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Solicitor-General v Kaokao

Solicitor-General v Kaokao

Case [2019] NZHC 2352 18 September 2019

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-000293

[2019] NZHC 2352

BETWEEN
SOLICITOR-GENERAL

Appellant

AND

JOSEPH KATAINA KAOKAO

Respondent

Hearing: 26 August 2019

Appearances:

E Hoskin for the Appellant

S Tait and J Hudson for the Respondent

Judgment:

18 September 2019

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Wednesday, 18 September 2019 at 11:00 am.

Registrar/Deputy Registrar Date:

Solicitors: Crown Law, Wellington Counsel: S Tait, Barrister, Manukau City

SOLICITOR-GENERAL v KAOKAO [2019] NZHC 2352 [18 September 2019]

[1] On 28 April 2018, Joseph Kataina Kaokao was given a sentence indication of three years and nine months’ imprisonment on charges of sexual violation by unlawful sexual connection and sexual violation by rape. The victim was a friend who fell asleep on his couch following a party in 2009. On 4 May 2018, Mr Kaokao pleaded guilty to both charges. On 29 May 2019, Mr Kaokao was sentenced to 12 months’ home detention and 200 hours’ community work. The Solicitor-General now appeals against the sentence on the basis that:

(a)The Judge granted a discount for remorse and rehabilitation, which was excessive and contrary to established authority; and

(b)The Judge erred by grouping all discounts for mitigating factors together, rather than discounting for a guilty plea after all other factors had been considered. This produced a sentence that was manifestly inadequate in the circumstances.

Summary of facts

[2] The respondent and victim are known to each other and had been friends for a number of years at the time of the offending. The victim’s best friend is married to the respondent’s brother.

[3] On Saturday 11 July 2009, the respondent and the victim both attended the thirtieth birthday party of the respondent’s partner. In the early hours of Sunday 12 July 2009, a number of people returned to the respondent’s home address and continued to drink in the garage. The respondent and victim were both intoxicated by this stage. The victim decided to stay the night at the address, as her vehicle was parked somewhere else.

[4] The victim went to sleep on a couch in the living room. The respondent went to sleep with his partner in another room. The victim was wearing a dress with tights and underwear when she went to sleep. She was woken by the respondent performing oral sex on her. Her tights and underwear were on the floor and the respondent’s mouth was on her genitalia. The victim was in shock and did not react. The respondent crawled on top of her and inserted his penis into her vagina. The respondent then had

sex with the victim and ejaculated inside her. During the incident, the respondent and victim did not speak to each other. After the respondent ejaculated, he left and returned to his own room. When spoken to eight years later, the respondent stated that he did not remember the details of the incident as he was intoxicated, but stated that…

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 Solicitor-General v Kaokao

Details

AGLC: Solicitor-General v Kaokao [2019] NZHC 2352
Case: [2019] NZHC 2352
Decision Date: 18 September 2019

CaseChat Overview and Summary

The case of Solicitor-General v Kaokao concerns an appeal by the Solicitor-General against the sentence imposed on Joseph Kataina Kaokao, who was convicted of sexual violation by unlawful sexual connection and sexual violation by rape. The sentencing judge had imposed a sentence of 12 months' home detention and 200 hours' community work. The appeal centred on two issues: the size of the discount given for remorse and rehabilitation, and the methodology used to apply the discount for Kaokao's guilty plea. The High Court found both issues to be material errors, leading to a manifestly inadequate sentence.

The Court first examined the discount for remorse and rehabilitation, which was 26%. The Crown argued this was excessive and not supported by authority. The Court found the discount was too generous, especially since it was awarded on top of a 16.6% discount for good character. Such large discounts are usually reserved for extreme mitigating circumstances, such as youth or time spent on restrictive bail. The Court concluded that a 33% total discount for Kaokao's personal mitigating factors was appropriate.

The Court then considered the methodology used to apply the discount for Kaokao's guilty plea. The sentencing judge had grouped all discounts together and applied them simultaneously, following the approach in Reweti v R. The Crown submitted that the orthodox approach of applying the guilty plea discount after other factors should have been used. The Court agreed, finding the Reweti approach inappropriate since the discounts granted were already generous and the offending warranted a custodial sentence.

In conclusion, the Court found the sentence of 12 months' home detention and 200 hours' community work to be manifestly inadequate. It imposed a sentence of two years and six months' imprisonment, reduced by six months for time already served on home detention and community work.

Orders