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 side of the driveway.  When the Katenes’ vehicles stopped he attacked the passenger sides of the vehicles.  Eria Katene and his friends all ran away, without taking any further action.

[6]        Hareopa Katene drove around to the back of the property, and continued to fire in the direction of Alec and Shannon Tuhoro.  There may have been some return fire, but no-one was hit or injured by any of the shots.  Alec Tuhoro then got into Eria Katene’s abandoned vehicle and twice drove it at Hareopa Katene.  As a result, Hareopa Katene was seriously injured.

[7]        Hareopa Katene pleaded guilty to three charges: discharging a firearm with intent to cause grievous bodily harm,[2] discharging a firearm with reckless disregard for the safety of others,[3] and unlawful possession of a firearm.[4]  Eria Katene pleaded guilty to two charges: discharging a firearm with intent to cause grievous bodily harm, and unlawful possession of a firearm.  The Judge noted in his sentencing notes that although Eria Katene had pleaded guilty to the charge under s 198(1), the Crown accepted that he did not intend to cause grievous bodily harm to anyone when he fired the .308.[5]  Rather, he intended to immobilise the car.  However, the Judge then noted that Eria Katene was guilty of the s 198(1) charge as a party to his father’s offending.  The fact that he was prepared to use the .308 was an aggravating factor of his involvement in his father’s offending.

Sentencing

[2]      Crimes Act 1961, s 198(1).

[3]      Section 198(2).

[4]      Arms Act 1983, s 45(1).

[5] At [9].

[8]        The Judge noted that this was very serious offending.[6]  He then went on to set out the personal circumstances of each of the appellants.[7]

[6] At [12].

[7]      At [13]-[18].

[9]        The Judge noted that Hareopa Katene was 49 years old and had a significant number of previous convictions including convictions for violence.  He recorded that Hareopa Katene was serving a sentence of imprisonment for aggravated robbery and aggravated wounding, in respect of which charges he was on bail when he committed the current offences.  The Judge noted the factors identified as contributing to Hareopa Katene’s offending as being his propensity for violence, his association with individuals who supported his criminal activity, and his sense of self-justification in relation to his offending.[8]  The only positive note recorded was that Mr Katene had acknowledged his propensity for violence and indicated a willingness to take part in counselling to address it.

[8] At [14].

[10]       The Judge noted that at the age of 24 Eria Katene did not have any previous convictions and had been in a stable relationship for the past five years.[9]  Mr Katene had worked hard towards completing an engineering apprenticeship and had received positive references from his employer.  The Judge noted that Eria Katene had displayed remorse for his offending.[10]  He had been prepared to participate in restorative justice, which had been supported by Shannon Tuhoro, but Alec Tuhoro had declined to participate in it.  The Judge accepted that Eria Katene had become involved in the incident because he had felt he had to support his father.[11]  However, he had been an active supporter, who was both prepared to, and did, take an active role.  The Judge expressed regret that at Eria Katene’s age, and with what he had achieved, he had appeared in Court for sentencing.

[9] At [15].

[10] At [16].

[11] At [17].

[11]       The Judge then referred to the relevant purposes and principles of sentencing, and the victim impact reports as to the effect of the offending on the Tuhoro family.

[12]       The Judge then turned to consider the appropriate starting point.  He noted that there did not appear to be any cases where sentences had been imposed where s 198(1) of the Crimes Act was the principal offence.[12]  He considered the most relevant sentence comparison to be the case of R v Templeton,[13] in which the accused had been found guilty as parties under s 198(2) and of other firearms offences.  In that case a starting point of five years imprisonment had been adopted for the lead offender, and slightly reduced starting points for secondary parties.  The Judge noted that the Court of Appeal had upheld those starting points.

[12] At [25].

[13]      R v Templeton CA460/05, 6 July 2006.

[13]       For Hareopa Katene, the Judge adopted a starting point of five years imprisonment, taking into account his role as the principal offender, and the totality of his offending in the present case.  He then reduced that by six months, to take account of the conduct of the victims in the matter, to reach an adjusted starting point (before personal factors) of four years six months imprisonment.  He then applied an uplift of 12 months to take account of personal aggravating features, being Mr Katene’s serious and recent convictions for aggravated robbery and wounding, and the fact that the current offending had been committed while he was on bail for those charges.

