Hotu v Police - [2013] NZHC 229

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000244 [2013] NZHC 229

HONE HOTU

v

NEW ZEALAND POLICE

Hearing: 18 February 2013

Counsel: A Rasheed for the Appellant
K Snelgar for the Respondent

Judgment: 18 February 2013

JUDGMENT OF WOOLFORD J

Solicitors:

A a Rasheed, Auckland Defence Chambers, PO Box 97-057, Manukau City, Auckland. Crown Solicitor, Auckland.

HOTU V POLICE HC AK CRI-2012-404-000244 [18 February 2013]

Introduction

[1] On 9 July 2012, Mr Hone Hotu, the appellant, pleaded guilty and was sentenced to a total of two years four months’ imprisonment on the following charges in the District Court:1

Offence Section / Act Maximum penalty

2 x Common assault Summary Offences

Act 1981, s 9

6 months’ imprisonment,

$4000 fine

Threatening to kill Crimes Act 1961, s

306(1)(a)

7 years’ imprisonment

Male assaults female Crimes Act 1961, s

194(b)

2 years’ imprisonment

Assault with a weapon (knife) Crimes Act 1961, s

202C

5 years’ imprisonment

Breach of a protection order Domestic Violence

Act 1995, ss

19(1)(a) and

49(1)(a)

2 years’ imprisonment

2 x breach of conditions of supervision

Sentencing Act

2002, s 70(a)

3 months’ imprisonment,

$1000 fine.

Facts

[2] On 16 October 2011, Mr Hotu saw a 15 year old youth walking through a reserve near Mr Hotu’s address. Mr Hotu objected to the youth wearing a red t-shirt and approached him and asked him to remove the t-shirt. As the youth complied, Mr Hotu punched him several times, causing him to fall on the ground. Mr Hotu then kicked the youth while he was on the ground. The youth received swelling above his right eye and scratches on his back. This gave rise to one of the common assault charges.

[3] The rest of the offending occurred on 9 December 2011. On 8 March 2010 a protection order had been issued against Mr Hotu, which named Mr Hotu’s mother as the protected person.

[4] On Friday 9 December 2011, Mr Hotu, his mother (who was four and half months’ pregnant at the time) and his partner (who was 8 months’ pregnant at the time), were at an address in Manurewa along with two other family members. Mr Hotu was drinking alcohol with his mother and the two other family members.

[5] Mr Hotu walked into a bedroom where his partner was lying on the bed. He began yelling and swearing at her. Mr Hotu then punched his partner a number of times in the head and face. He also threw a cellphone and bag at his partner, both of which missed.

[6] Mr Hotu’s partner left the room and went outside. Mr Hotu walked into the kitchen, uplifted a knife and went outside to his partner. He placed the knife under her throat and said “I’ll kill you and your family” several times. His partner pushed Mr Hotu away.

[7] Mr Hotu’s partner then went inside to the lounge. Mr Hotu walked up to her and punched her in the head three times. She then sat on…

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 Hotu v Police

Details

AGLC: Hotu v Police [2013] NZHC 229
Case: [2013] NZHC 229
Decision Date: 18 February 2013

CaseChat Overview and Summary

Hone Hotu appealed against his sentence of two years four months' imprisonment, imposed for various charges including assault with a weapon, threatening to kill, and breaches of protection orders. The appellant's legal team argued that the sentence was manifestly excessive and that the sentencing judge failed to consider all necessary evidence. The court examined whether the sentence was clearly excessive or inappropriate, and if substantial facts relating to the offender's character or personal history were not before the court at the time of sentencing.

The court assessed the sentence by first examining the lead offence of assault with a weapon. It found that the appropriate starting point for this charge was 15 months' imprisonment, and an uplift of 7 months was appropriate to reflect the totality of the offending. The court also considered the appellant's personal history, noting his previous convictions for violence and his age at the time of the offending. The court decided to uplift the sentence by 6 months to account for this history. The appellant's guilty plea warranted a discount of around 15 per cent, resulting in a sentence of 24 months' imprisonment. Finally, the court considered the appellant's youth and psychological history, and decided to reduce the sentence by a further 10 per cent, bringing the total sentence to 22 months' imprisonment.

The court concluded that the sentence imposed by the District Court was manifestly excessive, as it was 21 per cent higher than the sentence the High Court determined was appropriate. The appeal was therefore allowed, and the original sentence of two years three months' imprisonment for the lead offence of assault with a weapon was quashed and replaced with a sentence of 21 months' imprisonment. The total sentence was reduced to 22 months' imprisonment.

Orders