Hohua v The the King - [2022] NZCA 550

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA733/2021
[2022] NZCA 550

BETWEEN	DALLAS TIHINI FRASER HOHUA Appellant
AND	THE KING Respondent

Hearing:	16 June 2022
Court:	Courtney, Mander and Fitzgerald JJ
Counsel:	J N Olsen for Appellant B J Thompson for Respondent
Judgment:	16 November 2022 at 11.30 am

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed.
BThe sentence of six years and three months’ imprisonment is set aside and substituted with a sentence of five years and three months’ imprisonment.
CThe minimum period of imprisonment of three years is set aside and substituted with a minimum period of imprisonment of two years.
DThe suppression order made by Muir J on 16 December 2021 is set aside.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Introduction

Lani Paul died of a single stab wound inflicted by Dallas Hohua during an altercation at the end of an evening of drinking at Mr Hohua’s home. Mr Hohua was charged with Mr Paul’s murder. At trial he asserted self-defence. The jury returned a manslaughter verdict. Muir J imposed a sentence of six years and three months’ imprisonment with a minimum period of imprisonment (MPI) of three years.
Mr Hohua appeals his sentence on the ground that the sentence is manifestly excessive as a result of error by the Judge in:
(a)taking too high a starting point; and
(b)failing to give adequate weight to Mr Hohua’s personal background.

The offending

There were variations in the witnesses’ accounts of events in the hours before Mr Paul’s death. The following account is largely drawn from the Judge’s sentencing notes; the Judge had noted that the account he recorded was based on a combination of the Crown summary of facts, with the Judge essentially agreed, and the Judge’s own findings where required.
Mr Hohua, who was 57 years old, and Mr Paul, then aged 29, were known to one another. At about 5 pm on 23 October 2020, Mr Paul, his partner and several of their associates went to Mr Hohua’s address. Mr Hohua was not present but his partner, Ms Delamare was there, with the couple’s young son and other whānau. Many of the group that arrived had been drinking. Mr Hohua arrived a short time later. He, too, had been drinking.
At about 11 pm, after an argument began between Mr Paul and his partner, Mr Hohua and Ms Delamare decided to close the party down. What happened next was described by the Judge:[1]
[5] … You told everyone to get off your property, including Mr Paul and his associate known as “Stretch”.
[6] Mr Paul and his friends did not want to leave. You were determined that they do so and began pushing them out onto the driveway adjacent to the shed in which the party had occurred. A fight then broke out between you and Mr Paul during which you punched him in the face several times. You also took punches from…

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: [2022] NZCA 550
Decision Date: 16 November 2022 at 11.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Dallas Tihini Fraser Hohua appealed against his sentence for the manslaughter of Lani Paul, who died from a stab wound inflicted by Mr Hohua during an altercation at a party at Mr Hohua's home. The jury had returned a verdict of manslaughter, rejecting Mr Hohua's claim of self-defence. The High Court judge had imposed a sentence of six years and three months' imprisonment with a minimum period of imprisonment (MPI) of three years. The appeal was against the sentence, contending that it was manifestly excessive as a result of error by the Judge in taking too high a starting point and failing to give adequate weight to Mr Hohua’s personal background. The Crown argued that the sentence was appropriate. The Court of Appeal allowed the appeal against sentence, setting aside the sentence of six years and three months' imprisonment and substituting it with a sentence of five years and three months' imprisonment. The Court set aside the MPI of three years and substituted it with an MPI of two years. The suppression order made by the High Court judge was also set aside.

The starting point for sentencing was the appropriate issue. The Judge had taken an orthodox approach by considering the aggravating and mitigating factors of the offending by reference to relevant case law and then considering comparable cases. The Judge identified three aggravating features: extreme violence, serious injury and the use of a weapon. There were three mitigating features: Mr Paul’s provocative conduct, Mr Hohua’s intoxication, and Mr Hohua’s personal circumstances and remorse. The Judge allowed a discount of 15 per cent for Mr Hohua’s personal circumstances and five per cent for remorse, resulting in an end sentence of six years and three months' imprisonment. The Judge imposed an MPI of three years. The Crown supported the starting point taken by the Judge. Mr Hohua’s counsel submitted that the Judge erred in placing the offending in the upper part of band two. Although he accepted that band two would ordinarily have been appropriate, the mitigating factors — Mr Paul’s own behaviour and the fact that Mr Hohua was acting defensively — ought to have brought the offending into band one, with a range of starting points between three and six years’ imprisonment. The Court of Appeal found that the Judge’s starting point of seven years and six months was slightly too high to reflect the circumstances of the offending, including Mr Paul’s provocative conduct. The Court considered that seven years and three months would have properly reflected all the circumstances of the offending. The Court also found that the discount for personal circumstances should have been 25 per cent rather than 15 per cent. The Court of Appeal concluded that the appropriate starting point was seven years and three months' imprisonment. There was no challenge to the uplift of three months. The adjusted starting point should therefore have been seven years and six months. From that, a 30 per cent discount (25 per cent for personal circumstances and five per cent for remorse) resulted in an end sentence of five years and three months' imprisonment. The Court of Appeal thought that an MPI of two years was adequate for the purpose of community protection.

Orders