Kolofale v R - [2022] NZCA 74

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA401/2021
[2022] NZCA 74

BETWEEN	TEVITA KOLOFALE Appellant
AND	THE QUEEN Respondent

Hearing:	22 February 2022
Court:	Courtney, Katz and Cull JJ
Counsel:	J A Younger for Appellant C Ure for Respondent
Judgment:	24 March 2022 at 10 am

JUDGMENT OF THE COURT

A The appeal is allowed.
BThe sentence of seven years is set aside and substituted with one of six years six months.

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REASONS OF THE COURT

(Given by Courtney J)

Introduction

Mr Kolofale pleaded guilty to one charge of wounding with intent to injure, two of aggravated robbery and one of receiving. The charges arose from the following incidents:
(a)On 10 December 2019 Mr Kolofale attacked JE in the street with a boning knife, stabbing him multiple times in the back and torso (charge 1 — wounding with intent to injure).
(b)On 9 July 2020, while on bail, Mr Kolofale went to JE’s house and threatened him with a knife in front of his wife, their three children and his 11-year-old sister. He punched JE in the head twice and demanded that he hand over property. He told JE that “I know where you live now. I’ll definitely be back” (charge 2 — aggravated robbery).
(c)Several days later Mr Kolofale spent the day with an associate, DR. In the evening Mr Kolofale drove DR’s vehicle, with DR as a passenger, to a rural area and demanded that DR get out of the vehicle. Another vehicle arrived with three of Mr Kolofale’s associates. Mr Kolofale punched DR in the face. He and his associates punched and kicked DR an estimated 15 times. DR’s vehicle and cellphone were stolen. A sawn-off shotgun was brandished at him out of the car window as the group drove off (charge 3 — aggravated robbery).
(d)On 19 July 2020 Mr Kolofale took a vehicle worth about $5,000 (charge 4 — receiving).
Judge Krebs imposed an end sentence of seven years’ imprisonment.[1] The Judge took starting points of two years nine months’ imprisonment for charge 1, seven years’ imprisonment for charge 2 and three years six months’ imprisonment for charge 3.[2] He reduced the combined starting point of 13 years three months’ to one of 12 years’ imprisonment for totality.[3]
[1]R v Kolofale [2021] NZDC 11639 at [50] [Sentencing judgment].
[2]At [13]–[16]. The receiving charge was dealt with by a one-year concurrent sentence of imprisonment without any uplift.
[3]At [19].
The Judge declined to grant a specific discount for youth because of Mr Kolofale’s age (25 years) combined with his history of serious offending. He allowed discounts of 20 per cent for the guilty pleas and 20 per cent for Mr Kolofale’s personal factors. These psychological and cultural factors included the effect of ADHD on Mr Kolofale’s behaviour, the clear nexus between Mr Kolofale’s upbringing and cultural factors and the way his health was treated. These factors were then balanced against his offending.
Mr Kolofale was also given…

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 Kolofale v R

Details

AGLC: Kolofale v R [2022] NZCA 74
Case: [2022] NZCA 74
Decision Date: 24 March 2022 at 10 am

CaseChat Overview and Summary

Tevita Kolofale pleaded guilty to charges of wounding with intent to injure, aggravated robbery, and receiving. The appeal against his sentence was heard by the Court of Appeal of New Zealand, presided over by Courtney, Katz, and Cull JJ. Kolofale's counsel, J A Younger, argued that the sentence was manifestly excessive, citing issues with the starting point for charge 3, the absence of a youth discount, inadequate discounts for totality and personal factors, and the lack of consideration for time spent on electronic monitoring bail. The Crown, represented by C Ure, maintained that the sentence was within the appropriate range.

The court examined the starting point for charge 3, considering it appropriate given the level of planning and the nature of the assault. The court also found no error in the judge's decision not to grant a discount for youth, noting Kolofale's extensive history of serious offending. Regarding the discounts for totality and personal factors, the court acknowledged the mitigating circumstances but found no error in the judge's assessment. However, the court identified a need for greater consideration of rehabilitation, given Kolofale's age, treatable ADHD, and motivation for change. The court further found no justification for an allowance based on the time Kolofale spent on electronic monitoring bail.

The appeal was allowed, and the sentence of seven years was set aside, substituted with one of six years and six months. This decision reflects the court's view that while the sentence was within the appropriate range, the issue of rehabilitation deserved more careful consideration.

Orders