[1] The appellant, Mr Sione Katoa, appeals out of time against his sentence of three years’ imprisonment for aggravated robbery, wounding with intent to injure and common assault. The appeal is on the basis that the sentence is manifestly excessive, inappropriate in all the circumstances and not on a par with sentences imposed on a co-defendant, Mr Philipa.

Factual background

[2] At 4:00 pm on 23 October 2013, the first victim, Mr Silva, was walking on the footpath in the Mangere Town Centre. The appellant and co-defendant, Mr Philipa, asked Mr Silva if he had $2 to give them. Mr Silva said he did not. The defendants followed Mr Silva and the appellant punched him in the face. That is undisputed. Mr Silva fell to the ground and lost consciousness. He also suffered a cut lip and some injury to his eye. The defendants took Mr Silva’s bag, his wallet, phone and various personal items. That was the basis for the aggravated robbery charge.

[3] The defendant and his co-defendants were disturbed by the second victim, Mr Tarai, and left the scene. The robbery was also witnessed by a third victim, Mr Chongnee.

[4] At about 7:00 pm, Mr Tarai and Mr Chongnee were walking along a walkway in the Mangere Town Centre. The appellant, and the two other co-defendants, Mr Philipa and Mr Kaho, along with others, were drinking in the walkway at the time. As Mr Tarai and Mr Chongnee approached, a conversation began about the earlier robbery they had witnessed. The appellant threw a punch at Mr Chongnee’s head. Mr Chongnee ducked, but a fight between them began. That is the basis of the common assault charge.

[5] Mr Kaho then picked up an empty bottle of beer and hit Mr Chongnee on the back of the head, causing the bottle to smash. Mr Chongnee then ran away. He received minor injuries.

[6] Mr Tarai also attempted to run when he saw Mr Chongnee being assaulted, but unfortunately tripped and fell to the ground. While on the ground, Mr Tarai was attacked by multiple assailants – the appellant, Mr Philipa and other unknown males. He was kicked and punched a number of times to the body and head. Mr Kaho smashed a beer bottle and stabbed Mr Tarai in the stomach, lower back and neck area as he lay on the ground. The appellant and his co-offenders then ran from the area when a witness approached. Mr Tarai suffered multiple stab wounds and abrasions requiring hospitalisation and surgery, and it is that assault which was the basis of the wounding…

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 [2015] NZHC 1562
Case: [2015] NZHC 1562
Decision Date: 6 July 2015

CaseChat Overview and Summary

Sione Katoa appeals against his three-year sentence for aggravated robbery, wounding with intent to injure, and common assault. The appeal is on the basis that the sentence is manifestly excessive, inappropriate in all circumstances, and not on a par with the sentence imposed on his co-defendant, Mr Philipa. The appeal was filed out of time due to an innocent mistake by the appellant's counsel. The court granted leave to appeal and assessed the merits of the appeal.

The court considered the grounds of appeal and found that there was no error in the sentence imposed by the District Court. The starting point of four years' imprisonment was appropriate, and the court considered the four years' starting point for the aggravated robbery and wounding with intent charges. The court noted that the appellant had breached bail conditions on ten occasions, which precluded any reduction in sentence. The court also found that there was no genuine remorse demonstrated by the appellant, and the late guilty plea did not necessarily indicate remorse. Lastly, the court found no disparity between the sentences imposed on the appellant and Mr Philipa.

The appeal was dismissed as the sentence was within the range that could be properly justified by accepted sentencing principles. The totality of the sentence, considering the nature of the offending, was in the court's view, within range.

Orders