Russell v Police
[2020] NZHC 127
•11 February 2020
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.
2 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
[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 accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.3 As the Court of Appeal mentioned in Tutakangahau v R quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.4 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.5
Submissions
Appellants’ submissions
[8] The appellants submitted firstly that the starting point of 24 months was too high. Counsel accepted that the offending was properly assessed as band two of Nuku, which justifies a starting point of up to three years’ imprisonment. For Mr Russell, Mrs Stevens QC submitted that the offending was at the lowest end of that band. She argued that the violence used was only moderate, seemed to be directed more at showmanship than injury and the duration of the assault was relatively short. Both counsel noted the apparent absence of serious injury.
[9] Mrs Stevens also urged that caution should be exercised to avoid double counting in terms of the vulnerability of the victim, where that vulnerability related to his being in the prison environment but the fact the offending occurred in prison was, in itself, an aggravating feature of the offending. Mrs Stevens also suggested that the assault might be seen as less serious when it occurred in a situation where the
3 Criminal Procedure Act 2011, ss 250(2) and 250(3).
4 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
5 Ripia v R [2011] NZCA 101 at [15].
defendants would have known they were under surveillance, Corrections officers would in all likelihood intervene and there were likely to have been other prisoners around who might also have come to the victim’s assistance.
[10] Mr Dawson adopted the submissions of Mrs Stevens. He referred to Kepu v Police, where two prisoners seriously assaulted another inmate, including stabbing him multiple times.6 Mr Kepu did not stab the victim, but dealt him a number of punches to the head. On appeal, the Judge found the starting point of 15 months was too lenient.7 Mr Dawson submitted the present offending was far less serious than in Kepu because the assault was relatively brief, the victim suffered no serious injuries, there was no weapon used, and no clear element of premeditation. He argued that, even though the 15 month starting point in Kepu was considered lenient, the present starting point of two years was still too high in comparison.
[11] Both counsel submitted that a starting point of 15 to 18 months would be appropriate for the present offending. They sought support from the judgment of the High Court in Van Silfhout v Police.8 The Court there was dealing with a defendant who, with an associate, had attacked another inmate in an exercise yard at the prison. There was no one else present at the time. The two men punched and kneed the victim in the head on numerous occasions. They continued to do this until a prison officer observed what was going on and came to the rescue of the victim. The victim suffered bruising to his head and body, injuries to his ribs, pain under his rib cage and grazes and tenderness to the neck. The attack left him suffering from headaches and nausea. The sentencing Judge adopted a starting point of 18 months’ imprisonment. In the particular circumstances of that case, the Judge decided the sentence would be imposed concurrently with an existing sentence. There was no criticism of the starting point when the matter was before the High Court.
[12] The appellants’ second ground of appeal was that the Judge did not have regard to totality given the appellants were already serving a sentence of imprisonment on other charges. Counsel submitted that s 85(2) Sentencing Act 2002 creates a
6 Kepu v Police [2016] NZHC 2410.
7 At [32].
8 Van Silfhout v Police HC Tauranga CRI-2011-470-22, 2 September 2011.
mandatory requirement for the Court, when imposing a cumulative term of imprisonment, to ensure that the total period of imprisonment is not disproportionate to the gravity of the overall offending.
[13] Mr Dawson referred to the Court of Appeal judgment in Opetaia v R, where the Court suggested a sentencing Judge should consider what the appropriate end sentence would have been if they had been required to sentence the offender on all charges at the same time.9
[14] Mr Hokai was serving a sentence of five years and three months’ imprisonment for charges of aggravated robbery and injuring with intent to cause grievous bodily harm. After adding the 18 months imposed for the present offending, his effective end sentence is six years and nine months’ imprisonment. Mr Dawson argued that sentence was disproportionate to the gravity of Mr Hokai’s overall offending, and close to “crushing” on someone who was only 23 years old at the time the offence was committed and 20 when the earlier offending was committed. He argued the total period of imprisonment would have a major impact on Mr Hokai given he would be only in his 20s during that time.
