Katoa v Police - [2023] NZHC 1987

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-000233

CRI-2023-404-000234 [2023] NZHC 1987

IN THE MATTER OF an appeal against sentence

BETWEEN

SIONE KATOA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 25 July 2023

Appearances:

E M Gresson for Appellant B A Mugisho for Respondent

Judgment:

27 July 2023

JUDGMENT OF EDWARDS J

This judgment was delivered by me on 27 July 2023 at 4.00 pm.

Registrar/Deputy Registrar

Counsel/Solicitors:
E M Gresson, Auckland
Kayes Fletcher Walker (Crown Solicitor at Manukau), Auckland

KATOA v POLICE [2023] NZHC 1987 [27 July 2023]

[1] Mr Katoa was sentenced to 23 months’ imprisonment and disqualified from driving for 13 months for the following charges:1

(a)1 x assaults with intent to injure (manually);2

(b)1 x disorderly behaviour likely to cause violence;3

(c)1 x possessing knife in public place;4

(d)2 x driving with excess breath alcohol;5 and

(e)2 x driving while disqualified.6

[2] He appeals his sentence on the basis that the District Court Judge erred in not commuting that sentence to home detention.

Offending

[3] The offending fell into two groups. The first three of the above charges arose out of offending on 18 November 2021. The remaining charges arose on 3 November and 13 December 2022 respectively.

Events of 18 November 2021

[4] At approximately 8.00 pm on 18 November 2021, Mr Katoa and an associate were walking on Massey Road. They had been drinking and were intoxicated. The victim, who was unknown to them, was also walking on Massey Road.

1      New Zealand Police v Sione Katoa [2023] NZDC 8109.
2      Crimes Act 1961, s 193; maximum penalty three years’ imprisonment.
3      Summary Offences Act 1981, s 3; maximum penalty three months’ imprisonment or a fine not exceeding $2,000.
4      Summary Offences Act 1981, s 13A; maximum penalty three months’ imprisonment or a fine not exceeding $2,000.
5      Land Transport Act 1998, ss 56(1) and (4); maximum penalty two years’ imprisonment or a fine not exceeding $6,000.
6      Land Transport Act 1998, ss 32(1)(a) and (3); maximum penalty three months’ imprisonment or a fine not exceeding $4,500.

[5] When the defendants came across the victim, they attacked him. The victim was knocked to the ground and the defendants began to punch and kick him as he lay there.

[6] A member of the public intervened and stopped the assault by pulling the defendants away from the victim. This allowed the victim to stand. However, the defendants began punching him again. When the victim fell to the ground, Mr Katoa kicked him and stomped on his head.

[7] The same member of the public intervened and the victim fled down an alleyway. The defendants chased him. At some stage during the attack, Mr Katoa produced a pocketknife.

[8] The Police arrived. The defendants ran away, but were eventually located and arrested. When searched, Mr Katoa was found to be in possession of the pocketknife.

[9] The victim had multiple injuries, including lacerations, contusions, and…

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 Katoa v Police

Details

AGLC: Katoa v Police [2023] NZHC 1987
Case: [2023] NZHC 1987
Decision Date: 27 July 2023

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, was presented with an appeal against the sentence imposed by the District Court on Sione Katoa. Katoa was sentenced to 23 months’ imprisonment and disqualified from driving for 13 months following convictions for assault, disorderly behaviour, possessing a knife in public, and driving under the influence while disqualified. Katoa's appeal centred on the District Court's refusal to commute his sentence to home detention.

The primary legal issue was whether the District Court erred in not imposing home detention instead of imprisonment. The appeal hinged on whether the District Court Judge failed to sufficiently analyse the possibility of home detention and whether there was an error in declining to commute the sentence.

The court found that the District Court Judge had followed accepted sentencing methodology by assessing a starting point based on the aggravating and mitigating factors of Katoa’s offending. The Judge considered Katoa’s prior convictions and his offending while on bail, and his personal mitigating factors, including his engagement in counselling and efforts towards rehabilitation. The Judge explicitly stated that she would not sentence Katoa to home detention even if the calculation resulted in a sentence less than 24 months’ imprisonment. The court held that there was no predetermination against home detention and that the Judge’s reasons for not imposing home detention were based on the nature of the offending and Katoa’s prior convictions. The court also found that the prior convictions were relevant to determining the end sentence and whether home detention was appropriate.

The appeal was dismissed, affirming the District Court's decision.

Orders