R v Hiko

[2025] NZHC 105

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-092-004586

[2025] NZHC 105

THE KING

v

DESMOND JUNIOR HIKO

Hearing:	11 February 2025
Counsel:	CM Fountain for Crown HPW Johnson for Defendant
Judgment:	11 February 2025

SENTENCING REMARKS OF DOWNS J

Solicitors/Counsel:

Crown Solicitor, Manukau. HPW Johnson, Auckland.

R v HIKO [2025] NZHC 105 [11 February 2025]

Introduction

[1]                 Desmond Hiko, you are for sentence on two charges of unlawfully getting into a car,1 and much more seriously, two of discharging a firearm with reckless disregard for the safety of others.2

Background

[2]                 Your offending forms part of intergang hostility between the Tribesmen and Killer Beez gangs. In May and June of 2022, no fewer than 20 shooting incidents and nine of arson occurred between the two gangs.

[3]Your offending occurred 24 May 2022.

[4]                 At approximately 6.50 pm, you and three others drove to the home of a member of the Tribesmen in Flat Bush. Your group had at least three firearms: a 20-gauge shotgun, a 12-gauge shotgun, and a third unspecified firearm. Your group fired at least eight shots toward the home. A car in the driveway was hit, as was the home itself. Those in the home returned fire resulting in bullet damage to nearby properties and cars.

[5]                 You and  the  others  fled  in  a  car  specifically  stolen  for  the  purpose.  You abandoned that car, then got into another which was waiting for you at an arranged meeting point. You and your group drove away at speed.

[6]                 Later the same night, at approximately 11.18, you and two others went to a home in Henderson in a second stolen car. Your group was armed with at least two firearms. As with the first home, you went to the second believing it to be occupied by a member of the Tribesmen gang. However, that occupant was not living there. His partner was, with her young children.

[7]                 Your group drove down the driveway to the home, then revved the car’s engine. The female occupant approached the bedroom window in response. When she did,

1      Crimes Act 1961, s 226(2); maximum penalty, two years’ imprisonment.

2      Crimes Act, s 198(2); maximum penalty, seven years’ imprisonment.

your group fired repeatedly toward the home. At least four shots were fired. One entered the window, narrowly missing her head. Another hit the window frame. As with the first shooting, your group then drove away at speed.

[8]You declined to make a statement to Police.

[9]                 In recorded prison calls, you referred to being with your co-defendants in connection with the shootings but said you “didn’t wanna ride”. In relation to the first shooting, you said:

I went over there. They were all having a hui outside his house and then boom we just pulled out all the guns and went pop, pop, pop.

[10]In relation to the second shooting, you said you were “part of that one”.

Aggravating factors

[11]              At least three things make your offending more serious. First, it involved intergang warfare, a matter of significant public concern. Second, the offending was premediated, meaning planned. Again, you were part of a group specifically targeting homes believed to be connected to an opposing gang. You and your group used stolen cars to minimise risk of detection. The “hit” on each home was clearly planned. Third, there was a high risk of serious harm or worse to an occupant, neighbour, or someone who merely happened to be present. That is especially true of the second shooting, in which an occupant’s attention was attracted by the revving of the engine, and shots then directed toward the bedroom.

Starting point

[12]              I adopt the same starting point for you as I identified in my sentence indication of last year. Since then, I have sentenced two of your co-defendants in accordance with that indication.3 Here, as there, I treat the second shooting as the lead offence given that shots were directed at the bedroom and the grave risk of harm to the female occupant.

3      R v Baker [2024] NZHC 3152 and R v Toby [2024] NZHC 3804.

[13]              I adopt a four and a half year starting point on the basis you were present, but not the leader. I add 18 months for the first shooting. A greater uplift is probably available given the seriousness of that offending, but you are still young. The global six-year starting point also recognises what lawyers call the totality principle, one aspect of which seeks to ensure sentences are not disproportionately severe. So, the overall starting point is six years’ imprisonment.

Guilty plea discount

[14]              You were charged 8 September 2022. You pleaded guilty 13 November 2024. The Crown had earlier amended the charges (8 August 2024).