[15] He submitted the appropriate sentence for the present offending, with regard to totality, would be 10 to 12 months’ imprisonment.
[16] Mr Russell was serving a sentence of three years’ imprisonment for dishonesty, arson, drug offending and escaping, plus the cumulative sentence of 18 months, which resulted in an effective end sentence of four and a half years for all offending. Mrs Stevens argued this was a disproportionate sentence for similar reasons to those submitted on behalf of Mr Hokai. She submitted an appropriate end sentence for Mr Russell would be 10 months’ imprisonment.
[17] Both counsel referred to the penalties the appellants faced through the sanctions imposed within the prison as a result of the incident. These included limited access to contact family and the ability to leave a cell for the exercise yard for only one hour each day, when that exercise yard was little more than a confined cage which
9 Opetaia v R [2013] NZCA 434 at [34].
gave them limited scope for real exercise and no contact with other people. Those sanctions were imposed for a period of 14 days.
Respondent’s submissions
[18] Mr Smith, for the respondent, submitted the starting point was justified. He said it was difficult to imagine a more serious example of assault with intent to injure that would not have resulted in a more serious charge. The attack lasted around 40 seconds, involved a substantial number of blows delivered in concert by two offenders, and continued well after the victim had been knocked to the ground. Mr Smith submitted the Judge was correct to assess this as involving a high level of violence, and noted the Judge was well placed to make that assessment given he viewed footage of the incident. In addition to the other aggravating factors identified, he submitted the fact the assault occurred within a prison was a serious aggravating feature.10 Given these features, Mr Smith contended the offending could be seen as falling within band three of Nuku. The starting point of two years was therefore well within range and perhaps even generous.
[19] Mr Smith further submitted that this was not a case where an adjustment for totality was required or appropriate.
[20] Mr Smith submitted that the appellants’ reliance on Opetaia was misplaced. The cumulative sentence in that case was imposed for offending that pre-dated the sentence already imposed, and none of the offending related to incidents occurring within a prison. Mr Smith contended that is a very different situation from the present case. He submitted the present case is more akin to Skipper v R where the Court of Appeal observed that the totality principle will have less application where the offending occurred after that for which the offender was first sentenced.11
[21] In regard to Mr Dawson’s final point about prison sanctions, Mr Smith submitted that it would not be appropriate for the Court to take account of that fact. He contended that the loss of privileges within the prison is a matter of prisoner
10 Lake v R [2017] NZCA 39, at [7].
11 Skipper v R [2011] NZCA 250, at [35]-[36].
management catered for under the Corrections Act 2004 and is vital to the effective and safe management of prisoners. Mr Smith was unaware of any authority, nor was any cited by the appellants, to support the proposition that the loss of privileges within the prison should be taken into account as a mitigating circumstance at sentencing.
[22] Given the precedents regarding prison offending and the circumstances of the present case, Mr Smith submitted that a cumulative sentence of 18 months’ imprisonment was not wholly out of proportion to the gravity of the overall offending in the case of either appellant. He contended that a higher starting point may have been available to the Judge, as well as uplifts for the appellants’ criminal histories. The end sentences were therefore well within range.
Analysis
[23]I accept this was a serious assault.
[24] The appellants had to be sentenced on the basis of the summary of facts. Through that, they accepted they had participated in “an orchestrated attack”. Mr Hokai approached the victim and kicked him. Simultaneously, Mr Russell punched the victim with a closed fist, connecting with the side of the victim’s head. It was a sustained attack. Mr Hokai punched the victim 33 times using his closed fists, the punches connecting with the victim’s head and body. While the victim was trying to protect his head and body, Mr Hokai continued to kick and knee the victim another eight times. Mr Russell punched the victim on 20 occasions using his closed fists, the punches connecting with the victim’s head and body. He also kicked and kneed the victim a further 12 times, connecting with the victim’s head and body.
