Kohu v R

Case [2023] NZCA 343 4 August 2023

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA552/2022
[2023] NZCA 343

BETWEEN	PETER THOMAS KOHU Appellant
AND	THE KING Respondent

Hearing:	9 May 2023
Court:	Mallon, Moore and Fitzgerald JJ
Counsel:	A T Sykes and H J Rameka for Appellant A J Gordon and G Banuelos for Respondent
Judgment:	4 August 2023 at 12 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Moore J)

Introduction

Following a sentence indication, Mr Kohu pleaded guilty in the Rotorua District Court to one charge each of wounding with intent to cause grievous bodily harm,[1] assault with a weapon,[2] and intentional damage.[3]
[1]Crimes Act 1961, s 188(1); maximum penalty 14 years’ imprisonment.
[2]Section 202C(1)(a); maximum penalty five years’ imprisonment.
[3]Section 269(2)(a); maximum penalty three years’ imprisonment.
On 19 September 2022 Judge MacKenzie sentenced Mr Kohu to five years and two months’ imprisonment on the wounding charge and concurrent sentences of six months’ imprisonment on the charges of assault with a weapon and intentional damage.[4]
[4]R v Kohu [2022] NZDC 18479 [Sentencing notes].
Mr Kohu appeals his sentence on the grounds that the Judge failed to give proper or sufficient weight to the tikanga Māori aspects of the restorative justice process, the genuine remorse expressed by Mr Kohu and the combined weight of the various cultural factors set out in a comprehensive s 27 report.

The procedural background

We set out the events that preceded the sentence indication because this is necessary to properly understand the circumstances surrounding the entry of Mr Kohu’s guilty pleas and whether he properly understood the alleged factual basis on which he was sentenced.
Mr Kohu first appeared on 13 January 2021 and was remanded in custody. On 16 February 2021 he pleaded not guilty to all charges and elected trial by jury. A standby trial was set for 8 November 2021, but it was not reached. Mr Kohu then sought a sentence indication.
On 11 May 2022 he appeared before Judge Marshall for the sentence indication.[5] Because the defence submissions raised an alternative and contradictory narrative to that in the summary of facts, the Judge observed that he could only give an indication on the basis of an agreed summary, explicitly noting that he was aware Mr Kohu did not accept material aspects of the summary.[6] As the Judge said, the alternative account Mr Kohu had given to counsel would materially affect the starting point.[7]
[5]R v Kohu DC Rotorua CRI-2021-063-000155, 11 May 2022 [Sentence indication].
[6]At [2].
[7]At [8].
He pointed out that Mr Kohu had three options:[8] to accept the summary and seek an indication (which could be accepted or not after legal advice); to plead guilty and proceed to a disputed facts hearing;[9] or to plead not guilty and go to trial. The Judge said that where a sentence indication is sought, he “must proceed on the basis of” the summary of facts.[10] The Crown expressed reservations about…

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 Kohu v R

Details

AGLC: Kohu v R [2023] NZCA 343
Case: [2023] NZCA 343
Decision Date: 4 August 2023 at 12 pm

CaseChat Overview and Summary

Peter Thomas Kohu appeals his sentence, arguing that the sentencing judge did not sufficiently consider the cultural factors outlined in a section 27 report, his remorse, and the restorative justice process. The Crown argues that the sentence was appropriate and that the judge correctly considered the evidence before her. The key issues are whether the discount for the cultural factors identified in the section 27 report was inadequate and whether a separate discount should have been given for remorse. The court found that the judge appropriately applied the principles from previous cases, granting a 15% discount for cultural factors and rejecting the claim for additional discounts for remorse and the restorative justice process. The appeal was dismissed, and the original sentence stands.

Orders