Hoko v R - [2017] NZCA 484

IN THE COURT OF APPEAL OF NEW ZEALAND

CA306/2017
[2017] NZCA 484

BETWEEN	RICHARD JOHN HOKO Appellant
AND	THE QUEEN Respondent

Hearing:	5 October 2017
Court:	Asher, Brown and Collins JJ
Counsel:	S K Ellis for Appellant E J Hoskin for Respondent
Judgment:	27 October 2017 at 10 am

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed.
BThe sentence of eight years’ imprisonment imposed on the charges of aggravated robbery and kidnapping is quashed and a sentence of six years and six months’ imprisonment is imposed.
CThe minimum period of imprisonment of 60 per cent remains in place, which in the circumstances is three years and 10 months’ imprisonment.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

[1]Mr Hoko appeals his sentence of eight years’ imprisonment imposed by Judge McDonald in the District Court at Whangārei on 24 May 2017.[1] The sentence was imposed in relation to one charge of aggravated robbery[2] and one charge of kidnapping.[3] Mr Hoko was convicted of these charges following a jury trial before Judge Thorburn, who was not available to sentence Mr Hoko.
[1]R v Hoko [2017] NZDC 10838.
[2]Crimes Act 1961, s 235(c); maximum penalty 14 years’ imprisonment.
[3]Section 209(b); maximum penalty 14 years’ imprisonment.
[2]We have concluded the sentence imposed was manifestly excessive. We therefore allow the appeal and substitute the sentence of eight years’ imprisonment with one of six years and six months’ imprisonment. The minimum period of imprisonment (MPI) of 60 per cent is to remain in place.

Background

[3]At about 8.30 am on 18 August 2014 the complainant was parking her car in central Whangārei. After she parked her car, Mr Hoko, whom she did not know, got into the front passenger seat. He was wearing a hooded sweatshirt and dark sunglasses. He had a knife with a 10 cm blade which he put to the side of the complainant’s stomach and directed her to drive away. When she asked if he was planning to hurt her Mr Hoko said that he would not do so if she did as she was told.
[4]Mr Hoko directed the complainant to park her car and climb into the passenger seat. He used her cell phone cord to tie her hands to the car handbrake before rifling through her handbag. While doing this Mr Hoko told the victim she was “sexy”, which added to her fear and anxiety as to what he was going to do to her. Mr Hoko found the complainant’s EFTPOS card and demanded she give him the PIN number. He then drove to an ATM and used the complainant’s card to withdraw $120.
[5]Mr Hoko then drove the victim back to the Whangārei central business district, cut the straps from her handbag and used those straps to tie the complainant’s hand to the gearshift. He then told the complainant that she had to wait in her vehicle until he had crossed the road and that if she left earlier he would cut her…

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 R

Details

AGLC: Hoko v R [2017] NZCA 484
Case: [2017] NZCA 484
Decision Date: 27 October 2017 at 10 am

CaseChat Overview and Summary

Richard John Hoko appeals against the sentence of eight years’ imprisonment imposed by Judge McDonald in the District Court at Whangārei on 24 May 2017, for charges of aggravated robbery and kidnapping. The appeal is heard by Asher, Brown and Collins JJ. The appeal against sentence is allowed, and the sentence is reduced to six years and six months’ imprisonment with a minimum period of imprisonment (MPI) of 60 per cent remaining in place, which is three years and 10 months’ imprisonment. The court determined that the original sentence was manifestly excessive.

The legal issues the court had to decide were whether the starting point for the sentence was correctly set, whether the uplift was justified, and whether the MPI was appropriate. The court found that the starting point for the aggravated robbery should have been no more than five years’ imprisonment, and for the kidnapping charge, an additional year should be added. The court also found that the uplift of 18 months’ imprisonment was excessive, and a modest uplift of six months’ imprisonment was appropriate. The court agreed with the imposition of an MPI of 60 per cent, which was three years and 10 months’ imprisonment on the new sentence.

The reasoning of the court was based on the comparison of the aggravating features of the case with other similar cases, taking into account the severe, long-term impact on the complainant. The court considered the starting point and uplift to be excessive, and the imposition of an MPI to be appropriate in order to hold Mr Hoko accountable for the harm done, denounce his conduct, deter him and others from committing similar offences, and protect the community from him. The court concluded that a sentence of six years and six months’ imprisonment with an MPI of three years and ten months’ imprisonment fulfilled the purposes and principles of the Sentencing Act 2002, and was the least restrictive sentence reasonably available in the circumstances of this case.

Orders