Haeta v The King

[2024] NZHC 2094

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI-2024-454-15

[2024] NZHC 2094

BETWEEN

TE AWHETU HAETA

Appellant

AND

R

Respondent

Hearing:	30 July 2024
Appearances:	J Younger for Appellant N Brown for Respondent
Judgment:	30 July 2024

JUDGMENT OF CHURCHMAN J

Introduction

[1]    On 14 May 2024, the appellant was sentenced to seven months’ home detention after pleading guilty to the following charges:1

(a)one charge of possession of a class C drug (cannabis) for supply;2

(b)one charge of unlawful possession of two firearms;3 and

(c)one charge of unlawful possession of ammunition.4

[2]The appellant now appeals his sentence on the grounds that:

1      R v Haeta [2024] NZDC 10707.

2      Misuse of Drugs Act 1975, s 6(1)(f) and (2) — maximum penalty of eight years’ imprisonment.

3      Arms Act 1983, s 45(1)(b) — maximum penalty of four years’ imprisonment.

4      Section 45(1)(b) — maximum penalty of four years’ imprisonment.

HAETA v R [2024] NZHC 2094 [30 July 2024]

(a)the starting point of three year’s imprisonment was too high, with the appropriate starting point being two years’ imprisonment;

(b)the firearms charges were incorrectly assessed to be the lead charges, when the drug offence should have been the lead charge;

(c)the 15 per cent discount for the appellant’s personal factors was wholly inadequate, and instead a discount of 20 per cent should have been applied;

(d)a discount in the range of five per cent should have been applied for the fact the appellant lacked previous convictions; and

(e)further discounts of five per cent for his remorse and steps at rehabilitation and another five per cent for his rehabilitation prospects should have been applied.

Offending

[3]    In August 2023, police executed a search warrant at the address occupied by the appellant, his wife and his wife’s younger brother.

[4]    Whilst executing the search warrant, police found two bags of cannabis that amounted to 487 grams. $2,000 in cash was also found.

[5]In the master bedroom of the property, police found a loaded cut-down

.22  magnum  Rossi  semi-automatic  rifle  under  the  bed,  alongside  10  rounds  of

.22 ammunition and 21 shotgun shells. They also located a 3D-printed semi-automatic pistol  in  the  cupboard  of  the  master  bedroom,  and  a  further  32  rounds  of

.22 ammunition on the appellant’s person.

[6]    The appellant is said to have told police that he supplied cannabis to members of the Nomads gang for free, and admitted to possession of the firearms and ammunition and asserting that he possessed them for his own safety from other gang members.

District Court decision

[7]    In his sentencing notes, Judge Krebs noted that the appellant had one previous conviction in 2017 for a minor assault where he was directed to come up for sentence if called upon, and consequently decided to treat him as a first-time offender.

[8]    The Judge stated he had been told that the appellant had taken positive steps to rehabilitate himself whilst on bail, and that his mother spoke well of him. However, his honour also noted the appellant had “concerning enthusiasm” for the Nomads gang and was a proud member. The Judge found the deep involvement with a criminal gang difficult to reconcile with the reports of positive steps taken whilst on bail.

[9]    The Judge noted the cultural report indicated that the appellant had employment since age 16, does not drink or take drugs, was not witness to or subject to domestic violence, and lived in a home “full of aroha” and was well provided for as a child. The Judge stated although the appellant’s father was a heavy drinker, this reportedly deterred the appellant from drinking and involving himself with drugs.

[10]   His honour also considered the fact the appellant suffered from ADHD and had an 11-year-old daughter and nine-year-old son. The Judge found the appellant chose to enter into a gang lifestyle, but acknowledged that the lifestyle of gang involvement was modelled to the appellant by his father, meaning his choices were quite limited.

[11]   The Judge considered the pound of cannabis to be “not an insignificant amount”. He expressed deep concern about the unsecured weapons which were available and ready to fire, were prohibited semi-automatic weapons, and were intended to be used against other people. The fact one of the firearms had been 3-D printed, and thus “made in the criminal underworld”, was also highlighted.

[12]   The Judge adopted a starting point of two years’ for the firearms offending, with a one year uplift for the cannabis offending. He gave a guilty plea discount of 25 per cent despite it not being entered at the earliest opportunity, due to complex settlement/resolution discussions that took place. A discount of 15 per cent for background factors was provided, due to the influence of the gang lifestyle of the appellant’s father on him, limited education due to his health issue, and that the fact

the appellant had undertaken some counselling with the local iwi authority and was “looking positively forward”. This resulted in a reduction of 14 and a half months’ to 21 and a half months’.

[13]   A further reduction of three and a half months was made to recognise the seven months that the appellant was on EM bail. The Judge considered a sentence of home detention to be appropriate, and commuted the 18 months’ imprisonment to nine months’ home detention. A final sentence of seven months’ was imposed, recognising the two months the appellant had already spent in custody.

Approach on appeal

[14]   An appeal against sentence is an appeal against discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.5 The Court must dismiss the appeal in any other case.6

Submissions

Appellant’s submissions

[15]   Ms Younger for the appellant submits that the starting point of three years’ was too high, partly due to the fact that the lead charges were the firearms charges rather than the cannabis possession charges. She refers to Hajnal-Huata v Police,7 where a starting point of three years and four months’ for possession of class C drugs for supply was uplifted by six months for the possession of two rifles. Ms Younger also relies on R v Coe,8 where a starting point of two years’ was adopted on the possession of

1.5 kilograms of cannabis for supply alongside an uplift of four months for possession of a firearm. Lastly, she refers to R v Ngatai,9 where possession of 174 grams of cannabis, $3480 in cash, and a shotgun with 22 rounds of ammunition resulted in a starting point of two years and three months’ with an uplift of six months for the firearms and ammunition.