[25] The Judge viewed the CCTV footage. The Judge appears to have been reasonably conservative in describing what happened as a “fairly brutal attack”. He appropriately said it could not be categorised as a “one-off violent attack”. The summary of facts referred to the victim sustaining a swollen lip, abrasions to his face and a loose tooth. Given the nature of the assaults, it would have been most surprising if this was the extent of the pain or injuries he suffered. The Judge said “it is not entirely clear what injuries the victim suffered, if any”, but did refer to the injuries just mentioned that were referred to in the summary of facts. In Nuku, the Court of Appeal
departed from earlier authority in saying the seriousness of an assault, such as occurred here, should not be assessed primarily according to the seriousness of the injuries inflicted.12
[26] There was no error in the Judge categorising the offending as band two, as discussed in Nuku v R. It involved attacks to the head, multiple offenders, an attack of a prolonged nature and a vulnerable victim, given the attack occurred when he was in prison and unable to escape or avoid the situation he was in. Consistent with that, the Judge noted the victim immediately went into a defensive position, attempting to shield his head with his arms and hands and attempting to walk about but eventually falling to the ground.
[27] In Van Silfhout, the High Court was dealing with a situation where a starting point of 18 months had been adopted for somewhat similar offending but, as Mr Smith pointed out, the Court there did not consider the appropriateness of that starting point.13 The issue on the appeal was whether, in the actual circumstances that had emerged, the sentencing Judge’s intention, that the appellant would not have to serve an extended time in prison with a further sentence, would be achieved with the end sentence that was adopted.
[28] It is important that judges endeavour to achieve consistency with sentences imposed for similar offending.
[29] On 25 November 2019, in R v Tapine, Venning J sentenced Mr Tapine on an amended charge of assault with intent to injure following his guilty plea.14 Mr Tapine had thrown the first punch against another inmate. The victim had fallen to the ground and was then attacked by two other inmates. Those inmates had shanks. As a result, the victim suffered a number of stab wounds. The Judge accepted Mr Tapine was not involved in the worst of the attack but he had thrown the punch which initiated the attack that followed. The Judge sentenced him on the basis it was a planned and premeditated attack. Mr Tapine’s role was to start the attack and to knock the victim
12 Nuku v R, above n 2, at [33].
13 Van Silfhout v Police, above n 8.
14 R v Tapine [2019] NZHC 3134.
down. The Judge accepted the Crown could not prove that Mr Tapine knew shanks were going to be used by the other two and that he was not directly responsible for the serious injuries caused to the victim. However, he noted that Mr Tapine had nevertheless attacked the victim’s head and both Mr Tapine and the co-defendant had assaulted the victim in a way that caused him to fall to the ground immediately. Mr Tapine had effectively set up the victim for an ongoing attack by the other two defendants. The victim also had a particular vulnerability in that he was handicapped by a prosthetic leg. The Judge adopted a starting point for the offence of two years’ imprisonment.
[30] In Karetu v R, the Court of Appeal was primarily concerned with whether or not there needed to be an adjustment to the imposed sentence on account of the need to consider totality.15 Mr Karetu was sentenced to four years and three months’ imprisonment on charges of injuring with intent to injure and wounding with intent to injure, and subsequently to nine years’ imprisonment on various sexual offences arising out of an earlier rape.
[31] Mr Karetu was convicted of injuring with intent to injure after he and another man went into the cell of a fellow inmate at the prison and beat him up, leaving the victim with a deep cut to his lip, swelling and grazes to the face. The sentencing Judge adopted a starting point of 18 months’ imprisonment for that offending but uplifted it to two years to give a deterrent affect to the sentence because it concerned prison discipline and the need to protect other vulnerable inmates.
[32] Mr Karetu had pleaded guilty to wounding with intent to injure. That related to an incident some four months later. Mr Karetu had confronted a prison officer in the dining room and blind-sided him with a single punch, leaving him with two open wounds inside his mouth. The punch also caused a brain injury. The officer needed treatment and was off duty for some months. The starting point adopted for that sentence was three years.
