Hoko v Police - [2013] NZHC 2483

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000257

CRI-2013-404-000259 [2013] NZHC 2483

BETWEEN
DON HOKO

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 23 September 2013

Appearances:

MB Mortimer for Appellant
JB Hamlin for Respondent

Judgment:

23 September 2013

JUDGMENT OF WOOLFORD J

Counsel: M Mortimer, Guardian Chambers, Auckland

Solicitors: Meredith Connell (B Hamlin), Crown Solicitor, Auckland

HOKO v POLICE [2013] NZHC 2483 [23 September 2013]

Introduction

[1] The appellant appeals against a sentence of 18 months imprisonment imposed on four property related offences to which he had pleaded guilty, as being manifestly excessive.

Factual background

[2] On 10 March 2013, the appellant was stopped by Police while driving a stolen Mazda motor vehicle valued at $10,000. The appellant had no driver’s licence and had previously been prohibited from driving until he had obtained his licence. At the time, the appellant was on bail on a charge of unlawful interference with a motor vehicle committed three days previously.

[3] When he was stopped, Police found a pipe wrench and two screwdrivers, tools commonly used in the unlawful conversion of motor vehicles, in his backpack. Also located in the appellant’s backpack was a Go Pro camera, which had been stolen from a motor vehicle three days earlier. Located on the front passenger seat was another bag, which had been stolen from another motor vehicle the day before.
The bag contained miscellaneous geocaching1 items.

[4] The appellant appeared in the Auckland District Court on 11 March 2013. After being remanded in custody, the appellant pleaded guilty on 27 March 2013, to one charge of unlawfully taking a motor vehicle, one charge of unlawfully interfering with a motor vehicle, one charge of receiving stolen property, which encapsulated the two separate thefts of property from motor vehicles, one charge of possession of instruments for conversion and one charge of driving when he had been forbidden to do so.

District Court decision

[5] On 6 May 2013, after the Court had received a pre-sentence report, the appellant was sentenced to 18 months imprisonment to be followed by release
conditions for six months. In his sentencing decision, Judge Gittos noted at the

1 Geocaching is a treasure hunting game where you use a GPS device to hide and seek containers with other participants in the activity.

outset that the appellant must have only just been released from prison and commented on his 11 pages of previous convictions, mostly for property related offences. Judge Gittos also noted the probation officer’s recommendation of a further term of imprisonment. The Judge accepted that it was clear that drug abuse was a main driver of the appellant’s offending. He referred to counsel’s submissions that the appellant should be sentenced to intensive supervision, but was of the view that it was quite unlikely that the appellant would respond to a sentence of intensive supervision.

[6] Judge Gittos then commented that the community was entitled to expect a sentence that properly reflected the gravity of the appellant’s offending and deterred and…

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 Hoko v Police

Details

AGLC: Hoko v Police [2013] NZHC 2483
Case: [2013] NZHC 2483
Decision Date: 23 September 2013

CaseChat Overview and Summary

In the High Court of New Zealand, Don Hoko, the appellant, appealed against the sentence of 18 months imprisonment imposed on him by the Auckland District Court for four property-related offences to which he had pleaded guilty. The court had to determine if the sentence was manifestly excessive. The appellant was found with a stolen motor vehicle, a Go Pro camera, and other items stolen from motor vehicles. He pleaded guilty to unlawfully taking a motor vehicle, unlawfully interfering with a motor vehicle, receiving stolen property, possessing instruments for conversion, and driving when he had been forbidden to do so. The District Court Judge had sentenced the appellant to 18 months imprisonment, followed by six months of release conditions. The High Court Judge found that there were difficulties with the approach adopted by the District Court Judge in determining the sentence. The High Court Judge found that the District Court Judge did not adopt a starting point for the lead offence, did not identify an uplift to take into account the number of offences upon which the appellant was being sentenced, did not identify an uplift to reflect the appellant’s extensive previous convictions, and did not specify the discount which was available for the appellant’s guilty pleas and remorse. The High Court Judge also found that the District Court Judge imposed a sentence in excess of the maximum permitted by law for at least one of the offences. The High Court Judge determined that a sentencing Judge should always guard against the tendency to increase the starting point in the case of an offender with a long list of previous convictions. The High Court Judge concluded that the starting point for a single charge of unlawful taking, if imprisonment is the appropriate sentence, is a term of nine to 12 months imprisonment. The High Court Judge also determined that an uplift to take into account the number of offences upon which the appellant was being sentenced should be no more than two months imprisonment, and a further uplift of six months imprisonment is appropriate for the appellant’s extensive list of previous convictions. The High Court Judge accordingly allowed the appeal and sentenced the appellant to 14 months imprisonment on the charge of unlawfully taking a motor vehicle, together with the six months post-release conditions recommended in the pre-sentence report, three months imprisonment on the charge of unlawfully interfering with a motor vehicle, two months imprisonment on the charge of receiving, and one month’s imprisonment on the charge of possession of instruments, all of which are concurrent. The sentence of six months disqualification on the charge of driving while forbidden stands.

Orders