Akuhata-Brown v The King
[2024] NZHC 1637
•20 June 2024
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE
CRI-2024-416-9 [2024] NZHC 1637
BETWEEN WIREMU PAREKURA HAKOPA AKUHATA-BROWN
Appellant
AND
THE KING
Respondent
Hearing: 12 June 2024 Appearances:
M A Terekia for Appellant
J D Bridgman for Respondent
Judgment:
20 June 2024
JUDGMENT OF BOLDT J
(Sentence appeal)
[1] On 10 April 2024 Judge B Davidson sentenced the appellant, Mr Wiremu Akuhata-Brown, to three years and six months’ imprisonment on a charge of aggravated burglary.1 At the time he was sentenced, the appellant was already serving an 18-month prison term imposed on 7 December 2023 by Judge W P Cathcart. Judge Cathcart had sentenced the appellant on a series of charges including two of unlawful possession of a firearm and one of unlawful possession of ammunition.2
[2] Mr Akuhata-Brown appeals against the three and a half year sentence imposed by Judge Davidson. In particular, he challenges the Judge’s decision not to build a totality discount into that sentence. Mr Akuhata-Brown says the effective total
1 R v Akuhata-Brown [2024] NZDC 7855 [Decision under appeal].
2 New Zealand Police v Akuhata-Brown [2023] NZDC 27666.
AKUHATA-BROWN v R [2024] NZHC 1637 [20 June 2024]
sentence of five years is manifestly excessive when the two sets of offending are considered together.
Background
The offending
[3] In March 2023, the appellant was on electronically monitored (EM) bail. Among other things, he was facing charges of unlawful possession of a loaded 12-gauge pump action shotgun, a semi-automatic Ruger .22 calibre rifle and 15 live rounds of ammunition.
[4] While on EM bail, the appellant took the opportunity to arrange the home invasion of a Gisborne property where cannabis was being sold. The attack was well planned. The appellant set up a group chat for the participants, instructed them not to wear gang colours in order to avoid being identified, advised them about the presence of a security camera and provided advice that the intended victim was likely to try and escape by running out the back door. On 17 March 2023, the appellant arranged for a young associate to visit the address to obtain further information about the layout of the property. Before the attack the appellant messaged the others telling them to “be safe and be dangerous”.
[5] Two of the appellant’s associates attacked the victims’ home on 18 March 2023. They wore balaclavas, and one was armed with a shotgun while the other carried a hockey stick. Two others, who Police have not identified, provided transport.
[6] The attack was a failure. The attackers demanded the occupants let them in, and shouted that they were there “for the dope and the money”. One smashed a window and climbed inside. Fortunately, the occupants managed to flee and raise the alarm, and the burglars left without taking anything.
The appellant
[7] The appellant is 31 years of age. He is a captain and leader of the local Black Power chapter. His cultural report discloses an exceptionally difficult and
disrupted upbringing. His criminal history includes a sentence of two years and two months’ imprisonment in 2016 for selling methamphetamine and cannabis.
District Court sentencings
[8] As already noted, by the time he came to be sentenced for his role in the aggravated burglary the appellant was serving the 18-month sentence Judge Cathcart had imposed on the firearms charges.3 In sentencing the appellant on those charges, Judge Cathcart adopted a global starting point of two years,4 which he reduced by four months in recognition of the appellant’s delayed guilty plea and a further two months to reflect apparent steps he had taken towards rehabilitation while on EM bail.5
[9] In sentencing the appellant for the aggravated burglary, Judge Davidson noted the attack was premeditated and that the appellant’s role was pivotal. The Judge recorded he had little doubt the attack would not have occurred without the appellant’s planning and organisation.6
[10] The Judge adopted a starting point of six years’ imprisonment.7 He did not impose any uplifts. The Judge deducted two years and six months in recognition of the appellant’s plea of guilty, his background, his remorse and his willingness to undertake restorative justice. This brought the final sentence, on the aggravated burglary charge, to three and a half years.8
[11] In light of the 18-month sentence the appellant was already serving, the Judge considered whether an effective overall sentence of five years would be excessive in light of the totality of the appellant’s offending. He observed:
[28] I need to consider what the likely overall sentence would have been then if all matters had been dealt with at the same time. Three and a half years imprisonment cumulative on 1½ years is 5 years’ imprisonment. I do not see
3 The final 18-month sentence also included concurrent one-month sentences on charges of breaching community work, possession of a methamphetamine pipe and driving while disqualified.
