The defendant groped the woman while searching for items to steal, then “immediately took [the victim] by the arm and walked her to a nearby bush, directing her movements at knifepoint”. He threatened again to stab her if she didn’t do as instructed, according to the agreed summary of facts for the case.
When the traumatised rape victim returned with the defendant from the bushes several minutes later, she tried to negotiate a bank transfer in exchange for the safe release of her and her boyfriend, who had been held at bay by the 15-year-old. When her partner tried to talk to her, the defendant stepped in and placed his knife to the young man’s throat.
“Shut the f*** up or I’ll kill you,” he warned.
Kosetatino eventually pleaded guilty to sexual violation by rape, which carries a maximum possible sentence of 20 years’ imprisonment, and aggravated robbery, which is punishable by up to 14 years’ imprisonment.
At his district court sentencing in December, Judge Ryan ordered a sentence of two years, two months and one week in prison. Before announcing her decision, she lamented it would likely be appealed - if not by the defence for being too heavy-handed then by the Crown for being too light. She was correct on both accounts.
Defence lawyer Sacha Norrie initially indicated an intention to appeal after the judge denied her bids for home detention and for permanent name suppression, both of which were based largely on her client’s age. But by the time the appeal made it to the High Court last month, the defence had dropped both bids and it was instead lawyers for the Solicitor General seeking a longer sentence.
Crown prosecutor Zoe Hamill argued the discounts allowed by the judge were “simply too much” given the gravity of the crimes.
Judge Ryan had begun with a starting point of nine years’ imprisonment for the rape before uplifting the sentence to 11 years and three months to account for the robberies. She then applied 77 per cent in discounts - the highest she has ever considered, she noted - for a range of discounts including his guilty pleas, his youth, the fact he had no prior convictions and his “exemplary” efforts at rehabilitation in the months leading up to the hearing. The defence had sought discounts totalling 110 per cent, the judge noted.
During both the district court and High Court hearings, the defence emphasised the negative impact of imprisonment on young offenders. The public would be more protected from her client if he was allowed to address his issues in a therapeutically appropriate way outside of prison, Norrie said.
“I acknowledge that sentencing young people to a term of imprisonment is never an easy task,” Justice Peter Andrew wrote in his appeal decision, which was issued this afternoon. “There is force in Ms Norrie’s submission that prison can have negative and counter-productive consequences for young people in particular.”
But ultimately, he wrote, it is also important to consider other principles of the Sentencing Act such as denunciation, deterrence, victim harm and protection of the community.
“In my view, the [District Court] judge was in error in her application of these principles in this case,” he wrote.
Justice Andrew also disagreed with the defence that the starting point adopted by the District Court judge was too stern.
“As I have emphasised, this was serious offending,” he said. “It carried significant implications for public safety, being two sets of offending against strangers in a public setting, by two associates, each armed with knives. Threats of violence and use of the knives to reinforce those threats, occurred on both occasions.
“Mr Kosetatino’s rape offending, at knifepoint, against a member of the public walking through a central Auckland park, was grave. It caused the victim extensive and ongoing harm.”
While Kosetatino was entitled to substantial discounts for his youth, previous good character and rehabilitative efforts, the District Court judge should have stood back at the end of the sentencing exercise to make sure the end sentence fit the gravity of the offending, Andrew said.
“Her final conclusion was very much a mathematical exercise and a failure, in my view, to stand back and make the necessary overall assessment,” he added.
Justice Andrew ordered a new sentence of three years and 11 months’ imprisonment.
Craig Kapitan is an Auckland-based journalist covering courts and justice. He joined the Herald in 2021 and has reported on courts since 2002 in three newsrooms in the US and New Zealand.
