Russell v Police - [2020] NZHC 127

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
Appellant

AND

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…

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.

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Details

Case: [2020] NZHC 127
Decision Date: 11 February 2020

CaseChat Overview and Summary

Kodie Russell and Ethan Hokai appeal against their sentences of 18 months’ imprisonment imposed by the District Court for assault with intent to injure. They argued the starting point was excessive and the Judge failed to consider the principle of totality. The Court considered the sentencing principles applicable to serious offending in a prison environment and whether the sentence imposed was manifestly excessive. It found that the starting point was appropriate and the Judge’s failure to expressly mention the principle of totality was of no moment if the sentence imposed was not out of proportion to the gravity of the offending. The Court was satisfied the Judge would have considered the issue. The appeals were dismissed.

Orders