4 At [14]–[15].
5 At [16]–[17].
6 At [24].
7 At [24].
8 At [25].
that at all as out of kilter with the overall culpability of all of your offending. For my part I do not see that there is any necessity for any downward adjustment of that 3½ years.
The appeal
[12] In this Court, the appellant challenges only the Judge’s decision not to give a further discount to reflect the totality principle. He accepts that the six-year starting point and the discounts the Judge applied were appropriate.
[13] Mr Terekia, for the appellant, submitted that the overall sentence of five years was manifestly excessive. He argued that if the appellant had been sentenced on all charges at once, the Court would have adopted the aggravated burglary as the lead charge and imposed an uplift to reflect the other offending. He submitted that if the sentence had been approached that way, an uplift of two years, before discounts were applied, would have been too great.
[14] Mr Terekia submitted Judge Davidson should have given the appellant a totality reduction of six months, resulting in an end sentence of three years for the aggravated burglary, or a total effective sentence of four years and six months. Mr Terekia noted that at sentencing the Crown accepted a totality discount would be appropriate, albeit in the context of a submission which sought a starting point of seven years.
Discussion
[15] The principles governing this appeal are well settled. By virtue of s 250 of the Criminal Procedure Act 2011 I must dismiss the appeal unless satisfied the Judge has made an error, and that a different sentence should be imposed. While s 250 makes no express reference to the sentence having to be manifestly excessive, or wrong in principle, those standards are well understood and continue to govern appeals against sentence.9 My focus is on the sentence finally imposed; it does not particularly matter how the Judge constructed the sentence as long as the sentence itself was reasonably available.
9 Tutakangahau v R [2014] 3 NZLR 482 at [33].
[16] The sentence of three years and six months’ imprisonment for the aggravated burglary was well within the range available to the Judge. The appellant engaged in careful planning and effectively directed the attack. It was a terrifying intrusion into the victims’ home. A nine-month-old baby was present.
[17] The appellant was saved from a longer starting point only because the Judge considered there was no “hard core evidence” the appellant knew one of the attackers would be carrying a firearm.10 That said, the Judge considered it highly likely the appellant did know a firearm would be used, noting that “presenting firearms during a home invasion is a typical modus operandi”.11 Given the appellant’s role as the organiser and ringleader of the attack, I regard it as extremely unlikely the presence of a firearm came as a surprise to him.
[18] In addition, it would have been open to the Judge to uplift the starting point by at least 12 months to reflect the fact the appellant was on EM bail when he planned the aggravated burglary, and had previously served a term of imprisonment for supplying methamphetamine and cannabis. As Mr Terekia accepted, the Judge would have been entitled to regard the appellant’s previous drug offending as an aggravating feature given the aim of the attack was to steal cannabis and money.
[19] The totality principle is codified by s 85(2) of the Sentencing Act 2002. It provides:
…
(2) If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.
[20] It follows that a totality discount is only mandatory if the alternative is a sentence which is “wholly out of proportion” to the offending when considered as a whole. As the Court of Appeal observed in Piao v R:12
10 Decision under appeal, above n 1, at [24].
11 At [9].
12 Piao v R [2020] NZCA 607.
[24] As the Crown properly notes, an adjustment for totality is not automatic. Proportionality of the total effective sentence to the gravity of the overall offending will be determinative.
[21] There can be no suggestion the appellant’s overall sentence of five years’ imprisonment infringes s 85(2). The appellant’s firearms offending was serious in its own right. Judge Cathcart noted the background of gang tension, the need to deter firearms offending in the context of ongoing gang confrontation, and the prolific possession of firearms offending by gang members in the Gisborne area.13
[22] Moreover, for the reasons already discussed, the appellant was fortunate Judge Davidson did not select a higher starting point for the aggravated burglary, or impose an uplift. It was a terrifying and very serious attack. As the Judge observed, the appellant’s role was pivotal. It was only good fortune that nobody was hurt. The fact the appellant was on EM bail was a serious aggravating factor, given the breach of trust offending on bail always entails.
[23] Standing back, I am comfortably satisfied that the overall sentence of five years’ imprisonment was within the available range when the totality of the appellant’s offending is considered. Judge Davidson did not consider the five-year sentence was “out of kilter with the [appellant’s] overall culpability”, and I agree.
Result
[24]The appeal against sentence is dismissed.
Boldt J
Solicitors:
Tiaki Legal, Gisborne for Appellant Crown Solicitor, Gisborne for Respondent
13 New Zealand Police v Akuhata-Brown, above n 2, at [14].