R v Hegotule - [2018] NZHC 2790

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-004-1086

[2018] NZHC 2790

THE QUEEN

v

NYKELL-T HEGOTULE

Hearing: 29 October 2018

Counsel:

N E Copeland for Crown F P Hogan for Defendant

Judgment:

29 October 2018

SENTENCING NOTES OF WHATA J

Solicitors: Meredith Connell, Auckland

R v HEGOTULE [2018] NZHC 2790 [29 October 2018]

[1]Mr Hegotule, you face sentence on the following charges:

(a)Demanding with intent to steal;

(b)Injuring with intent to injure;

(c)Aggravated robbery;

(d)Kidnapping; and

(e)Dishonest use of a document.

[2]The lead charge is aggravated robbery with a maximum sentence of 14 years.1

[3] As this is your second-strike offence, you must serve the entirety of the sentence.2

Facts

[4] I can state the facts of your offending briefly. In the morning of 15 January 2017, you went to a motel in Newmarket at the request of one of three co-defendants as part of a pre-planned robbery of the victim. One of those co-defendants, Ms Asia Robertson, pleaded guilty to the same or similar offending as you. Another co- defendant, Ms Goodson, was found guilty of kidnapping, demanding with intent to steal, and dishonestly using a document. The third co-defendant is yet to be tried.

[5] Soon after your arrival at the motel, you confronted the victim in the bedroom brandishing a knife and, together with the other co-defendants, demanded the victim transfer a considerable sum of money into a bank account. The money was not transferred, although the victim’s wallet was taken.

[6] At about this time, the victim tried to make his escape. As he did so, you struck him to the head, causing him to momentarily black out. The victim was then tied up

1 Crimes Act 1961, s 235.
2 Sentencing Act 2002, s 86C.

and left in the bedroom. He was clearly injured, with blood flowing from the injury caused by your blow. You then departed the premises with a co-defendant, Ms Goodson. Ms Asia Robertson, and it is alleged, the third co-defendant, then drove to several ATM machines and withdrew money using the victim’s bank cards.

[7] The victim managed to free himself and alert other motel users who then alerted the police. He suffered a fractured eye socket, a fractured nose and bruising, as well as cuts to his wrists. $2,800 was taken from his accounts.

Start point

[8] I turn now to look at a start point for your sentence. Ms Robertson has been sentenced. The Judge, in her sentencing, commenced with a start point of four and half years on the lead charge of aggravated robbery.3 The Crown submits that your culpability is higher, given your role in the physical violence. I agree in part. The totality of your offending, including the threats with a knife and the physical assault, including striking to the head, the kidnapping and the theft demand, require a stern start point.4 However, the evidence at trial suggested you were a late comer to a…

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 R v Hegotule

Details

AGLC: R v Hegotule [2018] NZHC 2790
Case: [2018] NZHC 2790
Decision Date: 29 October 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Whata J heard the case of The Queen v Nykell-T Hegotule, where the defendant faced charges of demanding with intent to steal, injuring with intent to injure, aggravated robbery, kidnapping, and dishonest use of a document. The lead charge of aggravated robbery carried a maximum penalty of 14 years imprisonment. Given the defendant's prior convictions, he was required to serve the entirety of the sentence imposed.

The court had to decide on an appropriate start point for the defendant's sentence, considering his higher culpability due to his role in the physical violence during the robbery. The Crown suggested an uplift of three months for prior convictions, which the court did not agree with, as it would already be factored into the second-strike sentence. The court also took into account the defendant's personal mitigating factors, such as his young age, supportive whānau, and efforts towards rehabilitation while on remand. The court found that a 20% discount on the sentence was appropriate due to the defendant's difficult upbringing, steps taken to rehabilitate, capacity for rehabilitation, acknowledgment of wrongdoing, and preparedness to engage in restorative justice.

Whata J imposed a finite sentence of 4 years' imprisonment on the lead charge of aggravated robbery, with sentences of 2 years' imprisonment on each of the other charges to be served concurrently. The defendant was also subject to the three strikes law, which meant that if he were convicted of another serious violent offence, he would be sentenced to the maximum term of imprisonment for each offence, to be served without parole or early release unless it would be manifestly unjust. If convicted of manslaughter or murder after this warning, the defendant would be sentenced to imprisonment for life or a different minimum period of imprisonment.

Orders