Rako v R

Case [2015] NZCA 463 28 September 2015

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA367/2015
[2015] NZCA 463

BETWEEN	ABRAHAM RAKO Appellant
AND	THE QUEEN Respondent

Hearing:	21 September 2015
Court:	Harrison, Dobson and Gilbert JJ
Counsel:	D J Matthews and T Singh for Appellant M J Lillico for Respondent
Judgment:	28 September 2015 at 10 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

Introduction

Following a trial before a Judge and jury in the Auckland District Court, Mr Rako was found guilty of 11 charges of using a document to obtain a pecuniary advantage. He also pleaded guilty to theft, unlawfully converting a motor vehicle, unlawfully taking a motor vehicle and driving while forbidden. Judge Dawson convicted and sentenced Mr Rako to two years and nine months’ imprisonment for these offences.[1] Mr Rako appeals against this sentence on the ground that it was manifestly excessive.
[1]R v Rako [2015] NZDC 10138.
The Judge adopted a starting point of 18 months’ imprisonment for the lead offending, being the 11 offences of using a document to obtain a pecuniary advantage. He applied an uplift of three months’ imprisonment for Mr Rako’s prior convictions for similar offending. The Judge imposed cumulative sentences of six months’ imprisonment for each of the offences of unlawfully taking a motor vehicle and conversion of a motor vehicle. A concurrent sentence of six months’ imprisonment was imposed for the theft. Mr Rako was convicted and discharged for driving while forbidden.
Mr Rako argues that the starting point for the lead offending of 18 months’ imprisonment was too high and should have been 12 months’ imprisonment. He accepts the uplift for his previous convictions and the starting points adopted for the offences involving the motor vehicles and the theft. However, he contends that the Judge was wrong not to allow a discount of 25 per cent for his early guilty pleas to these lesser charges. This would have reduced the effective end sentence by three months’ imprisonment.

Starting point

The Judge briefly summarised the facts relating to the lead offending as follows:
[2]       With respect to the first set of charges, the victim in this matter arrived as a tourist from the United States to New Zealand on 7 February 2013. While travelling on a train from Auckland, she met you and became friendly with you and you encouraged her to stay with you and you swapped mobile telephone numbers. As a result, on 12 February 2013 she arrived at your home address in Weymouth and lived with you there until 21 February 2013.
[3]       She had a Redwood Credit Union debit card in her name and she was the only person authorised to use that card. She never gave anyone else any authorisation to use that card or access to her bank account. Her card was stored in her backpack when she was not using it and that backpack was left in the house she was living at with you.
[4]       She…

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 Rako v R

Details

AGLC: Rako v R [2015] NZCA 463
Case: [2015] NZCA 463
Decision Date: 28 September 2015 at 10 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, Abraham Rako, contested the sentence imposed on him by Judge Dawson in the Auckland District Court. Mr Rako had been found guilty of 11 charges of using a document to obtain a pecuniary advantage, as well as other charges including theft, unlawfully converting a motor vehicle, unlawfully taking a motor vehicle, and driving while forbidden. The trial judge sentenced Mr Rako to two years and nine months’ imprisonment, a sentence which Mr Rako now appeals, claiming it was manifestly excessive. The Court of Appeal was required to determine whether the starting point for the lead offending was too high, and whether a discount for early guilty pleas should have been applied.

The Court of Appeal found that while the starting point for the lead offending was at the top of the acceptable range, it was not manifestly excessive. The offending was persistent and premeditated, involving a cynical breach of trust. The Judge did not err in not allowing a discount for Mr Rako’s early guilty pleas to the three lesser offences, as this was offset by the fact that he did not apply an uplift to recognise that these offences were all committed while Mr Rako was on bail for the more serious offences. The Court further found that the sentence was within the range of the Judge’s sentencing discretion and was not manifestly excessive. The appeal was dismissed.

Orders