[15]              Guilty plea discount depends on several things including, unsurprisingly, timing. Strength of the Crown case is also relevant,4 as is whether you benefitted from amended charges.5

[16]              You benefitted from the Crown’s amendment of the charges. Your pleas could not be regarded as prompt given the overarching timeline. The evidence against you was strong given the prison telephone calls. I, therefore, deduct 15 percent for your guilty pleas. This deduction is commensurate, meaning consistent with, my approach in relation to your co-defendants whom I have already sentenced.

Other mitigating factors

[17]              I now turn to your personal circumstances as disclosed by a pre-sentence report, cultural report, and an alcohol and drug assessment report.

[18]              You were 20 when you committed these offences. You are now 23. On your behalf, Ms Johnson contends I should deduct between 15 to 20 percent in recognition of your age.

[19]              Discounts — including significant discounts — are sometimes made because an offender is young when he or she commits an offence. However, discount for youth

4      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [58]–[60].

5 At [62].

is not automatic. It turns on circumstance including, for example, whether the offending reflects youthful impulsivity or immaturity; direction from an older offender; or some other feature referable to young age.

[20]              I remain unpersuaded there is a basis for a discount having regard to your age. In short, there is nothing before me to ground the contention something about your circumstances, beyond the mere fact of your age, warrants a discount. As I will shortly explain, I do not doubt your deprived background contributed to the offending, and I will say more about that shortly.

[21]              For now, I note you were content to commit these (serious) offences. The probation officer who completed your pre-sentence report asked you whether you considered the possibility of hurting people when you committed the offending. You said you were focused on “completing the mission”. The probation officer said you sounded like you were referring to a video game. You agreed, adding that’s what it was like, and that you were under the influence of methamphetamine and alcohol at the time of the offending. However, you knew what you were doing: you said your motivation for the shootings was revenge; the offending was, as you put it, “tit for tat” in response to what the rival gang had done.

[22]              I add this. The starting point acknowledges you were not a leader in what happened. You were a follower. But again, you were very much part of what occurred. You participated to further retribution. The mere fact you were (and are) young does not warrant a discount in these particular circumstances.

[23]              Having said that, I turn to your deprived upbringing. I will not descend into too much detail on this topic. The reports reveal a depressingly familiar combination: exposure to family violence from a young age; similarly early exposure to drugs and alcohol; premature sexualisation; placements in and out of state care; and exposure to the wrong influences, including those of gangs. It is clear you considered gang culture attractive. Ms Johnson contends I should discount your sentence for these reasons, to the extent of 10 percent.

[24]              I accept that submission because your background has contributed to the offending. However, greater discount would invite consideration of public policy considerations given the intergang warfare aspect of your offending and your attraction to gangs.

[25]              Ms Johnson also contends I should deduct five percent for your rehabilitative efforts during your incarceration and in recognition of the prospect of rehabilitation given your age. I accept that submission too. I deduct five percent.

Personal aggravating factors

[26]              When you committed the offending, you had three earlier convictions for unlawfully interfering, getting into, or taking cars. In 2019, as you know, you committed aggravated robbery with a weapon. These convictions have relevance and warrant an uplift, meaning an increase, of three months. You were on bail when you committed this offending too. That is serious. You were then charged with breaching prison release conditions. I add another two months — so a total of five.

The sentence

[27]              Let me explain what  this all means.   I  adopt an overall starting point  of    six years’ imprisonment. I deduct  15  percent  for  your  guilty  pleas  and  another 15 percent for your background and prospect of rehabilitation. That produces a figure of 50.4 months’ imprisonment, which I round down to 50 months.  Finally,  I add  five months for the offences in your record that I talked of a little earlier, and the fact you committed the offending on bail.6 Your sentence is, therefore, 55 months’ imprisonment, or four years and seven months.

[28]              The seriousness of your offending and its nature could give rise to a minimum period of imprisonment, but because of your age I do not impose one.

[29]Mr Hiko, please stand:

6      As to sequencing, see Gray v R [2020] NZCA 548 and Mo’unga v R [2023] NZHC 1967.

(a)On the reckless discharge of firearms offences,  your  sentence  is  four years and seven months’ imprisonment.

(b)On the other offences, your sentence is 12 months’ imprisonment.

(c)These sentences run at the same time, so your effective sentence is four years and seven months.

[30]You may stand down.

……………………………..

Downs J