[14]       For Eria Katene the Judge adopted a starting point of three years six months imprisonment, on the basis that his involvement was as a secondary party to support his father.  He then applied a discount of four months, to take account of the conduct of the victims, to reach an adjusted starting point of three years and two months, before taking account of personal factors.

[15]       At [33] and [34] the Judge considered personal circumstances for both appellants.

[16]       For Hareopa Katene, the Judge first allowed a discount of 10% in recognition of his guilty plea, which had come close to the start of the trial.  That would have led to a sentence of just under five years imprisonment.  However, the Judge allowed a further reduction, of approximately four months, to reach a final sentence of four years eight months imprisonment.  That reduction was to reflect the fact that Mr Katene was currently serving a sentence of seven years six months imprisonment, and that the sentence being imposed by the Judge was to be cumulative upon that sentence.  As the Judge noted, he accepted that he had applied an uplift for Mr Katene’s previous convictions and his offending whilst on bail, and the reduction was to avoid punishing him again and imposing a crushing sentence.

[17]       For Eria Katene, the Judge noted that he was entitled to a discount for his previous good behaviour, being the absence of any previous convictions and his having almost achieved a qualification.  The Judge also noted that he was, to a large degree, supported by Shannon Tuhoro and Shannon’s mother.  A discount of six months was allowed in respect of those matters, reducing the starting point to two years eight months.  The Judge then allowed a further discount for Mr Katene’s guilty plea to arrive at a final sentence of two years four months.  In the light of the end sentence of two years four months imprisonment, the Judge could not consider home detention.  He noted that the serious nature of the offending had led to a result where the end sentence exceeded two years imprisonment.

Hareopa Katene

Starting point

[18]       Mr Schulze submitted that the Judge’s starting point of five years imprisonment (before any adjustments) was too high.

[19]       The Judge referred to R v Dixon,[14] R v Templeton,[15] and R v Hines.[16]  In none of these cases was sentence imposed under s 198(1) as the lead offence.  Mr Schulze submitted that the facts of each of these cases were distinguishable from the present case, as all three involved ss 198(1) or 198(2) offending in public places.  Further, he submitted that Mr Katene’s offending was not as serious as that in Dixon, and that the victims’ conduct in this case was more involved and prolonged than that in Templeton.

[14]      R v Dixon HC Auckland CRI 2003-092-26923, 27 May 2005.

[15]      Above.

[16]      R v Hines CA12/99, 12 March 1999.

[20]       There is no sentencing tariff for offending under s 198(1).  Accordingly, the sentencing Judge must determine the appropriate starting point by considering the facts of the case and the available penalty, and by reference to sentences imposed in cases of similar offending.  In this case we do not accept that the Judge erred in adopting a starting point of five years.  This was serious offending involving firearms.  It called for a sentence that provided for denunciation and both general and personal deterrence.  Mr Katene’s offending involved a degree of planning, in assembling the vehicles, firearms, and ammunition, and in arranging for the neighbours to be absent.  Further, it involved an element of home invasion in that the offenders went to the Tuhoro’s property in the evening, with the intention of finding them at home.  Finally, Mr Katene was the principal offender.

[21]       A starting point of five years was well within the range available to the Judge, and cannot be criticised as being too high.

Totality

[22]       Mr Schulze then submitted that the Judge did not give a sufficient discount to reflect the totality principle set out in s 85 of the Sentencing Act.

[23]       As noted earlier, Hareopa Katene was sentenced to a total of seven years six months imprisonment on 3 February 2009, on charges of aggravated robbery and aggravated wounding.  He was serving that sentence when he appeared for sentencing on the later offending.  The cumulative sentence then imposed therefore resulted in his total period of imprisonment being twelve years two months.  Mr Schulze submitted that this is out of proportion to the total offending.

[24]       We accept that the Judge was required to apply s 85.  As this Court said in R v Theodore:[17]

The totality principle requires the Court to address the question of the appropriate sentence for these three separate sets of offending, on the hypothesis that sentencing for all three is before the same Judge on the same occasion.

