AAn extension of time to bring the appeal is granted.
BThe appeal is allowed.
CThe sentence of six years imprisonment is quashed and a sentence of five years and eight months is imposed.

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REASONS OF THE COURT

(Given by Stevens J)

Introduction

The appellant, Mr Koroheke, appeals against a sentence of six years’ imprisonment imposed by Judge Rea in the District Court at Napier.[1] The appellant entered pleas of guilty to two counts of aggravated robbery, two counts of assault, one count of wilful damage, one count of unlawfully taking a motor vehicle and one count of driving with excess breath alcohol.[2] The appellant challenges his sentence on the basis that the Judge did not take account of the totality principle and that the Judge failed to adequately take into account the appellant’s youth and remorse as mitigating factors.
[1]R v Koroheke DC Napier CRI-2010-020-1925, 9 December 2010.
[2]The aggravated robbery charges were laid indictably; the remaining charges were all summary charges. There was a discussion before us as to whether there were in fact two separate charges of assault or only one. No summary of facts was available for the second charge, said to have occurred on the same day. As nothing turns on the point, for the purposes of the appeal we proceed on the basis that there was only one assault charge.
The appeal is brought out of time. However, the Crown accepts that there is a reason for the delay and does not oppose an extension of time to bring the appeal. We grant an extension of time to appeal.

Factual background

The two charges of aggravated robbery relate to events that occurred in Hastings in August 2010. The first robbery occurred on 21 August 2010, when the appellant entered a dairy armed with a metal bar. He wore a red bandana over his face and dark clothing. The appellant shouted threats at two shop assistants, causing them to flee. The appellant stole 28 packets of tobacco valued at $819.00 and approximately $300 in cash. He then left the shop and threw the metal bar away before getting into an awaiting vehicle.
The second aggravated robbery occurred on 31 August 2010. The appellant went to a different dairy and sat outside on a picnic table for about 10 minutes before entering the store. He wore a black balaclava as well as dark clothing and was armed with a sawn-off shotgun. When the appellant unsuccessfully attempted to grab money from the till, he pointed the gun at three shop assistants and threatened to shoot. The appellant then entered the area adjacent to the shop where the owners lived and demanded money from them.…

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 Koroheke v R

Details

AGLC: Koroheke v R [2012] NZCA 368
Case: [2012] NZCA 368
Decision Date: 20 August 2012

CaseChat Overview and Summary

Ricky-Lee Koroheke appeals against his sentence of six years' imprisonment imposed by the District Court for multiple serious criminal charges, including aggravated robbery, assault, and unlawful taking of a motor vehicle. The appellant argues that the sentencing judge failed to properly consider the totality principle and did not adequately account for the appellant's youth and remorse as mitigating factors. The appeal was initially dismissed due to the late filing, but an extension of time was granted as the Crown did not oppose it.

The Court of Appeal assessed the starting point for the lead offence, which involved the appellant threatening shop assistants with a sawn-off shotgun, and found that a starting point of five years and six months was within range. The Court noted the numerous aggravating features present in the offences, including the appellant's use of a weapon and the targeting of retail premises. The Court also considered the uplift for the first aggravated robbery charge, which warranted a sentence of up to four years. The total starting point for all charges combined was considered to be adequately warranted at eight and a half to nine and a half years' imprisonment.

Regarding the mitigating factors, the Court examined the appellant's youth and found that the sentencing judge was correct in not imposing any uplift for it, given the appellant's extensive criminal history. The Court further noted that the discount for the guilty pleas was incorrectly calculated, resulting in a lesser reduction than intended. The Court concluded that the arithmetical error should be corrected to reflect the sentencing judge's intentions.

The appeal was allowed, and the sentence of six years' imprisonment was quashed. In its place, the Court imposed a sentence of five years and eight months.

Orders