Katene v R - [2010] NZCA 394

IN THE COURT OF APPEAL OF NEW ZEALAND
CA268/2010
[2010] NZCA 394

BETWEENHAREOPA LEO KATENE

Appellant

ANDTHE QUEEN

Respondent

CA308/2010
AND BETWEEN ERIA KIRA KATENE

Appellant

ANDTHE QUEEN

Respondent

Hearing:14 July 2010

Court:Hammond, Chisholm and Andrews JJ
Counsel:A M M Schulze for Appellant Hareopa Katene

J Bergseng for Appellant Eria Katene
M D Downs for Crown

Judgment:27 August 2010 at 10 am

JUDGMENT OF THE COURT

The appeals of both appellants against sentence are dismissed.
REASONS OF THE COURT
(Given by Andrews J)
Introduction
[1]        Hareopa Katene and Eria Katene have each appealed against the sentences imposed on them in the High Court at Rotorua on 23 April 2010.[1] Both say that the sentencing Judge, Venning J, adopted a starting point that was too high. In addition, Hareopa Katene says the Judge failed to give proper consideration to s 85 of the Sentencing Act 2002 (totality) and Eria Katene says that the Judge failed to give sufficient discount for personal factors favourable to him.
Background
[1]      R v Katene HC Rotorua CRI 2008-063-4495, 23 April 2010.
[2]        The appellants are father (Hareopa Katene) and son (Eria Katene). The charges against them arose out of a dispute between their family and another family (the Tuhoros), who are related. The dispute escalated to the stage that by late September 2008 there were exchanges of abusive text and telephone messages between the appellants and Shannon Tuhoro (who is Eria Katene’s cousin).
[3]        Early in the afternoon of 27 September 2008 there was a stand-off between Eria Katene and Shannon Tuhoro in Rotorua. At about 3:00 pm that day Hareopa Katene went to the Tuhoros’ property where Shannon was. He told the others there to go out for the afternoon. When they returned later he told them to leave. At about 7:30 pm Shannon Tuhoro’s father, Alec Tuhoro, telephoned Hareopa Katene to try to resolve matters. There was an abusive exchange culminating in Hareopa Katene telling Alec Tuhoro he was coming to shoot him and his son, and Alec Tuhoro saying “bring it on”.
[4]        Hareopa Katene and Eria Katene then drove in separate vehicles to the Tuhoro property. Eria Katene was accompanied by three friends. Both Hareopa and Eria Katene took firearms with them: Hareopa Katene had a .22 rifle and ammunition, Eria Katene had a .22 rifle and a .308 rifle, with ammunition for both, together with other weapons.
[5]        As he approached the Tuhoro property, Hareopa Katene stopped, loaded the .22 rifle, pointed it out the window, and drove forward. When he reached the property he fired the firearm in the general direction of the property. Alec Tuhoro was waiting in the driveway. He drove his vehicle towards Mr Katene and rammed into it. Hareopa Katene then fired the rifle again, this time towards Mr Tuhoro, but did not hit him or his vehicle. Eria Katene then fired his .308 at Alec Tuhoro’s vehicle in an attempt to immobilise it, hitting the engine area. Shannon Tuhoro was waiting at the other…

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 Katene v R

Details

AGLC: Katene v R [2010] NZCA 394
Case: [2010] NZCA 394
Decision Date: 27 August 2010

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard the appeals of Hareopa Katene and Eria Katene against their sentences imposed in the High Court at Rotorua. Both appellants argued that the sentencing Judge, Venning J, had adopted a starting point that was too high and that the Judge had failed to adequately consider certain factors in their sentencing. Hareopa Katene argued that the Judge did not give proper consideration to the principle of totality as set out in s 85 of the Sentencing Act 2002, while Eria Katene argued that the Judge failed to give sufficient discount for personal factors favourable to him.

The Court of Appeal found that the Judge had not erred in adopting the starting points for either appellant. The Court found that the starting point of five years imprisonment for Hareopa Katene was appropriate, given the seriousness of his offending, which involved a degree of planning and was carried out by the principal offender. The Court also found that the starting point of three years six months imprisonment for Eria Katene was appropriate, given that he was not the principal offender but had actively participated in the offending. The Court found that the Judge had given appropriate consideration to the personal circumstances of both appellants and had applied an appropriate discount for those factors. The Court concluded that the Judge had followed the correct sentencing process and that the sentences arrived at were appropriate for the offending committed by both appellants.

The appeals against sentence were dismissed.

Orders