SOLICITOR-GENERAL AND PETER KOSETATINO - [2024] NZHC 1464

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-000063

[2024] NZHC 1464

BETWEEN
SOLICITOR-GENERAL

Appellant

AND

PETER KOSETATINO

Respondent

Hearing: 20 May 2024

Appearances:

Z R Hamill and W J Harvey for Plaintiff

S R Norrie and L R Brown for Respondent

Judgment:

5 June 2024

Reissued:

20 November 2024

JUDGMENT OF ANDREW J

This judgment was delivered by Justice Andrew
on 5 June 2024 at 3.00 pm and re-issued on 20 November 2024 pursuant to r 11.5 of the High Court Rules 2016

Registrar / Deputy Registrar Date …………………………….

SOLICITOR-GENERAL v KOSETATINO [2024] NZHC 1464 [5 June 2024]

Introduction

[1] The Solicitor-General appeals against a sentence imposed by the District Court1 in respect of two charges of aggravated robbery, one charge of sexual violation by rape and one charge of threatening to kill.2

[2] The appellant, Mr Kosetatino, was 17 years old at the time of the offending. He has no previous convictions. The District Court Judge adopted a starting point for her sentence of 11 years three months’ imprisonment. She then applied discounts totalling approximately 80 per cent, reaching an end sentence of two years, two months’ and one week imprisonment.

[3] The Solicitor-General contends that this was very serious offending and that the Judge erroneously gave separate and excessive discounts for overlapping personal features. She says these discounts were disproportionate to the starting point and the seriousness of the offending, resulting in a manifestly inadequate sentence.

[4] The Solicitor-General says that the minimum available end sentence was the end point adopted by the Judge in her sentence indication, namely three years and 11 months’ imprisonment.

Factual background

The offending

[5] At 1.00 am on 2 November 2022, Mr Kosetatino and an associate approached two members of the public (the first two victims) who were sitting on a bench in Albert Park, central Auckland. Both offenders were wielding knives. Mr Kosetatino held his knife to the chest of one victim; his associate held his knife at the other victim’s throat. They demanded the victims hand over all their property, and robbed them of their phones, a small amount of cash and cards, and some other personal items. The two offenders then left the park.

1 R v Kosetatino [2023] NZDC 28287. [Sentencing decision].
2 Crimes Act 1961, s 235(b): maximum penalty of 14 years’ imprisonment (aggravated robbery); Crimes Act 1961, ss 128(1)(a) and 128B(1): maximum penalty of 20 years’ imprisonment (sexual violation by rape); Crimes Act 1961, s 306: maximum penalty of seven years imprisonment (threatening to kill or do grievous bodily harm).

[6] Mr Kosetatino and an associate returned to Albert Park around 1.00 am five days later, again both armed with knives. They approached two members of the public, EF and GH (the second two victims), who were walking together in the park. They told the victims not to move or they would be stabbed, then ordered them to the ground. Mr Kosetatino’s associate robbed GH…

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: [2024] NZHC 1464
Decision Date: 5 June 2024

CaseChat Overview and Summary

The appeal in the matter of the Solicitor-General against Peter Kosetatino was heard in the High Court of New Zealand. The appeal was brought against a sentence imposed by the District Court on Kosetatino, who was convicted of two counts of aggravated robbery, one count of sexual violation by rape, and one count of threatening to kill. The Solicitor-General argued that the sentence, which was two years, two months, and one week of imprisonment, was manifestly inadequate given the seriousness of the offenses. The District Court had applied significant discounts to the starting point sentence of eleven years and three months, resulting in an end sentence that the Solicitor-General deemed disproportionate to the gravity of the offenses.

The court examined the principles governing Crown appeals in sentencing, emphasizing that such appeals are not for borderline cases and are intended to maintain consistency in sentencing. The court noted that a sentence should only be increased if it is manifestly inadequate or if there is an error of principle in the sentencing judge's approach. The court also highlighted the importance of considering the totality of the discounts and avoiding double counting when applying mitigating factors.

In this case, the court found that the District Court judge had erred in applying excessive and overlapping discounts for mitigating factors such as youth, previous good character, and rehabilitation. The court determined that the combined discounts, which exceeded 50% even before applying the guilty plea discount, resulted in a sentence that was manifestly inadequate. The court concluded that the end sentence did not accord with the lowest range of appropriate sentences and was disproportionate to the starting point and the seriousness of the offenses.

Accordingly, the appeal was allowed, and the High Court substituted the District Court sentence with a sentence of three years and eleven months' imprisonment, consistent with the end point adopted by the District Court in its sentence indication. The court emphasized the need for an overall proportionate sentence that appropriately reflects the purposes and principles of the Sentencing Act 2002.

Orders