Hotene v Police - [2014] NZHC 2081

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-485-62 [2014] NZHC 2081

BETWEEN
WILLIAM JOHN HOTENE

Plaintiff

AND

NEW ZEALAND POLICE Defendant

Hearing: 26 August 2014

Appearances:

S J Taylor for appellant
K S Grau for respondent

Judgment:

29 August 2014

JUDGMENT OF CLIFFORD J

Introduction

[1] The appellant, William Hotene, pleaded guilty to two charges of burglary and was sentenced by Judge Ellis in the District Court at Hutt Valley to three years and five months’ imprisonment.1

[2] Mr Hotene now appeals against that sentence as being manifestly excessive. Mr Hotene says that the starting point of five years identified by the Judge was too high and that insufficient credit was given to him for the assistance he provided to the police both before and after sentencing. Mr Hotene also says that reparation is now available for his victims, which should also result in a reduction of sentence.

Mr Hotene’s offending – the facts

[3] The two burglaries occurred on 20 April and 19 May 2014.

1 Police v Hotene DC Hutt Valley CRI-2014-096-001495, 25 June 2014.

HOTENE v POLICE [2014] NZHC 2081 [29 August 2014]

[4] On 20 April 2014, in the early afternoon, Mr Hotene with two associates went to the victim’s address in a car. No-one was home. Mr Hotene and one of his associates walked up the stairs to the victim’s address and pulled open French doors, breaking the lock in the process. Mr Hotene and his associates removed a large
amount of property including:

a 42 inch Toshiba flat screen TV and remote;

a Toshiba satellite notebook and charger;

a PS3 games console, two controllers, cables and one game;

associated cabling and adaptors;

a black laptop bag containing study notes;

a Panasonic camera; and

$100 cash.

[5] Mr Hotene placed the items on the rear seat of a white Honda motor vehicle before getting back into the vehicle and leaving with his associates.

[6] These actions were recorded on CCTV footage. Police were unable to identify Mr Hotene’s two associates.

[7] Reparation of some $3,300 was sought, reflecting the value of the items stolen.

[8] On 19 May 2014 Mr Hotene went to an address in Stokes Valley, Lower Hutt. He went to the side and rear doors of the property, knocking loudly to ascertain if anyone was at home. When he got no answer he entered a room under the house via a closed unlocked door. He spent some time there before exiting.

[9] The owner arrived home to find Mr Hotene exiting the downstairs room. The police were called and Mr Hotene was subsequently arrested.

[10] Mr Hotene has a large number of previous convictions, including 34 for burglary and 64 for dishonesty. Until these events, Mr Hotene’s most recent conviction for burglary dated back to events in late 2006 and early 2007. In the interim, Mr Hotene has a number of further convictions, including four for theft, one for shoplifting and two for receiving.

The challenged sentencing decision

[11] For…

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 Hotene v Police

Details

AGLC: Hotene v Police [2014] NZHC 2081
Case: [2014] NZHC 2081
Decision Date: 29 August 2014

CaseChat Overview and Summary

William Hotene appeals against his sentence of three years and five months’ imprisonment imposed by Judge Ellis in the Hutt Valley District Court. Hotene pleaded guilty to two charges of burglary and argues that the sentence is manifestly excessive, particularly in relation to the starting point of five years and the lack of credit given for his cooperation with the police and his offer of reparation. Hotene's offending involved two burglaries of residential properties in April and May 2014, where he stole various items including a television, a laptop, and a camera. Hotene has a history of 35 previous burglary convictions and numerous other dishonesty-related convictions.

The court must determine whether the sentence is manifestly excessive and whether the starting point and mitigating factors were appropriately considered. The appeal hinges on the appropriateness of the starting point sentence, the effect of Hotene’s cooperation with the police post-sentencing, and the potential for reparation. The Crown argues that the sentence was within range, given Hotene’s criminal history, and that the mitigating factors adequately accounted for in the original sentence.

In assessing the sentence, the court considers that the starting point for the first burglary should be 18 months, given the minor nature of the theft and lack of confrontation. For the second burglary, an uplift of nine months is appropriate. Considering Hotene’s extensive history of burglary, an uplift of 12 months is also appropriate. The court finds that the starting point of five years was manifestly excessive and instead determines an appropriate starting point of three years and three months. After accounting for mitigating factors, including Hotene’s guilty plea and offer of reparation, the court reduces the sentence to two years and two months. The appeal is allowed, and the original sentence is substituted with the reduced term of imprisonment.

Orders