15 Karetu v R [2013] NZCA 408.
[33] I note the charges for which Mr Karetu was sentenced in both instances were more serious than were brought against the appellants here, with more serious maximum penalties. The charges brought and the sentence imposed nevertheless indicate how seriously the courts regard this sort of offending. A starting point of two years’ imprisonment was adopted for offending similar to what occurred here.
[34] Mr Karetu was subsequently sentenced to nine years’ imprisonment for the sexual offending arising out of the rape. That sentence was imposed cumulatively. The Court of Appeal dismissed the appeals against sentence.
[35] In Haeata v Police, the appellant was serving a sentence of imprisonment at the time of the offending.16 He became angry with two Corrections officers and took from his pocket a sock with two pool balls placed inside it. He began to swing the sock around aggressively, striking one officer on the head with it. Cooke J considered the offending fell within band two of Nuku given there was an attack to the head, use of a weapon, the victim was a public official and the offending occurred while he was serving a sentence of imprisonment. He adopted a starting point of 18 months on a charge of assault with intent to injure.
[36] In Tamihana v R, the Court of Appeal was concerned with a sentence imposed on an assault with intent to injure charge.17 Mr Tamihana and an associate were outside a bar. The associate became involved in an argument with the victim. He punched the victim in the face with a closed fist. The victim fell to the ground. The associate kicked him while he was on the ground. Mr Tamihana then ran up to the victim and kicked him once in the head. As a result of the assault, the victim suffered bruising and grazes to his head. The Judge adopted a starting point of 18 months’ imprisonment for Mr Tamihana’s offending.
[37] The Court of Appeal noted there was no guideline judgment for the offence of assault with intent to injure. The Court nevertheless acknowledged the relevance of guideline decisions on more serious charges. It considered Mr Tamihana’s offending was comparable to band two in Nuku. The Court considered the aggravating features
16 Haeata v Police [2019] NZHC 3268.
17 Tamihana v R [2015] NZCA 169.
were Mr Tamihana’s kick to the victim’s head and the fact he was acting in concert with an associate, so the victim was faced with two attackers. Thirdly, it considered the victim was vulnerable when he was kicked, lying defenceless on the ground. The Court however considered the offending was not at or towards the higher end of such offending. In contrast to the situation with these two appellants, it said the kick to the head was a one-off attack and there was no premeditation. Of assistance to my analysis, the Court of Appeal there considered sentences imposed for broadly similar offending by the High Court.18
[38] In Tamihana, the Court of Appeal decided the starting point of 18 months for Mr Tamihana’s offending was too high. They considered the starting point should have been 12 months. A significant factor in adopting that starting point however was that a 12 month starting point had been adopted for Mr Tamihana’s associate who had punched the victim to the face with a closed fist, causing him to fall to the ground, and then kicked the victim while he was defenceless on the ground, albeit not to the head area. The Court of Appeal considered the adoption of a starting point of 12 months for the associate and 18 months for Mr Tamihana was wrong in principle.
[39] In contrast to Mr Tamihana’s offending and that which was involved in the cases referred to by the Court of Appeal, this offending involved premeditation to a modest degree. There was nothing in the summary of facts to indicate the assaults occurred in a spontaneous response to something the victim had said or done. For the attack to be “orchestrated” and for both offenders to have simultaneously assaulted the victim, there had to be a degree of planning. Consistent with that, Mr Hokai told the probation officer who prepared the pre-sentence report that “the assault had been a stupid idea and had happened because the victim had got smart to him”. It was a significant aggravating feature that it occurred within the prison environment.
