Hohua v Police - [2018] NZHC 3175

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2018-485-70

[2018] NZHC 3175

BETWEEN
DAVID HARLEY HOHUA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 27 November 2018

Counsel:

B A Crowley and Z Meehan for appellant M A Shaw for respondent

Judgment:

4 December 2018

RESERVED JUDGMENT OF DOBSON J

[1] On 20 August 2018, the appellant (Mr Hohua) was sentenced in the District Court at Hutt Valley on a range of convictions for burglary, receiving, failing to answer bail, assault with a weapon and male assaults female, breaches of intensive supervision, possession of cannabis and a drug-related utensil, dangerous driving, aggravated failing to stop and driving whilst forbidden.

[2] The end sentence was 27 months’ imprisonment. Mr Hohua has appealed against the sentence on the ground that the Judge adopted too high a starting point for one group of domestic violence offences, which resulted in the end sentence being manifestly excessive.

HOHUA v POLICE [2018] NZHC 3175 [4 December 2018]

The circumstances of the offending

[3] In November 2017, Mr Hohua was on electronically monitored (EM) bail for dishonesty offending for which he had earlier been charged and remanded. He was also serving a community detention sentence. In the course of an argument, Mr Hohua’s partner threatened to pull out the electric cord of the phone unit that monitored his EM bail device. She then duly carried out that threat.

[4] Mr Hohua’s response was to throw the GPS phone unit related to his EM bracelet at his partner. The phone bounced on her head and hit the stomach of a second victim, his partner’s sister, who was pregnant. Mr Hohua then grabbed his partner and dragged her by the hair, pulling her hair back violently so she was on her knees, and repeatedly punched her in the head. In the course of this attack, when drawing his arm back he elbowed the second victim in the stomach. He then kicked his partner twice in the head, resulting in a split to the back of her head. The second victim was referred to and monitored at a maternity ward.

[5] The domestic violence resulted in two charges of assault with a weapon. On arrest, Mr Hohua was remanded in custody, with the result that the community detention sentence was suspended. He was subsequently granted bail, enabling him to resume the community detention sentence.

[6] One of the assault with a weapon charges was subsequently amended to male assaults female. In February 2018, Mr Hohua entered guilty pleas to all of his outstanding charges.

[7] For reasons not attributable to Mr Hohua, his sentencing on these charges was delayed until 20 August 2018. By then, he had been charged on 6 August 2018 with further domestic violence offending, plus driving offences and possession of a class C drug and utensils. At the time of the sentencing on 20 August 2018 to which this appeal relates, he had pleaded not guilty to…

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.

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Details

Case: [2018] NZHC 3175
Decision Date: 4 December 2018

CaseChat Overview and Summary

The appeal in Hohua v Police was heard before the High Court of New Zealand, Wellington Registry. The appellant, Mr Hohua, appealed against his sentence of 27 months' imprisonment, arguing that the Judge's starting point for one group of domestic violence offences was too high, resulting in an end sentence that was manifestly excessive. The appellant was convicted of various charges, including burglary, receiving, failing to answer bail, assault with a weapon, male assaults female, breaches of intensive supervision, possession of cannabis and a drug-related utensil, dangerous driving, aggravated failing to stop, and driving while forbidden.

The legal issues the Court was required to decide were whether the Judge's starting point for the domestic violence charges was too high, and if so, what the appropriate starting point should be, and whether the appeal resulted in a sentence of short duration. The Court considered the arguments of both the appellant and the respondent, including the comparison of the seriousness of the domestic violence offending with other cases, and the application of the totality principle.

The Court found that the Judge's starting point for the domestic violence charges was indeed too high and should be reduced to 16 months' imprisonment. The Court accepted that the offending in the case at hand was not materially more serious than in other cases cited by the appellant's counsel. The Court also determined that the same extent of reduction for totality should be maintained, reducing the end sentence from 27 months to 25 months' imprisonment. However, the Court concluded that this outcome did not meet the aim of achieving a sentence of short duration, and that a reduction of two months in a sentence of 27 months may be vulnerable to criticism as tinkering with a carefully constructed sentencing exercise.

In conclusion, the Court allowed the appeal to the extent of reducing the component of the sentence for the domestic violence from 18 to 16 months' imprisonment, and substituted the sentence of two years and three months' imprisonment for assault with a weapon with a sentence of two years and one month's imprisonment. The sentences for all the remaining convictions remained unchanged and were to be served concurrently.

Orders