HOKO v R [2017] NZCA 484

HOKO v R [2017] NZCA 484 [27 October 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA306/2017[2017] NZCA 484BETWEEN RICHARD JOHN HOKOAppellantAND THE QUEENRespondentHearing: 5 October 2017Court: Asher, Brown and Collins JJCounsel: S K Ellis for AppellantE J Hoskin for RespondentJudgment: 27 October 2017 at 10 amJUDGMENT OF THE COURTA The appeal against sentence is allowed.B The sentence of eight years' imprisonment imposed on the charges ofaggravated robbery and kidnapping is quashed and a sentence of six yearsand six months' imprisonment is imposed.C The minimum period of imprisonment of 60 per cent remains in place,which in the circumstances is three years and 10 months' imprisonment.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] Mr Hoko appeals his sentence of eight years' imprisonment imposed byJudge McDonald in the District Court at Whangārei on 24 May 2017.1 The sentence was imposed in relation to one charge of aggravated robbery2 and one charge of kidnapping.3 Mr Hoko was convicted of these charges following a jury trial before Judge Thorburn, who was not available to sentence Mr Hoko.[2] We have concluded the sentence imposed was manifestly excessive. Wetherefore allow the appeal and substitute the sentence of eight years' imprisonment with one of six years and six months' imprisonment. The minimum period of imprisonment (MPI) of 60 per cent is to remain in place.Background[3] At about 8.30 am on 18 August 2014 the complainant was parking her car incentral Whangārei. After she parked her car, Mr Hoko, whom she did not know, got into the front passenger seat. He was wearing a hooded sweatshirt and dark sunglasses. He had a knife with a 10 cm blade which he put to the side of thecomplainant's stomach and directed her to drive away. When she asked if he was planning to hurt her Mr Hoko said that he would not do so if she did as she was told.[4] Mr Hoko directed the complainant to park her car and climb into the passenger seat. He used her cell phone cord to tie her hands to the car handbrake before rifling through her handbag. While doing this Mr Hoko told the victim shewas "sexy", which added to her fear and anxiety as to what he was going to do to her. Mr Hoko found the complainant's EFTPOS card and demanded she give him the PIN number. He then drove to an ATM and used the complainant's card to withdraw $120.[5] Mr Hoko then drove the victim back to the Whangārei central business district, cut the straps from her handbag and used those straps to tie thecomplainant's hand to the gearshift. He then told the complainant that she had to1 R v Hoko [2017] NZDC 10838.2 Crimes Act 1961, s 235(c); maximum penalty 14 years' imprisonment.3 Section 209(b); maximum penalty 14 years' imprisonment.wait in her vehicle until he had crossed the road and that if she left earlier he would cut her and that if he saw her around town he would run her over.[6] The effect on the complainant of Mr Hoko's offending was traumatic. She suffered very significant psychological trauma and has been substantially incapacitated since the time of the offending. She has not been able to work and hassuffered health issues as a result of Mr Hoko's actions.The sentencing decision[7] Judge McDonald elected to treat the aggravated robbery charge as the lead offence, albeit correctly observing that either charge could have been treated as the lead offence for sentencing purposes. Applying R v Mako,4 Judge McDonald set astarting point of six years and six months' imprisonment. In doing so, the Judge took into account the following aggravating factors: the planning and premeditationinvolved in Mr Hoko's offending; the use of a weapon and disguises; the vulnerability of the victim; the kidnapping of the victim; the effects of the offending on the victim; and, the need to set a sentence that would deter Mr Hoko and others from similar offending.5[8] In determining whether an uplift from this point was required on account of any personal aggravating factors, the Judge then traversed aspects of Mr Hoko'scriminal history and said:6Your aggravated robberies and rape were many, many years ago, however, they are not to be discounted totally. What I must not do is re-punish you for that previous offending or double count, so I have not taken any of those matters into account in setting the starting point.You were on release conditions when you committed this offence. In my view, an uplift of 18 months is appropriate.[9] Judge McDonald was unable to find any mitigating factors and so settledupon an end sentence of eight years' imprisonment.7 He also imposed an MPI of 60 per cent of the end sentence.4 R v Mako [2000] 2 NZLR 170 (CA).5 R v Hoko, above n 1, at [25].6 At [32]–[33].7 At [34] and [36].Mr Hoko's previous convictions[10] Mr Hoko is now 53 years old and has a very extensive list of previous convictions. Most relevantly:(a) in 1984 Mr Hoko was sentenced to three years and six months'imprisonment for aggravated robbery;(b) in 1984 he was sentenced to five years' imprisonment for aggravated robbery, concurrently with a sentence of eight years' imprisonment forrape; and(c) in 1991 he was sentenced to seven years and six months'imprisonment for aggravated robbery.[11] Mr Hoko's offending in this case appears to have occurred after the break-up of a long-term relationship, resulting in a return to his former pattern of anti-social behaviour.Appeal against sentence[12] Ms Hoskin for the Crown acknowledged the starting point adopted by Judge McDonald was "stern", but submitted that it was within the upper limits of therange that was reasonably available.[13] In our assessment, the aggravating features to Mr Hoko's offending were:(a) premeditation: Mr Hoko had armed himself and was walking thestreets of central Whangārei looking for a suitable victim;(b) weapon: whilst being armed is an element of aggravated robbery when the offender acts alone,8 in our assessment, Mr Hoko's decisionto arm himself with a knife with a 10 cm blade was an aggravating factor;8 Crimes Act, s 235(c).(c) disguise: Mr Hoko was wearing a hooded sweatshirt and glasses to disguise himself and to intimidate the complainant; and(d) impact on the complainant: as we have previously noted, Mr Hoko's conduct had a devastating impact upon the complainant.[14] Ms Hoskin acknowledged that Judge McDonald erred by assessing the complainant as being vulnerable because she was a woman sitting in her car.