IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2020-412-000001
[2020] NZHC 127
BETWEEN KODIE REECE RUSSELL
Appellant
AND
NEW ZEALAND POLICE
Respondent
CRI-2019-412-000042 BETWEEN
ETHAN JAMES HOKAI
AppellantAND
NEW ZEALAND POLICE
Respondent
Hearing: 3 February 2020 Appearances:
M A Stevens QC for the Appellant Russell A Dawson for the Appellant Hokai
R Smith for the Respondent
Judgment:
11 February 2020
JUDGMENT OF NATION J
Introduction
[1] The appellants, Kodie Russell and Ethan Hokai, pleaded guilty to a joint charge of assault with intent to injure. In a decision of 24 September 2019, Judge Flatley in the District Court sentenced each of them to 18 months’ imprisonment.1 The
1 Police v Hokai and Russell [2019] NZDC 19067.
RUSSELL & HOKAI v POLICE [2020] NZHC 127 [11 February 2020]
appellants both appeal that sentence on the basis the starting point was excessive and the Judge did not consider totality.
Facts
[2] The appellants and the victim are prisoners at the Otago Correctional Facility. On 18 April 2019, all three were in the exercise yard. Mr Hokai approached the victim and kicked him. At the same time, Mr Russell punched the victim in the side of the head. The victim was on the ground and shielded himself with his arms, while the appellants continued to punch and kick him for nearly 40 seconds. The assault stopped when a Corrections Officer arrived.
[3]The victim suffered a swollen lip, abrasions to the face and a loose tooth.
District Court decision
[4] Judge Flatley considered the aggravating features of the offending were that there were attacks to the head, there were two on one, the level of violence, the prolonged nature of the attack and the vulnerability of the victim. He assessed the offending as falling within the second band of Nuku v R, and adopted a 24 month starting point for both appellants.2 That starting point also took into account the need for a strong deterrent sentence where offending has taken place in prison, to reinforce the importance of prison discipline and the protection of vulnerable inmates.
[5] The Judge considered Mr Hokai’s criminal history, including his current sentence for violent offending, and decided not to make an uplift in respect of that aggravating factor. He was conscious not to engage in double counting given Mr Hokai was already serving a lengthy sentence for violent offending, and to achieve parity between the appellants. However, the Judge refused to grant any discount because the appellants had already had prison privileges removed from them in response to the offending.
[6] The appellants were given a full discount for their guilty pleas, resulting in an end sentence of 18 months’ imprisonment respectively, imposed cumulatively on their current sentences.
Principles on appeal
[7] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011, and must be determined in…
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- Case
- [2020] NZHC 127
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