Koti v The Queen - [2018] NZHC 547

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI-2018-416-5

[2018] NZHC 547

BETWEEN
JACK KOTI

Appellant

AND

THE QUEEN

Respondent

Hearing: 20 March 2018

Counsel:

N H Wright for Appellant C R Stuart for Crown

Judgment:

27 March 2018

JUDGMENT OF THOMAS J

Introduction

[1] Jack Koti is 22 years old and was sentenced on 16 January 2018 in the Gisborne District Court to four years one month’s imprisonment following guilty pleas to 24 various charges.1 Mr Koti now appeals that sentence on the ground it was manifestly excessive.

Factual background

[2]Mr Koti faced charges and was sentenced as follows.

1 R v Koti [2018] NZDC 622.

KOTI v R [2018] NZHC 547 [27 March 2018]

[3]Arising from conduct during April 2017:

(a)Unlawfully getting into a motor vehicle when the keys were left in the ignition.2 The vehicle was later found crashed, although there is no information as to what damage might have been caused. Sentence: six months’ imprisonment, concurrent.

(b)Assaulting a police officer by spitting.3 Sentence: one month’s imprisonment, concurrent.

(c)Burglary of items valued at $9,659 from a residential address, including gaming consoles, a laptop, tablets, passports, food, alcohol and clothing.4 Entry was gained through an open window. Sentence: two years’ imprisonment, concurrent.

(d)Theft greater than $1000 of a Noel Leeming display cell phone.5 Sentence: six months’ imprisonment, concurrent.

(e)Two charges of theft less than $500 of an unattended handbag in a shop and shoplifting a sweater.6 Sentence: one month’s imprisonment on each, concurrent.

(f)Escaping custody when Mr Koti’s girlfriend (and co-offender) opened a police vehicle door for him to escape.7 Sentence: 10 months’ imprisonment, concurrent.

[4]Arising from conduct during May 2017:

(a)Arson (jointly charged).8 While in police custody, Mr Koti managed to get a line or cord to the next cell, which was then lit by another inmate.

2      Crimes Act 1961, s 226(2), maximum penalty two years’ imprisonment.
3      Summary Offences Act 1981, s 10, maximum penalty six months’ imprisonment, fine $4,000.
4      Crimes Act 1961, s 231(1)(a), maximum penalty 10 years’ imprisonment.
5      Sections 219 and 223(b), maximum penalty seven years’ imprisonment.
6      Sections 219 and 223(d) maximum penalty three months’ imprisonment.
7      Section 120(c) maximum penalty five years’ imprisonment.
8      Section 267(1)(a) maximum penalty 14 years’ imprisonment.

Mr Koti’s cellmate brought the line back to their cell and Mr Koti used it to set fire to a towel, magazines and toilet paper. This caused a small fire which was stomped out and fully extinguished with a jug of water. Mr Koti and his cellmate had to use a towel to prevent smoke inhalation. They were removed to holding cells, as were adjacent cellmates, one of whom had asthma and was removed to hospital for observation. Minor damage to the cell wall was sustained and a towel destroyed. Sentence: four years one month’s imprisonment.

[5]Arising from conduct on 2 August 2017:

(a)Unlawfully getting into vehicle by using keys to the vehicle located by Mr Koti.9 Sentence: one…

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 Koti v The Queen

Details

AGLC: Koti v The Queen [2018] NZHC 547
Case: [2018] NZHC 547
Decision Date: 27 March 2018

CaseChat Overview and Summary

In this case, the appellant, Jack Koti, appealed against the sentence of four years one month's imprisonment imposed by the District Court. The sentence followed Koti's guilty pleas to 24 charges, including burglary, theft, arson, and escaping custody. Koti contended that the sentence was manifestly excessive. The High Court assessed whether the District Court erred in its starting point and the overall sentence. The starting point for the arson was appropriate, but the starting points for the other offences were higher than warranted. The totality adjustment was also excessive. The appropriate starting point should have been four and a half years. The High Court substituted the sentence with three years and one month's imprisonment, with concurrent sentences for the burglary and escaping custody. The other sentences were left unchanged.

Orders