Further, in Forrest v R,[18] the Court of Appeal affirmed the approach taken in Theodore and said:[19]

The principle simply requires that Judges, whether sentencing an offender in relation to a number of offences at one time or in imposing a cumulative sentence upon an existing term of imprisonment, ensure that any cumulative term of imprisonment is not wholly out of proportion to the gravity of the overall offending.

[17]      R v Theodore CA382/96, 24 February 1997.

[18]      Forrest v R [2010] NZCA 34.

[19] At [27].

[25]       Here, the Judge applied a discount of four months to the sentence to be imposed for Hareopa Katene’s latest offending.  Mr Schulze submitted that that was insufficient.  We do not accept that submission.  We are satisfied that the Judge gave appropriate consideration to the totality principle, and that the discount applied was appropriate.  In the end result, the total term of imprisonment imposed is not wholly out of proportion to the gravity of Mr Katene’s overall offending.

Eria Katene

Starting point

[26]       Mr Bergseng submitted that the starting point of three years six months was too high.  He submitted that the Judge had placed undue weight on the fact that Eria Katene had weapons in his possession and that by firing a shot into Alec Tuhoro’s vehicle he had demonstrated a willingness to take an active part.  Mr Bergseng also referred to the sentences cited by the Judge, and submitted that they were all distinguishable, on the basis of the actual offending and Mr Katene’s lesser involvement.

[27]       Again, we do not accept that the Judge erred in adopting a starting point of three years six months.  That starting point properly reflected the fact that Eria Katene was not the principal offender, while at the same time recognised the seriousness of the offending in which he had actively participated.

Mitigating personal factors

[28]       With rather more force, Mr Bergseng also submitted that while the Judge acknowledged relevant mitigating personal factors, he gave an inadequate discount for those factors, with the result that the end sentence of two years four months was manifestly excessive.

[29]       Mr Bergseng accepted that the Judge had referred to, and given a discount for, the appellant’s age (22 at the time of the offending), his lack of any previous convictions, his employment (including the very positive reference from his employer), his apology to Shannon Tuhoro and willingness to engage in a restorative justice process, the supportive statements in the victim impact reports, Eria Katene’s remorse, and the probation officer’s assessment that he was at a low risk of re-offending.  Mr Bergseng submitted that the discount of six months for those factors was inadequate.

[30]       The essence of Mr Bergseng’s submission was that the Judge should have reached an end sentence of less than two years imprisonment, and that a sentence of home detention would have been an appropriate response to Eria Katene’s offending – whether that was achieved by way of adopting a lower starting point or by allowing greater discounts.

[31]       We are not persuaded that we should interfere with the sentence.  We have concluded that there was no error in the Judge’s determination of the starting point of three years six months.  The reduction of four months to arrive at an adjusted starting point of three years two months to take account of the victim’s conduct, was appropriate.  It was not challenged.

[32]       The deduction of six months for personal factors represented a discount of 15.79% from the adjusted starting point.  The Judge clearly took into account all the factors put to him and applied a discount.  The extent of the discount he applied was a matter for the exercise of his discretion.  We are not persuaded that he erred in the exercise of his discretion.  To the contrary, the actual discount was appropriate.

[33]       Finally, there was, appropriately, no challenge to the final discount of four months for Eria Katene’s guilty plea shortly before trial, to arrive at the end sentence of two years four months imprisonment.  That was a discount of 12.5%.

[34]       We are satisfied that the Judge followed the correct sentencing process.  We are also satisfied that the end sentence arrived at was appropriate for Eria Katene’s offending.

[35]       We share the concern expressed by Mr Bergseng, and the Judge, that Eria Katene has now been sentenced to a term of imprisonment when he had previously had an exemplary record of education and employment and had kept himself out of trouble with the law.  It is, as the Judge said, a real shame that at his age and with what he has achieved, he appeared for sentencing on the charges to which he had pleaded guilty.[20]  However, he was sentenced for offending which was serious and in which he had been an active participant.  Regrettably, the consequences of that offending were brought upon Mr Katene by his own voluntary actions.

Outcome

[20] At [18].

[36]       Both appeals against sentence are dismissed.

Solicitors:

Lance & Lawson, Rotorua for First Appellant

Bergseng & Co, Tauranga for Second Appellant

Crown Law Office, Wellington for Respondent