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 respondentJudgment:
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…
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- AGLC
- Hotene v Police [2014] NZHC 2081
- Case
- [2014] NZHC 2081
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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