Kisiogo v R - [2021] NZHC 1648

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-000121

[2021] NZHC 1648

BETWEEN
MARE KISIOGO

Appellant

AND

THE QUEEN

Respondent

Hearing: 5 July 2021

Appearances:

R Slade for Appellant

M Davie for Respondent

Judgment:

5 July 2021

ORAL JUDGMENT OF VENNING J

Appeal against sentence

Solicitors: Crown Law, Wellington
Public Defence Service, Auckland

KISIOGO v R [2021] NZHC 1648 [5 July 2021]

[1] Mare Kisiogo pleaded guilty to one charge of aggravated robbery and one charge of unlawfully taking a vehicle. Following a sentence indication,1 which he accepted, Judge Bouchier sentenced him to three years, seven months’ imprisonment.2 He now appeals on the ground the sentence was manifestly excessive as the Judge erred by failing to give him sufficient credit for his personal mitigating factors.3

The offending

[2] On 2 May 2020 a Subaru car was stolen from an address in Epsom. Less than a fortnight later on the afternoon of 14 May 2020 that car was used by the appellant and his four co-defendants to commit an aggravated robbery. They drove to the Tulja Centre at Stoddard Road, Mount Roskill. The appellant and three of his co-defendants got out of the vehicle wearing hooded jerseys, and bandanas that covered their faces. They were also wearing gloves. They brandished hammers and one of them carried a large rock. The remaining co-defendant remained inside the car as the getaway driver. The appellant and the others forced their way into the premises at Sona Sansaar, a jewellery store specialising in handcrafted gold and diamond jewellery inside the Tulja Centre, by completely smashing the glass door. At the time Vishal Lodhia and three female staff members were present in the store. There were also three adult customers and a baby in the store. The robbers yelled threats at the staff and customers while others of them smashed several glass cabinet displays with the hammers. They gathered up large amounts of gold jewellery from the display cabinets valued at over
$1 million. They then left the store in the waiting Subaru car. The appellant and his co-defendants had a further getaway car, a BMW, waiting for them some distance away. About 40 minutes later they were tracked by a Police helicopter to an address in Papatoetoe and were subsequently arrested. The Police were able to recover jewellery and items to a retail value of about $840,000.

[3] The appellant and his co-defendants were given sentence indications on 20 November 2020. The appellant subsequently accepted his indication. He pleaded guilty and was sentenced on 15 February 2021.

1      R v Kisiogo DC Auckland CRI-2020-004-4486; CRI-2019-044-3038; CRI-2020-004-000393, 20
November 2020.
2      R v Kisiogo [2021] NZDC 2547.
3      This appeal is to this Court as s 247(1)(c), Criminal Procedure Act 2011 applies.

District Court sentence

[4] In sentencing the appellant Judge Bouchier took as a starting point five years, 10 months (reflecting a start point of five years, six months for the offending and an uplift…

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 Kisiogo v R

Details

AGLC: Kisiogo v R [2021] NZHC 1648
Case: [2021] NZHC 1648
Decision Date: 5 July 2021

CaseChat Overview and Summary

Mare Kisiogo appeals against his sentence for aggravated robbery and unlawfully taking a vehicle. The appellant and his co-defendants committed the aggravated robbery by smashing their way into a jewellery store and stealing over $1 million worth of jewellery. The appellant pleaded guilty and accepted a sentence indication of three years, seven months' imprisonment. The District Court Judge applied a 35 per cent discount to the starting point of five years, 10 months, resulting in the final sentence. The appellant argues the sentence was manifestly excessive because the Judge failed to give him sufficient credit for his personal mitigating factors. The Court of Appeal must allow the appeal if satisfied that there is an error in the sentence imposed and that a different sentence should be imposed. Otherwise the Court must dismiss the appeal.

The Court found the Judge was justified in not adjourning the sentencing hearing for the purposes of obtaining a s 27 report as sufficient information was already available. The Court also found that while the appellant was entitled to a discount for youth, the nature of the offending warranted tempering that discount. The information before the Court fell short of establishing genuine remorse. The additional material in the s 27 report was of limited value on this appeal. The appellant’s history and response to previous sentences did not support a discount for prospects of rehabilitation. While another Judge may have given the appellant a more substantial discount for his personal circumstances, the Court found the Judge’s sentence was not in error. The appeal was dismissed.

The Court dismissed the appeal and upheld the District Court's sentence of three years, seven months' imprisonment.

Orders