[40] I accept the fact that, with their loss of privileges and a period of 14 days in solitary confinement, Mr Hokai and Mr Russell were punished within the prison system for that offending. The fact their offending had this consequence for them can be considered by the Court in deciding what sentence should be imposed to achieve
18 Ransfield v Police [2014] NZHC 1046; Kojeunikov v Police [2013] NZHC 551; Kohu v Police
[2013] NZHC 944.
the purpose of deterrence and accountability. Mr Hokai and Mr Russell would have known when they were in prison that offending of this sort would bring inevitable penalties within the prison system of the sort they were subjected to. That obviously did not deter them from assaulting the victim as they did. The courts have recognised the need for a further deterrent sentence when a prisoner is being sentenced for the sort of offence that occurred here. The Court has taken that approach when inevitably the prisoner must also have been subject to sanctions within the prison system of the sort that occurred here.
[41] Having considered matters in this way, I conclude that the starting point adopted by the sentencing Judge was stern but within range.
Totality
[42] The Judge did not expressly say he had considered whether or not there should be a discount for totality. The failure of the Judge to mention the totality principle is of no moment if the sentence imposed is not out of proportion to the gravity of the offending.19 I am satisfied the Judge would have considered the issue.
[43] Sentencing judges had to consider whether and to what extent sentences should be cumulative or concurrent with regard to the totality principle in Lake v R, Karetu v R and Van Silfhout v Police.20 These cases were referred to by the Judge in his sentencing decision.
[44]Section 85 Sentencing Act 2002 states:
85 Court to consider totality of offending
(1)Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.
(2)If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.
19 Kite v R [2018] NZCA 485 at [21].
20 Lake v R, above n 10; Karetu v R, above n 15; Van Silfhout v Police, above n 8.
(3)If, because of the need to ensure that the total term of cumulative sentences is not disproportionately long, the imposition of cumulative sentences would result in a series of short sentences that individually fail to reflect the seriousness of each offence, then longer concurrent sentences, or a combination of concurrent and cumulative sentences, must be preferred.
(4)If only concurrent sentences are to be imposed,—
(a)the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and
(b)each of the lesser offences must receive the penalty appropriate to that offence.
[45] In Haywood v R, the Court of Appeal referred to “the imperative of s 85(2)”.21 With reference to Opetaia v R, the Court indicated it was necessary to stand back and consider whether, with a cumulative sentence, an effective end sentence would be proportionate or disproportionate to the gravity of the overall offending.22
[46] In Haywood, the appellant had been sentenced to seven years’ imprisonment for supply of methamphetamine. There was no appeal against that sentence. While on bail on that charge, he committed aggravated burglary and assault with intent to rob. Following a jury trial, he was sentenced to two concurrent sentences of six and a half years for those offences. The sentences were cumulative upon the earlier seven year sentence, creating an overall sentence of 13 and a half years’ imprisonment.
[47] In that instance, the Court considered it was relevant that, although two separate incidents were involved, the second and third arose while on bail for the first and all, to a degree, arose from the appellant’s dependence on methamphetamine. In that sense, the Court considered that, although the offences were separate and distinct, they were also a connected sequence of events. In Haywood, the Court of Appeal was not concerned with a cumulative sentence for violent offending while in prison on a sentence for the earlier offending.
21 Haywood v R [2015] NZCA 551 at [10].
22 Opetaia v R, above n 9, at [32].
[48] In Opetaia v R, Ms Opetaia had been sentenced on 2 November 2010 to nine years’ imprisonment on an array of charges including aggravated robbery, burglary and theft.23 On 3 April 2012, she was sentenced to a term of six years’ imprisonment on further charges of aggravated robbery and a charge of assault with intent to rob. The offending for which Ms Opetaia was sentenced to six years’ imprisonment occurred before the offending for which she was sentenced to nine years’ imprisonment. It was in those circumstances the Court of Appeal considered the Judge had been in error in not standing back and considering whether an effective end sentence of 15 years’ imprisonment was proportionate to the gravity of Ms Opetaia’s overall offending.
[49]In Karetu, the Court of Appeal said:24
A deterrent sentence was appropriate. As this Court said in Tryselaar, “[o]ffending in the prison environment, particularly where that offending goes to the maintenance of the discipline needed to effectively manage a penal institution, demands a stern response”.25 The point being made in Tryselaar was that it would undermine the need for a stern sentence to require an adjustment to reflect the fact the offender is already serving a sentence of imprisonment for other offending.
