proximity of the different offences and the similar nature of the offences involving, as they all did, misappropriation of property. He said there was also a commonality in the offending because all the stolen property was located at the same time and place. He referred to the way the High Court had adopted concurrent sentences for separate offences for stealing and unlawfully taking cars, with both sets of offending taking place within the space of a few weeks.11

[21]      The submissions of Miss Dayal for the Crown are reflected in my analysis below.

Analysis

[22]      A distinguishing aggravating feature of Mr Hohaia’s offending was the number of burglaries from which he had received property, and the closeness in time between his being in possession of the stolen property and those burglaries. That closeness strongly indicated he had a close connection to whoever had been involved in the burglaries. As the Judge noted, in receiving stolen property, Mr Hohaia was rewarding those involved in the burglaries and thus encouraging that dishonesty. He thereby was contributing to the harm that results from such burglaries. The property he received came from a burglary of both commercial premises and a residential dwelling.

[23]      In the present case, Mr Hohaia pawned some of the items two days after the residential burglary. He was found in possession of items from the second burglary

10     Burkart v R [2013] NZCA 314.

11     Te Tai v Police [2015] NZHC 2453.

approximately four days later. The time at which he was in possession of those items was thus closely connected to the time of the burglaries.

[24]      In the context of this case, the unlawful taking of the motor vehicle adds significantly to the seriousness of the offending and increased the need for a deterrent sentence. With the charges of receiving, Mr Hohaia was not charged with actually entering the different premises, including a home from which property was stolen. With the unlawful taking, he had pleaded guilty to, himself, dishonestly taking another person’s property. It was not the same form of dishonest misappropriation of property as occurred with the receiving charges.

[25]      The fact the car was found at his address on 19 September 2018, after it had been taken on the night of 5 September 2018, indicated Mr Hohaia had taken the car intending to keep it from its true owner with all the inconvenience and financial loss to the owner that was likely to result from his doing so.

[26]      As Miss Dayal submitted, the unlawful taking charge demonstrated an intention to steal property and his direct involvement in doing so. On the receiving charges, the criminality lay in his knowledge or awareness of how someone else had stolen property, and for him to nevertheless acquire that property for his own ends.

[27]      The Judge adopted a starting point of two years’ imprisonment for the two receiving charges and an uplift of nine months’ imprisonment on the charge of unlawfully taking a motor vehicle. As a result, the starting point for all offending was 33 months’ imprisonment.

[28]      I do not consider such a starting point would have been out of range for the combined offending.

[29]      In Ellis, the Court of Appeal considered a starting point of 18 months on a receiving charge was within range.12 That was for receiving in respect of property valued at $5,000 and, significantly, where there was just one charge of receiving, in contrast to two charges here.

12     Ellis v R, above n 6.

[30]      A significant feature of Mr Hohaia’s receiving was the number and different nature of the items he had in his possession which had been taken in the burglary. On 8 September 2018, he pawned a watch stolen in the burglary of a home that occurred on 6 September 2018. On 9 September 2018, he pawned sunglasses, a head torch, a heart-rate monitor and a GPS that had been stolen in that burglary. When his home was searched on 19 September 2018, the Police found further items that had been stolen in that burglary. Those items must have included the women’s clothing and jewellery which were likely to have been taken from a home.

[31]      In the burglary of commercial premises that occurred on 14 September 2018, 11 Apple iPads, 13 hand-held barcode scanners and two tablets were taken. Again, multiple items taken in that burglary from commercial premises were found at Mr Hohaia’s address.

[32]      The nature and value of the items taken in both burglaries and received by Mr Hohaia also made the offending more serious because this was receiving which further incentivised and rewarded the person who had committed the burglary, more so than for instance would happen with a person who benefits from receiving just one or a few items that were stolen in a burglary. It is also significant that, in this case, Mr Hohaia was not just receiving items to make a short-term gain. He did not dispose of the items taken as soon as he had received them. They were kept at his home, presumably so he could make money out of them at a time and in circumstances that would be the more convenient for him. His receiving thus had the hallmarks of being a calculated and deliberate way of profiting from stolen property.

[33]      Because Mr Hohaia had stolen the vehicle on 5 September 2018 and still had it at his property on 19 September 2018, his unlawful taking of a motor vehicle effectively involved his theft of the vehicle with an intention to deprive the owner permanently of it.

