R v Koteka - [2014] NZHC 2727

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 Defendant

Sentence:

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…

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 Koteka

Details

AGLC: R v Koteka [2014] NZHC 2727
Case: [2014] NZHC 2727
Decision Date: 31 October 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Mr. John Koteka was convicted of seven offences, including receiving stolen property, assault with intent to rob, aggravated robbery, reckless discharge of a firearm, and aggravated assault. The court was required to determine the appropriate sentence for these offences, considering the cumulative effect of a prior sentence imposed by Judge Ryan in April 2014 for two counts of aggravated robbery. The court had to ensure that the total period of imprisonment was not wholly disproportionate to the gravity of the offending taken as a whole.

The court began by determining the sentence it would impose for the current offences, leaving aside the prior sentence. It selected the aggravated robbery at the top of Mt Eden as the lead offence, as it was the most serious. The court considered the inherent culpability and wrongdoing in the offending, the need to hold the offender accountable, deter the offender and others from repeating the offending, and to impose the least restrictive sentence possible in the circumstances. The court also took into account the offender's prior convictions and the sentences imposed in similar cases. After considering these factors, the court determined a starting point of four and a half years for the lead offence, and a total end sentence of seven years for the current offences.

The court then considered the totality of the sentences, taking into account the prior sentence imposed by Judge Ryan. It determined that a cumulative sentence of seven years would result in a total period of imprisonment that was wholly disproportionate to the gravity of the overall offending. The court therefore imposed a lesser period, sufficient to render the total period of imprisonment proportionate. The court considered the sentence the Court would have imposed had Judge Ryan sentenced the offender on all offending in April 2014, and determined that an additional two to three years' imprisonment would be appropriate.

The final sentence imposed by the court was 13 years, three months and two weeks' imprisonment, broken down as follows: 10 years, nine months and two weeks' imprisonment to be served concurrently on each of the aggravated robberies before Judge Ryan; two years six months' imprisonment in respect of the aggravated robbery at the top of Mt Eden on 17 February 2014, to be served cumulatively on the sentence referred to in (a) above; 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; 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; and six months' imprisonment on each other count, all to be served concurrently with the sentence referred to in (b) above. The court also imposed a minimum non-parole period of one year, two months' imprisonment, cumulative on the period that Judge Ryan imposed, giving a total minimum non-parole period of six years six months.

Orders