Chase v The King

[2024] NZHC 494

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2024-419-000003

[2024] NZHC 494

BETWEEN

HAMIORA HAUTAPU CHASE

Appellant

AND

THE KING

Respondent

Hearing:	5 March 2024
Appearances:	G Walsh for the Appellant J Lewis for the Crown
Judgment:	8 March 2024

JUDGMENT OF WALKER J

This judgment was delivered by me on 8 March 2024 at 2.30 pm Registrar/Deputy Registrar

Solicitors:

G Walsh, Barrister, Hamilton
J Lewis, Pollett Legal Ltd, Crown Solicitor’s Office

CHASE v R [2024] NZHC 494 [8 March 2024]

Introduction

[1]                 Mr Hamiora Hautapu Chase appeals the sentence of two years and five months’ imprisonment imposed by Judge N D Cocurullo in the Hamilton District Court on 22 January 2024.1 Mr Chase pleaded guilty to the charge of burglary.

[2]                 Mr Chase brings an appeal on the grounds that the sentence is manifestly excessive; specifically, that the sentencing Judge gave an inadequate allowance for the guilty plea in view of the timing of the plea and bearing in mind the principle of parity with co-offender(s).

[3]                 The Crown opposes the appeal and submits that the end sentence was not manifestly excessive. It submits that a higher starting point was well within the available range and the cumulative discounts awarded to Mr Chase resulted in an appropriate end sentence.

Background facts of offending

[4]                 Details of the offending set out below are taken from the agreed summary of facts to which Mr Chase pleaded guilty.

[5]Mr Chase and his co-offenders are members of the Mongrel Mob. At about

3.30 pm on 4 December 2022 Mr Chase and his co-offenders arrived at an address in Hamilton. The occupants of the home did not know who they were, although the female at the address was aware of one of the co-offenders. Two of the co-offenders (albeit not Mr Chase) were wearing gang patches at the time.

[6]                 Initially, two of the co-offenders went to the door and had a somewhat amicable conversation with the female occupant, during which a debt was discussed. There were no funds owing, however one asked for more money for fuel. He asked if they could continue talking inside the address. The female said no. The conversation continued at the door. At that moment Mr Chase joined the co-offenders at the door. After briefly stopping, Mr Chase walked into the address uninvited, pushing past the two co-offenders and the female.

1       R v Hamiora Hautapu Chase [2024] NZDC 1246 [Sentencing Notes].

[7]                 Subsequently, a fourth co-offender also entered the address followed by the two co-offenders who had initially been at the front door. It is said that all four were acting in concert, searching the address and people present. There were three other people in the address, the female’s son, his partner, and a male visitor. They locked themselves in a bedroom. During this burglary the door of the bedroom where the three had taken refuge was kicked down and a search of that room occurred.

[8]                 Mr Chase’s role is described in the summary as assisting in searching the address. Items were taken from inside the address and from the occupants during this burglary.

[9]                 A CCTV security system operated at the property. The offenders removed the CCTV hard drive which captured their movements inside the property. However, CCTV still recorded the interactions in the entry to the house.

[10]              One of the occupants managed to escape and raise the alarm. As police arrived, Mr Chase and the others left at high speed.

[11]              No one was physically injured but members of the house were emotionally affected.

Procedural history

[12]                Mr Chase was remanded in custody on 11 January 2023 following his arrest on a charge of aggravated burglary. On 9 May 2023 Mr Chase, through counsel, offered to plead to a charge of demands with menaces under s 239(2) of the Crimes Act to resolve matters.

[13]The Crown rejected that proposal on 28 May 2023.

[14]              On 3 June 2023 Mr Chase’s counsel explored with the Crown a proposed plea to a burglary charge. Four months went by without a response from the Crown. Counsel for Mr Chase filed an application under s 147 for discharge. It appears that prompted a review on the part of the Crown. The Crown then amended the charge notice. Very shortly thereafter, Mr Chase and two other co-offenders pleaded guilty.

[15]              On the entry of pleas, different sentencing dates were scheduled for each co- offender. Mr Chase was sentenced on 22 January 2024.

District Court decision

[16]              In deciding the start point the Judge adopted the same point that had been set for a co-offender when sentenced on 29 November 2023 by Judge P P Crayton. Judge Cocurullo reasoned:

You did have a slightly different role, but swings and roundabouts come into play, it could be said that in fact you were last to get out to be directly involved to others going to the door first.

[17]              The Judge then assessed the applicable mitigating factors. He applied a total discount of 30 per cent:

(a)Guilty plea: 15 per cent

(b)Section 27 report: 10 per cent

(c)Remorse: five per cent

[18]This resulted in an end sentence of two years and five months’ (29 months’).

Approach on appeal

[19]              To succeed on an appeal against sentence the appellant must satisfy the appellate court that there has been an error in the imposition of the sentence and that a different sentence should be imposed.2 In all other cases, the court must dismiss the appeal.3 In this respect, the court will not simply substitute its own view for that of the original sentencing judge.4 If the sentence is within the range that can properly be justified by accepted sentencing principles, the court will typically dismiss the appeal.5 It will only intervene if the sentence is manifestly excessive or wrong in principle.6

2      Criminal Procedure Act 2011, s 250(2).

3      Criminal Procedure Act 2011, s 250(3).

4      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

5 At [36].

6      At [30]–[35]. See also Te Aho v R [2013] NZCA 47 at [30].

The appeal court’s focus in this respect will be on the final sentence imposed rather than the process by which that sentence was reached.7

Submissions

[20]              Mr Walsh, for Mr Chase, submits that the 15 per cent allowance for the guilty plea is inadequate. He compares it to the 20 per cent allowance afforded to a co- offender who pleaded guilty on the same day as Mr Chase. He argues that there is no reason why Mr Chase should not be at least afforded parity of guilty plea discount.