[34]      Miss Dayal helpfully referred to the Court the judgment of Moore J in Ratahi v Police.13 There, he discussed various cases and the starting points adopted for unlawful takings.14

[35]      With reference to the cases referred to, particularly Singh and Edwards, Moore J considered a starting point of no more than 18 months should have been adopted for the unlawful taking in that case. That taking was different from that of Mr Hohaia. The defendant there broke into a car, hot-wired it and drove off. He later sped away from Police after they tried to stop him for a routine traffic breath test. He was 18 years old. The unlawful taking there was in the nature of a taking for a joyride, common with offending in a youth of that age. Mr Hohaia’s unlawful taking was more in the nature of property theft at the owner’s expense.

[36]      In Ratahi v Police, Moore J held that a starting point of no more than 18 months’ imprisonment should have been adopted for the unlawful taking charge, that is, a starting point of up to 18 months would have been appropriate.15

[37]      Mr Teki-Clark referred to Galloway v R.16 There, Woolford J considered a starting point of 12 months was appropriate for the unlawful taking involved in that case rather than a 20 month starting point.17 In reaching that view, he referred to a number of judgments where starting points of between 12 and 15 months had been adopted or approved. The starting points of 12 months were, in the main, adopted in situations where the vehicles taken were of lesser value and in circumstances where the taking would not appear to have been to permanently deprive the owner of the vehicle. His Honour noted that, in Wood v Police, Downs J had suggested “a single unlawful taking charge can give rise to a starting point of at least 18 months’ imprisonment, if the offence has a significant aggravating feature or features”.18

13 Ratahi v Police [2014] NZHC 2394.

14 Hall v Police [2012] NZHC 2641 – starting point 12 months; Singh v R [2011] NZCA 139 – two and a half years; Edwards v Police HC Auckland CRI-2010-404-103, 11 May 2010 – on appeal, Venning J considered a starting point of 15 months’ imprisonment for the unlawful taking would have been appropriate.

15 Ratahi v Police, above n 13, at [22].

16 Galloway v R [2019] NZHC 3363.

17 At [17].

18 At [16], citing Wood v Police [2018] NZHC 1629 at [24].

[38]      Accordingly, I consider the starting point or uplift for the unlawful taking in Mr Hohaia’s case could have been more than nine months, if that was to be a starting point for that charge as a separate offence.

[39]      In R v Xie, the Court of Appeal held, where cumulative and concurrent sentences are imposed, how the sentence is reached is less important than the proper assessment of the “totality of the offending”.19

[40]      The taking of the motor vehicle, for reasons mentioned, was different in a material way from the receiving. The vehicle was taken on the night of 5 September 2018 from Woolston, a part of Christchurch city. The burglary of the residential dwelling occurred between 7.30 am and 3.15 pm on 6 September 2018 but that was from an address at Kaiapoi, a town outside Christchurch. Mr Hohaia admitted only to receiving property taken from that burglary so he could not say the car was taken for the purpose of committing that burglary. In any event, he still had that vehicle when his home was searched on 19 September 2018.

[41]      The fact all the stolen property was found in one location at the same time did not logically mean there was such a connection between the different offences that the sentencing should have been on a concurrent basis. It was not how the property was stored when it was found in Mr Hohaia’s possession which constituted the offending for which he was to be sentenced. His offending lay in the way he had acquired stolen property on the receiving charges and the way he had unlawfully taken the car.

[42]      It follows that there was no error in the sentencing Judge imposing cumulative sentences, or in not providing a discount on account of totality.

[43]      The starting point adopted for the two charges of receiving could be considered stern but the uplift for the unlawful taking, as a starting point, could have been higher and still within the range of sentences available for that offence. Standing back, I consider the starting point arrived at for all the offending of two years and nine months was within range.

19     R v Xie [2007] 2 NZLR 240 (CA) at [17].

[44]      There was then an uplift of six months for Mr Hohaia’s extensive criminal history. At the time of sentencing, he was aged 41. His criminal history included some 60 dishonesty convictions, spanning 25 years. The pre-sentence report noted he was “of high risk of re-offending due to the nature and frequency of his offending”. No criticism was made of that uplift.

[45]      The Judge applied a discount of eight months (approximately 20 per cent) to reflect Mr Hohaia’s guilty pleas. The pleas were entered after the matter had proceeded to case review and pre-trial callover. Given Mr Hohaia’s history, the nature of the stolen property found in his possession, his selling stolen property at a pawn shop, his being in possession of stolen property so close to the burglaries and being in possession of the stolen vehicle and the key, the Police case was very strong. The discount of approximately 20 per cent was thus generous.

[46]      I have not been persuaded the sentence imposed in the District Court was manifestly excessive. The appeal is dismissed.

Solicitors:

Public Defence Service, Christchurch Raymond Donnelly & Co., Christchurch.