[15] In R v Mako,9 this Court provided guidance on sentences for aggravated robbery. The Court noted the wide range of circumstances that can be encompassed by aggravated robbery and the need to take into account the various combination of aggravating factors in setting a starting point.10 The Court considered the situation of:11 a robbery of a small retail shop by demanding money from the till under threat of the use of a weapon such as a knife after ensuring no customers are present, with or without assistance from a lookout or an accomplice waiting to facilitate getaway. The shopkeeper is confronted by one person with the face covered. There is no actual violence. A small sum of money is taken. The starting point should be around four years. Should the shopkeeper be confined or assaulted, or confronted by multiple offenders, or if more money and other property is taken five years, and in bad cases six years, should be the starting point.Another form of offending of disturbing frequency is the robbery of taxi drivers. These offences, generally at night, commonly involve violence to victims who, by their occupation are vulnerable. Other road users also may be endangered. Where a weapon is presented or physical violence is employed, though no serious injury may be caused, and money is taken a starting point of between four and five years would be appropriate.[16] While Mr Hoko's offending does not fit precisely into these descriptions ofoffending, we consider they provide a sensible guide to setting the appropriate starting point in Mr Hoko's case.[17] Bearing in mind the aggravating features that we have emphasised and the fact there was no significant physical violence inflicted upon the complainant, in our assessment the starting point for the aggravated robbery should have been no more9 R v Mako, above n 4.10 At [34].11 At [56]–[57].than five years' imprisonment. To that starting point we add a further year ofimprisonment to reflect the kidnapping charge.[18] A starting point of five to six years' imprisonment in relation to both chargesis consistent with other cases referred to us by the Crown. In particular:(a) In R v Hewitt,12 a starting point of five years and nine months'imprisonment was adopted in a case with facts similar to the present, although there was an actual assault and a three month uplift for car conversion.(b) In R v Andersen,13 a starting point of around seven years' imprisonment was adopted in a "carjacking" case that involved moreserious offending than the present case, including two complainants of the kidnapping charge.(c) In R v Zhang,14 a six year starting point was upheld in a "carjacking"case that involved actual violence and more serious threatening behaviour than the present case.[19] In our view, comparing these cases, a starting point of up to six years'imprisonment can be justified, particularly given the severe, long-term impact on the complainant.[20] The most problematic aspect of Judge McDonald's decision was the uplift of 18 months' imprisonment that he imposed. It is not entirely clear from thesentencing notes what the uplift was based upon. As set out above at [8], beforeapplying the uplift, the Judge noted that Mr Hoko's previous convictions were "not to be discounted totally" but that he had not taken this into account in setting the starting point, and that Mr Hoko was on release conditions when he committed the offence. If the uplift was designed to reflect Mr Hoko's previous convictions then it was excessive because Mr Hoko's most relevant previous convictions are historic12 R v Hewitt [2017] NZHC 1220.13 R v Andersen HC Auckland CRI-2006-090-5921, 26 September 2006.14 R v Zhang CA56/05, 24 May 2005.and would not warrant an uplift of 18 months' imprisonment. If, on the other hand,the uplift was designed to reflect offending whilst subject to post-detention release conditions then, the Crown has advised, the conditions in question included requiring Mr Hoko to report to a probation officer as directed and not to change residential address without first consulting with a probation officer.15 Mr Hoko's offendingwhilst those conditions remained in place did not warrant an uplift, let alone an upliftof 18 months' imprisonment.[21] In these circumstances, we proceed on the basis that a modest uplift iswarranted to reflect Mr Hoko's previous, albeit historical, similar offending. We consider that an uplift of six months' imprisonment is appropriate. We agree with Judge McDonald there are no personal mitigating factors in the circumstances of this case.[22] Therefore we conclude that the sentence imposed was manifestly excessive. The starting point should have been six years' imprisonment with an uplift of six months, resulting in an end sentence of six years and six months' imprisonment.[23] Ms Ellis accepted that an MPI of 60 per cent was appropriate in the circumstances of this case. We agree. An MPI is warranted in order to:16(a) hold Mr Hoko accountable for the harm done to the complainant and the community by his offending;(b) denounce Mr Hoko's conduct;(c) deter Mr Hoko and others from committing the same or similar offences; and(d) protect the community from Mr Hoko.[24] An MPI of 60 per cent on the sentence of six years and six months' imprisonment produces an MPI of three years and ten months' imprisonment.15 Sentencing Act 2002, s 80O.16 Section 86(2)(a)–(d).[25] In our assessment, a sentence of six years and six months' imprisonment with an MPI of three years and ten months' imprisonment fulfils the purposes andprinciples of the Sentencing Act 2002. In particular, it:(a) holds Mr Hoko accountable for the harm done to the complainant and the community by his offending;17(b) promotes in Mr Hoko a sense of responsibility for the harm that he has done;18(c) denounces Mr Hoko's conduct;19(d) deters Mr Hoko and others from committing the same or a similar offence;20 and(e) protects the community from Mr Hoko.21[26] In addition, we consider this sentence is the least restrictive sentence that is reasonably available in the circumstances of this case.22Result[27] The appeal against sentence is allowed.[28] The sentence of eight years' imprisonment imposed on the charges ofaggravated robbery and kidnapping is quashed and a sentence of six years and sixmonths' imprisonment is imposed.[29] The minimum period of imprisonment of 60 per cent remains in place, whichin the circumstances is three years and 10 months' imprisonment.17 Section 7(1)(a).18 Section 7(1)(b).19 Section 7(1)(e).20 Section 7(1)(f).21 Section 7(1)(g).22 Section 8(g).Solicitors:Crown Law Office, Wellington for Respondent