R v Koteka
[2014] NZHC 2727
•31 October 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-004-4210 [2014] NZHC 2727
THE QUEEN
v
JOHN KOTEKA
Hearing: 31 October 2014 Appearances:
W P Cathcart for Crown
P J Kaye for DefendantSentence:
31 October 2014
SENTENCING REMARKS OF PETERS J
Solicitors: Meredith Connell, Auckland
Counsel: P J Kaye, Auckland
R v KOTEKA [2014] NZHC 2727 [31 October 2014]
Introduction
[1] Mr Koteka, on 27 August 2014 you were found guilty of seven offences – one of receiving, one of assault with intent to rob, two of aggravated robbery, one of reckless discharge of a firearm and two of aggravated assault.1 I presided over your trial so I am familiar with the facts.
[2] The gist of the case was that on 17 February 2013 you were driving a blue Holden Commodore that had been stolen from Avis Rental Cars and which the jury ultimately found you had “received”. Using that vehicle for transport, you:
(a) Went to the Domain where you assaulted a tour operator, Mr Qi, with intent to rob him. You approached Mr Qi from behind, grabbed him by the collar, pressed a gun into his side and asked for money.
(b)From there you went to Mt Eden where you stopped beside a Mr Lee, pointed the gun at him and demanded money. He gave you $160 and his cell phone. You got out of the car and patted him down, looking for more items. You then got back in the car and drove off.
(c) From there you then went to the top of Mt Eden, confronted a group of tourists and stole a woman’s handbag containing amongst other things her passport, credit cards, approximately USD $3,800 in cash, a camera, cell phone and iPad.
(d)You then demanded that the other tourists give you money, which they did not, and when one of the tourists attempted to retrieve the bag you fired five shots into the ground.
(e) You then got into the car and people attempted to stop you leaving.
Your actions then form the basis of the two aggravated assault charges.
[3] All of your victims were Asian and it is clear you were targeting them.
1 Crimes Act 1961, ss 246, 236(1), 235, 53(3) and 192(1)(c).
[4] The particularly dangerous feature of your offending is that you had a loaded firearm. You used it to scare Mr Qi and Mr Lee and then as I have said fired it five times, into the ground, to scare off the tourists. And you did all of this on a Sunday afternoon in summer, when many people were out and about enjoying Mt Eden.
[5] The car was recovered in Onehunga the following day, burnt out.
[6] The offending of which you were found guilty required me to give you a first strike warning which I did when I entered the convictions.
[7] I have considered the very helpful victim impact statements provided by the Crown. Not surprisingly the victims found your behaviour and the presence and use of the gun terrifying, as anyone would.
[8] After you were found guilty I ordered a pre-sentence report. Quite frankly the one I have received is little use because you refused to be interviewed. I have, however, been greatly assisted by the submissions made by the Crown and by Mr Kaye your counsel.
[9] In the usual course of events, I would turn now to sentence you on the seven charges, and impose a term of imprisonment. How we proceed today, however, is greatly affected by the fact that you are already in prison on two counts of aggravated robbery, committed in the course of two home invasions, with a co- offender in March 2010, so three years before the offending with which I am concerned. Judge Ryan in the District Court sentenced you for that offending in April 2014 and the Judge sentenced you to 10 years’ nine months and two weeks’ imprisonment, with a minimum non-parole period of five years, four months.
[10] That raises the issue of how it was that, three years after that offending, you came to be out and about in Mt Eden in February 2013. You came to be out because, although initially you were remanded in custody for the March 2010 offending, you were released on bail in November 2012. You were released because your trial on the March offending could not proceed as it was meant to – through no fault of your own I add. So you were released on bail and this offending followed.
Summary
[11] As I have said, how we proceed today is affected by the fact that you are already in custody and that raises particular issues under the Sentencing Act 2002. Those issues come down to this.
[12] The first is that both counsel and I agree that the sentence I impose on you today is to be additional or cumulative with the one imposed by Judge Ryan. That is because the two sets of offending are distinct.
[13] The second issue is that the law requires me to ensure that the total of the two sentences – Judge Ryan’s and mine – do not result in a total period of imprisonment that is wholly disproportionate to the gravity of the offending taken as a whole.2 In legal parlance, I am required to consider and adjust for “totality”.
[14] In the written sentencing note that I am going to distribute I shall:
(a) determine the sentence I would impose, leaving Judge Ryan’s
sentence to one side;
(b)consider whether to require you to serve that sentence, in addition to Judge Ryan’s, would be wholly disproportionate to the gravity of all of the offending taken together; and if it is
(c) reduce the sentence to a level that makes the total period of imprisonment proportionate.
[15] I do not propose to address each of these matters in what I say to you today. I
propose to give you the conclusions rather than the entire reasoning process, which will be set out in the written note.
2 Sentencing Act 2002, s 85.
Prior Convictions
[16] If I leave aside the convictions today, you have 20 prior convictions which you have committed in spates. You committed several in 1993 and 1994, there was then a gap until 1999/2000 and then there was another gap until the aggravated robberies in 2010. What that indicates to me Mr Koteka is that you are quite capable of conducting yourself within the law if you choose to and I very much hope that at the conclusion of this sentence you will choose that path.
[17] I add that some of the prior convictions are for aggravated robbery – that is the March 2010 offending and some of the offending back in 1999 and 2000.
