Hopa v R - [2023] NZCA 320

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA51/2023
[2023] NZCA 320

BETWEEN	MATIU HOPA Appellant
AND	THE KING Respondent

Hearing:	11 May 2023
Court:	Miller, Woolford and Cull JJ
Counsel:	S Brickell for Appellant FMT Culliney for Respondent
Judgment:	24 July 2023 at 11.00 am

JUDGMENT OF THE COURT

The appeal is dismissed.

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REASONS OF THE COURT

(Given by Miller J)

Mr Hopa appeals his sentence of two years and four months’ imprisonment for strangulation, breach of a protection order and male assaults female.[1] He says that the starting point adopted by the trial Judge was too high and the uplift for a breach of protection order was too large. He says that he ought to have been sentenced to 22 months’ imprisonment.
[1]R v Hopa [2022] NZDC 25339 [Sentencing notes].
The victim was his former partner. She described the relationship as controlling on his part. She obtained a protection order in 2019.
On 27 April 2021 there was a hearing in the Family Court to do with the care of the couple’s children. The victim travelled to Auckland for the hearing and stayed overnight with the appellant at his parents’ address. The appellant drove the victim to and from the Family Court in the victim’s car. After the hearing the two of them returned to Mr Hopa’s parents’ home, where they sat outside in the car and consumed alcohol. After a time the appellant took the keys from the ignition and they went inside.
Once there, he pushed her into a bedroom and assaulted her, punching her in the face and head multiple times. At some point during the assault she was strangled. She described feeling light-headed and then unable to breathe. The offending stopped after she managed to call out for their son, who came into the room. It appears Mr Hopa’s parents called the police. Police did not speak to the victim at that time because she had hidden under the house, where she remained for some hours before walking to another address for help.
Mr Hopa went to trial, where he was acquitted or discharged on two charges of male assaults female. He pleaded guilty to one charge of male assaults female and the charge of breaching a protection order by physically abusing the victim. He was found guilty by the jury on a charge of strangulation.
Judge Bergseng adopted a starting point of two years and six months’ imprisonment for the strangulation charge.[2] He uplifted that by eight months for the charges of male assaults female and breach of the protection order.[3] There was a further uplift of four months because the appellant was on bail at the time.[4] Discounts were given for cultural deprivation (20 per cent), efforts at rehabilitation (five per cent), and time spent on electronically monitored bail (three months).[5] The end sentence of two years and four months’ imprisonment was imposed on the strangulation charge, with sentences of eight months for breach…

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 Hopa v R

Details

AGLC: Hopa v R [2023] NZCA 320
Case: [2023] NZCA 320
Decision Date: 24 July 2023 at 11.00 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Matiu Hopa appealed against his sentence of two years and four months' imprisonment for strangulation, breach of a protection order, and male assaults female. The appeal was heard on 11 May 2023 by Miller, Woolford, and Cull JJ, and the judgment was delivered on 24 July 2023. Counsel for the appellant was S Brickell, and for the respondent, FMT Culliney. The appeal was dismissed by the Court. The appellant argued that the starting point for his strangulation charge was too high and that the uplift for the breach of protection order was excessive. He contended that he should have been sentenced to 22 months' imprisonment. The trial judge had adopted a starting point of two years and six months' imprisonment for the strangulation charge, uplifted by eight months for the charges of male assaults female and breach of the protection order, with an additional four months for being on bail at the time. Discounts were given for cultural deprivation, efforts at rehabilitation, and time spent on electronically monitored bail. The appellant argued that the trial judge was incorrect in identifying two aggravating factors: aggravated violence and enduring harm to the victim. The Court found that the trial judge was entitled to find that the strangulation was aggravated and that the victim was dazed, lightheaded, unable to breathe, and may have been close to unconsciousness, indicating that the strangulation lasted for some time. The Court also found that the trial judge was not wrong to identify enduring harm to the victim as a factor, as its impact on the victim was a question of judgment. The Court found that the starting point of two years and six months was available and that the uplift of eight months for breach of a protection order and male assaults female was also available.

The Court of Appeal found that the trial judge's sentence was not manifestly excessive and dismissed the appeal. The Court accepted the Crown's submission that the violence was not aggravated to a high degree but was open to the judge to find it was aggravated and to infer from the victim’s evidence that she was dazed, lightheaded, unable to breathe, and may have been close to unconsciousness that the strangulation lasted for some time. The Court also found that the trial judge was not wrong to identify enduring harm to the victim as a factor, as its impact on the victim was a question of judgment. The Court accepted the Crown's submission that the strangulation was a continuation of the appellant's attempts to control the victim. The Court found that the starting point of two years and six months was available and that the uplift of eight months for breach of a protection order and male assaults female was also available. The Court accepted that all of this offending involved a single incident, but it was not persuaded that the uplift made the sentence manifestly excessive.

Orders