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…

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 Hohaia v The Queen

Details

AGLC: Hohaia v The Queen [2020] NZHC 1795
Case: [2020] NZHC 1795
Decision Date: 24 July 2020

CaseChat Overview and Summary

The appellant, Mr Hohaia, appealed the sentence imposed on him by the District Court for receiving stolen property and unlawfully taking a motor vehicle. The legal issues before the court were whether the starting point for the receiving charges was too high, and whether the sentences should have been concurrent or adjusted for totality. The Crown argued that the starting point was appropriate and that there was no error in imposing cumulative sentences or not providing a discount for totality.

The court considered that the number of burglaries from which Mr Hohaia had received property, and the closeness in time between his being in possession of the stolen property and the burglaries, strongly indicated he had a close connection to whoever had been involved in the burglaries. The court also found that the unlawful taking of the motor vehicle added significantly to the seriousness of the offending and increased the need for a deterrent sentence. The court concluded that the starting point for all offending was within range and that there was no error in imposing cumulative sentences or not providing a discount for totality.

The appeal was dismissed, and the sentence imposed by the District Court was upheld.

Orders