Sentencing leaving Judge Ryan’s sentence to one side
[18] On the orthodox approach, I would select a “lead offence” and determine the appropriate starting point for that offence having regard to the inherent culpability and wrongdoing in the offending, uplift for the other offending and then adjust – up or down – to reflect any factors personal to you.
[19] In fixing a starting point, I must bear in mind the need to hold you accountable for your offending, to deter you and others from repeating it and particularly to deter you and others from driving around with a loaded gun in your car and discharging it. I must take into account the gravity and seriousness of the offending, consider sentences imposed in similar cases so that you are treated consistently with others and impose the least restrictive sentence possible in the circumstances.
[20] I shall take the aggravated robbery at the top of Mount Eden as the lead offence as it is the most serious.
[21] The Crown submits that the appropriate starting point for all of your offending on 17 February 2013 would be nine years’ imprisonment. Mr Kaye submits that it would be six years.
Lead offence
[22] I would adopt a starting point of four and a half years for the lead offence. In reaching that starting point I am assisted by several authorities.
[23] The first is the Court of Appeal’s decision in R v Mako.3 In that case the Court of Appeal identified features of aggravated robbery which, when present, are to be taken into account in fixing a starting point. In the case of your offending at the top of Mt Eden they include the presentation of a loaded gun (although not its discharge, that is a separate offence) and the presence of members of the public. The presence of members of the public made the offending more serious than the street robbery example given in [59] of Mako.
[24] Secondly, the Court of Appeal’s decision in R v Walker is helpful.4
[25] Mr Walker was sentenced for three aggravated robberies, a burglary and unlawful conversion of a motor vehicle.
[26] The aggravated robberies were committed after 11 pm and all followed the same pattern. They pulled up next to a woman, Mr Walker got out of the car armed with a knife, demanded money and took the woman’s handbag.
[27] The District Court Judge imposed a starting point of five years for the aggravated robbery offending – which the Court of Appeal upheld.
Other offending
[28] I would then increase your starting point for the other offending. In Walker, the District Court Judge added two years for the burglary and conversion charges, and for Mr Walker’s previous convictions – the number of which far exceeded your own. I would add two years for the other offending, giving a starting point of six
and a half years. I would uplift by six months for prior convictions, not to punish
3 R v Mako [2000] 2 NZLR 170; (2000) 17 CRNZ 272 (CA).
4 R v Walker [2009] NZCA 56.
you twice for those offences but because it is obvious that other sentences have not deterred you.
Factors relating to offender
[29] There are no other aggravating or mitigating factors relating to you personally which would warrant an adjustment.
[30] This means that you would be given an end sentence of seven years for the offending for which you are for sentence today.
Totality
[31] If I were to impose a cumulative sentence of seven years, your total period of imprisonment would be 17 years, nine months and two weeks.
[32] Crown counsel, Mr Kaye and I agree that a cumulative sentence of that length would result in a total period of imprisonment wholly out of proportion to the gravity of your overall offending. As a result, s 85 Sentencing Act 2002 requires me to impose a lesser period, sufficient to render the total period of imprisonment proportionate.
[33] Counsel and I are also agreed that the correct manner in which to arrive at that period is to consider the sentence you would have received had Judge Ryan sentenced you on all offending in April 2014.
[34] The Crown submits that the Court would have imposed an additional three
years’ imprisonment. Mr Kaye submits two to three years.
[35] Judge Ryan’s sentencing note records that the Judge adopted a starting point for both aggravated robberies of 11 years and added 12 months for your relevant prior convictions. The Judge allowed a 14 and a half month (10 per cent) discount for your guilty plea, giving a final end sentence of 10 years, nine months and two weeks. The Judge imposed that sentence on each charge, to be served concurrently.
[36] There is no doubt that the circumstances of the offending before Judge Ryan were vastly more serious than the charges before me. Both involved you and another offender, both were home invasions and both involved threatening the occupants with a gun. I consider Judge Ryan would have been likely to adopt a starting point for all the offending of 13 years six months’ imprisonment, retained her uplift of
12 months for prior convictions and then given the discount of 14 and a half months for your guilty pleas on the home invasions. Carrying that through, that would mean an end sentence of 13 years, three months and two weeks, with the same percentage minimum period of imprisonment.
Sentence
[37] That means your end sentence is 13 years, three months and two weeks broken down as follows:
(a) 10 years, nine months and two weeks’ imprisonment to be served
concurrently on each of the aggravated robberies before Judge Ryan;
(b)two years six months’ imprisonment in respect of your aggravated robbery at the top of Mt Eden on 17 February 2014, to be served cumulatively on the sentence referred to in (a) above;
(c) 18 months’ imprisonment in respect of the aggravated robbery of Mr Lee on the road to the summit of Mt Eden, to be served concurrently with the sentence referred to in (b) above;
(d)12 months’ imprisonment in respect of the assault with intent to rob Mr Qi in the Domain, to be served concurrently with the sentence referred to in (b) above;
(e) six months’ imprisonment on each other count, all to be served concurrently with the sentence referred to in (b) above.
[38] I impose a minimum non-parole period of one year, two months’ imprisonment, cumulative on the period that Judge Ryan imposed. This gives a total minimum non-parole period of six years six months.
[39] Stand down.
..................................................................
M Peters J