R v Houia - [2018] NZHC 1056

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2016-019-5890

[2018] NZHC 1056

THE QUEEN

v

DANIEL TAI HOUIA

Hearing: 15 May 2018

Appearances:

J N Foster and R L Mann for Crown R Fairbrother QC for Prisoner

Judgment:

15 May 2018

SENTENCING NOTES OF JAGOSE J

Solicitors/Counsel: Almao Douch, Hamilton
R Fairbrother QC, Napier

R v HOUIA [2018] NZHC 1056 [15 May 2018]

[1] Mr Houia, you have pleaded guilty to one charge of aggravated robbery,1 which carries a maximum sentence of 14 years’ imprisonment. I am now going to sentence you on that charge.

[2] You – along with a father and son known to you, both named Lance Bush – were initially charged with murder. But on 16 April this year, the first day of your trial, the Crown, with the leave of the Court, withdrew that charge, and you pleaded guilty to aggravated robbery. A conviction was entered by Justice Edwards at the time your plea was taken, and Her Honour also gave you a first strike warning.2

[3] I have listened to what counsel have to say, both for you and for the Crown. Before taking into account your personal factors, the Crown says a starting point of five years’ imprisonment is appropriate. Your counsel, Russell Fairbrother QC, recommends a lower starting point of two to three years’ imprisonment.

[4] However, I am not bound by counsels’ recommendations. I must satisfy myself of the appropriate sentence for the gravity – or seriousness – of your offending, including your culpability – or responsibility – for it.

The facts of your offending

[5]Mr Houia, I first outline the facts of your offending.

[6] You pleaded guilty to a revised summary of facts dated 10 April 2018. It records Mr Bush Snr formed an intention to steal a Ford Fairmont car valued at $800 from the victim, Brent Paul Brown. This was the subject of discussion between you and Mr Bush Snr a week before the offending.

[7] The aggravated robbery occurred on the evening of 31 August 2016. You visited the victim’s property along with the two Bush men. Your intention was clearly to steal the vehicle. But you played a different role in the offending to the Bushes. They went inside to detain Mr Brown. (I return to what happened inside in a moment.)

1 Crimes Act 1969, s 235(1)(b).
2 Sentencing Act 2002, s 86A and B.

[8] You stayed outside the property. Your job was to take Mr Brown’s car. The car was parked inside a residential property, but readily accessible from the street. After overcoming its immobiliser to render it towable, you tied his vehicle to a white utility van, in which you three arrived, to be ready to tow it away.

[9] After the Bushes left the property, you all drove away together, towing Mr Brown’s vehicle behind you. In the aftermath of this incident, you took responsibility for disposing of the stolen vehicle.…

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 Houia

Details

AGLC: R v Houia [2018] NZHC 1056
Case: [2018] NZHC 1056
Decision Date: 15 May 2018

CaseChat Overview and Summary

In the case of R v Houia, the defendant, Daniel Tai Houia, was sentenced for his involvement in an aggravated robbery that resulted in the death of the victim, Brent Paul Brown. Initially charged with murder, Houia pleaded guilty to the lesser charge of aggravated robbery after the Crown withdrew the murder charge on the first day of the trial. The court had to determine the appropriate sentence for the aggravated robbery charge, considering the gravity of the offence and Houia's personal circumstances. The primary legal issue was to ascertain the appropriate starting point for the sentence, taking into account the nature and circumstances of the offence, and then adjusting that starting point based on mitigating and aggravating factors.

The court determined a starting point of four years’ imprisonment, rejecting the defence counsel's argument for a lower starting point based on Houia's peripheral role in the planning. The court found that Houia's involvement, while not directly violent, was integral to the aggravated nature of the robbery. The court also considered personal factors, including Houia's lengthy criminal history and his recent convictions for violence and trespass, which led to a modest uplift of the starting point by two months. A discount for the guilty plea was applied, resulting in a final sentence of three years and four months’ imprisonment. Additionally, the court ordered Houia to pay reparations of $1,000 to the victim's family.

The final orders of the court were that Daniel Tai Houia be sentenced to three years and four months’ imprisonment for the charge of aggravated robbery and that he pay reparations of $1,000 to the Crown, to be distributed to the victim's family.

Orders