Mokaraka v Police - [2020] NZHC 718

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2020-441-7

[2020] NZHC 718

GRAHAM CEDRIC MOKARAKA

v

NEW ZEALAND POLICE

Hearing: 7 April 2020

Appearances:

P Jensen for the Appellant

F Cleary for the Respondent

Judgment:

7 April 2020

JUDGMENT OF COOKE J

[1] Mr Mokaraka appeals a sentence of two years, three months’ imprisonment imposed after pleading guilty to the following charges:

(a)One charge of threatening to kill,1

(b)One charge of assault on a person in a family relationship,2

(c)One charge of strangulation.3

1      Crimes Act 1961, s 306, maximum penalty seven years’ imprisonment.
2      Section 194A, maximum penalty two years’ imprisonment.
3      Section 189A(a), maximum penalty seven years’ imprisonment.

MOKARAKA v NEW ZEALAND POLICE [2020] NZHC 718 [7 April 2020]

[2] Mr Mokaraka appeals his sentence on the grounds the starting point adopted at sentencing was higher than the starting point adopted in a sentence indication he had been given.

Factual background

[3] The victim is Mr Mokaraka’s partner. On 23 June 2019 Mr Mokaraka began arguing with the victim. He grabbed her by the hair and dragged her down the hallway into a bedroom. He told the victim he was going to kill her. He put his hands around her throat and squeezed, strangling her. She was unable to breathe and her face became tight. She briefly fought him off but he grabbed her and again grabbed her by the throat and squeezed. She attempted to fend him off her but Mr Mokaraka bit her fingers. He finally released her but kept her in the bedroom for several hours, continuing to yell at her.

[4] The victim received bruising to the neck, throat and back as well as bite marks to her finger.

District Court decision

[5] Judge Adeane gave a sentence indication on 3 September 2019 in the briefest of terms. He said:4

[2] Counsel have put forward the decision of Cooke J in Ackland v Police and submits that a starting point of two years’ imprisonment would be appropriate.5

[3] Clearly, this is a matter within the intended spirit of the strangulation legislation. It involves domestic violence of a particularly unpleasant kind and, in my view, counsel is correct to submit for a starting point of two years which is the indication now given to Mr Mokaraka.

[4] I am not prepared to go further and speculate about commutation of the sentence to home detention. That will depend on information yet to be received by the Court.

[6] Following this indication Mr Mokaraka pleaded guilty. Sentencing took place before a different Judge. Judge Sygrove took a starting point of two and a half years’

4 Mokaraka v New Zealand Police DC Napier CR-2019-041-1294, 3 September 2019 at [3].
5 Ackland v Police [2019] NZHC 312, [2019] NZAR 1112.

imprisonment on the lead charge of strangulation, noting there were four aggravating factors present in the offending.6 He uplifted that by six months for the other charges. Observing…

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.

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Details

Case: [2020] NZHC 718
Decision Date: 7 April 2020

CaseChat Overview and Summary

Mr Mokaraka appeals the sentence of two years and three months' imprisonment imposed by Judge Sygrove, following his guilty plea to charges of threatening to kill, assaulting a person in a family relationship, and strangulation. The appeal focuses on whether the sentence was erroneous and whether a different sentence should have been imposed. The critical legal issue was whether the starting point adopted by Judge Sygrove was higher than the sentence indication given by Judge Adeane, and if this constituted an error warranting a sentence adjustment on appeal.

The court held that ordinarily, a departure from the sentence indication requires the defendant to be given an opportunity to vacate their guilty plea. However, Mr Mokaraka chose not to vacate his plea, and the court considered the appropriate approach in such circumstances. The court noted that while an error in the sentencing process existed, the appeal should only succeed if the court believed a different sentence should have been imposed, considering the matter afresh. The court emphasised the importance of carefully considering the facts and context of the offending, rather than adopting a rigid or mathematical approach.

In comparing the starting point with other similar cases, the court found that a starting point of two years' imprisonment was most appropriate. The court also considered the uplifts for other charges, noting that while the assault was considered at both stages, it was relevant in setting the starting point and justifying an uplift. The final sentence, after discount for the guilty plea, was set at one year and ten months, differing by five months from the sentence imposed by the District Court Judge.

The court allowed the appeal and substituted the sentence with one year and ten months' imprisonment. The court also formally reserved leave for the appellant to apply to the District Court for home detention, although it was unlikely to be a realistic option.

Orders