[50]In 2019, in Waru v R, the Court of Appeal stated:26
(1) As the Judge said, where an appellant has re-offended while in prison, the message from this Court has been clear and consistent. Such offending demands a stern response particularly where, as in this case, the offending goes to the maintenance of discipline needed to manage a prison effectively. As this Court commented in Kepu v R:
[19] Where actual violence occurs, prison officers must be entitled to the fullest measure of protection from the courts. Issues of deterrence and denunciation are then to the forefront of the principles that the courts must apply when offenders are sentenced. The sentences to be imposed in such cases must demonstrate to other prisoners that the courts will not tolerate unprovoked attacks on prison officers.
(2) The required stern response would be seriously undermined if sentences for re offending in prison required downward adjustment to reflect the fact that the offender is already serving a sentence of imprisonment. That message is all the more pertinent where, as in this case, the sentence the offender is serving is for previous violent offending in prison.
23 Opetaia v R, above in 9.
24 Karetu v R, above n 15, at [18].
25 Tryselaar v R [2012] NZCA 353 at [18].
26 Waru v R [2019] NZCA 347 (footnotes omitted)
(3) In giving Mr Nuku a sentence indication, Lang J commented in much the same terms as had Wylie J:
[18] Ordinarily, because the sentence would necessarily be cumulative, I would need to have regard to totality principles. Care must be taken in this context, because the Court of Appeal has made it plain that significant discounts to reflect totality principles may be counterproductive where offending occurs within a prison environment. In other words, if prisoners know that their sentence is likely to be reduced significantly if they offend whilst in prison, they have little incentive not to offend.
(Footnote omitted.)
Lang J made a similar remark when giving a sentence indication to Mr Briggs about a month later.
(4) We are unable to fault Wylie J’s approach which accords with the view this Court has consistently taken in cases involving reoffending in prison, particularly violent attacks on other inmates or prison officers.
[51] Mr Hokai was sentenced to five years and three months’ imprisonment on 17 November 2016 on charges of aggravated robbery and injuring with intent to cause grievous bodily harm. The Crown advised the offending involved a home invasion- type robbery where the victim was attacked with a hammer and struck in the head more than once. Mr Hokai’s other criminal offending was for offences of dishonesty. He was 23 at the time of the current offending.
[52] Mr Russell was sentenced to three years’ imprisonment on 28 March 2017 on 32 different charges. Seven of those charges involved theft of motor vehicles and five involved arson. That offending occurred between 21 December 2015 and 7 October 2016. The Crown advised the arsons involved setting stolen vehicles alight. Mr Russell was aged around 18 and 19 when that offending occurred. He was 22 when he offended in prison. He had an extensive history of criminal offending but not for offences of violence.
[53] The offending for which Mr Russell and Mr Hokai had to be sentenced in the District Court was distinct in time and circumstances from the earlier offending for which each were serving sentences of imprisonment.
[54] I have stood back and considered whether, in all the circumstances, the end sentence imposed cumulatively on the earlier sentences, was manifestly excessive. I do not consider that the end sentence imposed on Mr Hokai could be considered
lenient on the basis there was no uplift having regard to his previous violent offending. Such an uplift would not have been appropriate given this offending, having occurred while he was in prison for that offending, was taken into account as a significant aggravating factor.
[55] I have had particular regard to the ages at which both Mr Russell and Mr Hokai offended in connection with the offending for which they are already serving prison sentences and the subsequent offending in prison.
[56] In all the circumstances, I do not consider there was any error in the Judge arriving at the same sentence for both Mr Russell and Mr Hokai.
[57] Despite the thorough and careful submissions of their counsel, I have not been persuaded that the sentences imposed on each appellant were manifestly excessive. The appeals are dismissed.
Solicitors:
Public Defence Service, Dunedin Crown Solicitor, Dunedin.
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