[21]              But that submission was very much a fall-back. The primary point argued on behalf of Mr Chase is that the timing of the guilty plea is such that Mr Chase was in fact entitled to full credit of 25 per cent. Mr Walsh points out that Mr Chase initiated discussions to resolve matters at an earlier juncture and entered a guilty plea “the moment the new charging document came into play with the burglary charge”.

[22]              Mr Walsh properly accepts that there is no tariff for the imposition of a guilty plea discount but contends that it is well accepted that there are two key factors in the assessment. The first is the strength of the case. The second is the timing of a guilty plea. Mr Walsh contends that on both counts a higher discount was warranted. The strength of the Crown case on the initial charge is answered by the amendment of the charge and an issue of identification, which for Mr Chase was a contestable issue. The timing of the guilty plea, once all the circumstances surrounding its entry are considered, also supports an entitlement to the maximum discount.

[23]              On Mr Walsh’s analysis, the appropriate end sentence would be either two years and one month (or 25 months) if a 25 per cent allowance is made for the guilty plea, or two years and three months (or 27 months) if a 20 per cent allowance is made for the guilty plea.

[24]              Mr Lewis, on behalf of the Crown, approaches the appeal on a holistic basis. He submits that when viewed against similar sentences for burglary offending characterised as “gang taxing”8, the end sentence is well within range. He references

7      Tutakangahau, above n 4, at [36].

8      See R v Hamiora Hautapu Chase [2024] NZDC 1246 [Sentencing Notes] at [4].

Zafar v Police. 9 In that case, the offending involved a burglary initiated by multiple King Cobra members who invaded a house by smashing down a door and taking items of value, including television sets and rings. The key difference in the case, warranting a higher starting point of four years and three months, was the fact that the offenders “smashed” their way into the house. Mr Lewis submits that given a higher starting point was well within the available range, the discounts afforded to Mr Chase resulted in an appropriate end sentence.

[25]              Mr Lewis notes that whilst the 15 per cent discount did not accord with the 20 per cent discount given to one co-offender, it was the same as the discount afforded another co-offender who was sentenced on 14 February 2024 by Judge B Crowley.

[26]              Mr Lewis points to the case of R v Kohey, where the Court of Appeal held that:10

[20] Whilst it is vital for a sentencing Court to strive for parity in sentencing co-offenders (whether sentenced separately or together), parity will not be achieved by a simple measurement against a co-offender's culpability. Parity means treating like cases alike and others with due regard for relative differences. It is best achieved by sentencing each offender appropriately for his role in the overall offending, in light of any relevant antecedents and taking into account any aggravating or mitigating features personal to the offender.

[27]              Mr Lewis submits that it is relevant that, while the Judge did not distinguish between the roles played by the each of the offenders, Mr Chase’s role in the offending could be differentiated by the fact that he was the first person to push past the occupant at the door and enter the house, triggering all that followed.11 He relies on the decision of the Supreme Court in Hessell v R.12

Analysis

[28]              I distil the issues to two. First, whether the Judge erred by failing to consider the timing of the guilty plea. Secondly, whether the principle of parity applies in respect of a guilty plea discount and to what extent. Relatedly there is the question of

9      Zafar v Police [2014] NZHC 3084 at [1].

10     R v Kohey [2003] 20 CRNZ 62 at [20].

11     The agreed summary of facts states "…Chase walked into the address uninvited, pushing past his co-defendants and the complainant".

12     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

the ambit of the circumstances relevant to assessment of such discount. Should the reference to “all the circumstances” in Hessell be construed narrowly or broadly?

[29]              In Hessell the Supreme Court emphasised that the credit must reflect all the circumstances in which the plea is entered, including whether it is truly to be regarded as an early or late plea, and the strength of the prosecution case.13

[30]              This Court has the benefit of the correspondence between defence and Crown counsel showing the level and timing of engagement on the plea. I apprehend that was not before the sentencing judge. It is highly relevant. It dilutes the Crown argument that had Mr Chase offered to plead to a burglary charge in May 2023, he may well have been entitled to more than a 15 per cent discount. That offer was made only one month later and the subsequent delay in response lay at the Crown door. In saying so, I am not in any way critical of the Crown or Police. I merely refer to that delay as relevant to the chronology.

[31]              The strength of the Crown case is highly relevant but all I can say about that is that I accept Mr Walsh’s argument that the amendment to the charge goes some way to rebutting the Crown position on that point.

[32]              It is anomalous that co-offenders pleading guilty to the same charge on the same day receive different discounts for a guilty plea when there is no discernible difference of role in the offending and no other apparent reason.

[33]              As to whether the timing of the plea merits a 25 per cent discount however, I am not so satisfied that the engagement on the appropriate charge was so early as to justify the maximum discount.

[34]              Taking all those factors on board, I allow the appeal. I consider a guilty plea discount of 20 per cent was warranted. It is supported by the principle of parity. This was a material error (albeit one which could not have been apparent to the sentencing judge on the material before him).

13 At [74].

[35]              I quash the sentence imposed in the District Court and substitute a sentence of two years and three months’ imprisonment. I do not regard this as tinkering given the proportionate difference in the substituted sentence.

............................................................

Walker J