5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].

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

7      Hajnal-Huata v Police [2020] NZHC 424.

8      R v Coe [2012] NZHC 3242.

9      R v Ngatai [2014] NZHC 186.

[16]   In respect of the discount for personal factors, Ms Younger refers to the appellant’s cultural report, and notes his exposure to alcohol, drugs and gang life from a relatively young age, as well as his struggles at school with learning difficulties and ADHD. She submits that discounts as high as 30 per cent have been seen as appropriate when taking into account cultural factors relevant to offending as well as rehabilitation. Ms Younger refers to cases such as Kolofale v R10 where the defendant’s youth and prospects for rehabilitation, particularly in light of the need to treat his ADHD, resulted in an additional discount of seven per cent alongside a 20 per cent discount for background factors. She also references cases where discounts as high as 70 to 75 per cent were awarded.11 Ms Younger states the District Court Judge did not provide a sufficient nor consistent discount compared to other cases, despite seeing the nexus between the appellant’s background and the offending.

[17]    Ms Younger further submits that a discount of five per cent for the appellant’s lack of previous convictions should have been made, and refers to Zhang v R where the Court of Appeal gave a 30 per cent discount for lack of previous convictions.12

[18]   Ms Younger also contends that discounts for remorse and steps taken towards rehabilitation should have been awarded, and argues one way to show remorse is taking rehabilitation steps immediately after the offending. She notes the appellant has the strong support of his current counsellor. Ms Younger refers to Pene v R13 where a discount of 5 per cent for remorse and the appellant’s efforts to rehabilitate was allowed.

[19]   Lastly, Ms Younger states the appellant has good prospects of rehabilitation. She notes he attends the gym, is compliant with EM bail, has strong family support, has showed every intention of continuing his work with his counsellor, is only 26 years old and was a virtual first offender. Ms Younger states the appellant recognises he still needs to address what she describes as his addiction issues. She submits a discount of five per cent for these prospects of successful rehabilitation should be made.

10     R v Kolofale [2022] NZCA 74.

11     R v Taufu [2023] NZDC 10428.

12     Zhang v R [2019] NZCA 507.

13     Pene v R [2023] NZHC 1234.

[20]   Overall, it is submitted that a total discount of 60 per cent should have been applied to the end sentence, resulting in a final sentence of 4.1 months’ home detention.

Respondent’s submissions

[21]   Mr Brown submits that whether the lead charge was the firearms or drug charges is irrelevant as it is the overall starting point that matters. He argues R v Coe is distinguishable from this case due to the absence of gang connections, the fact that there was only one unmodified firearm, and that Mr Coe was not treated as having possessed a firearm for an unlawful purpose. He acknowledges that Mr Coe possessed significantly more cannabis. Mr Brown refers to a number of cases14 in which starting points in the range of two to two and a half years’ were imposed for firearms offending that included modified firearms. He also submits that the one-year uplift for the drug offending did not result in a manifestly excessive starting point, given the appellant possessed a relatively large amount of cannabis. Mr Brown refers to Gray v R15 where possession of 286 grams of cannabis for supply was said to attract a starting point between 18 months to three year’s imprisonment.

[22]   Mr Brown submits that the Judge did not err in granting a 15 per cent discount for background factors as opposed to the 20 per cent discount sought by the appellant’s counsel. He states the link between the appellant’s background and his offending is not as strong as in other cases, with the appellant’s upbringing not comparable to that of the appellant in Pene v R, given he had a loving family and did not experience violence. Mr Brown notes the s 27 report states that the appellant’s poor literacy and ADHD did not directly drive the offending, with the link one of general association.

[23]   It is also submitted that the Judge was not obliged to apply a five per cent discount for the appellant’s lack of previous convictions, given the appellant’s youth means he has had a reduced opportunity to show good character. Mr Brown also notes the appellant has been before the Court previously, and his links to the Nomads gang throughout his adult life.

14     Herewini v Police [2014] NZHC 2396; R v Richardson CA450/02, 25 March 2003; and Dewes v Police HC Christchurch A60/03, 12 June 2003.

15     Gray v R [2015] NZCA 297.

[24]   In regard to the claimed discounts for remorse, Mr Brown submits the appellant has not expressed any remorse that necessitated a discrete discount, with the closest he has come to expressing remorse being a statement that the experience with the Court was a “wake up call”. Mr Brown states the PAC report suggests the appellant is otherwise unapologetic about the offending, particularly his possession of the firearms.

[25]   Mr Brown states there is an element of double counting in the appellant’s counsel’s submissions that separate discounts for steps towards rehabilitation and prospects of rehabilitation should be awarded, and that these should be considered together. Mr Brown notes that the appellant has reported that he does not consume drugs, and that the appellant’s counsellor does not comment on whether the appellant has addiction issues. He submits that a discount for engagement with a AOD practitioner was not required as addiction has not been established. Mr Brown further argues the appellant is not addressing his other risk factors as he remains a member of the Nomads gang, which his offending was linked to.

Analysis

Starting point

[26]   I accept the submission of Mr Brown that whether the lead charge was the firearms charges or the drug charges is largely irrelevant in regard to this sentencing appeal. The issue for this Court to determine was whether the final sentence was manifestly excessive.

[27]   The cases referred to by Ms Younger have a number of features that differentiate them from this case, such as a lack of gang connections, and the fact that the firearms involved were unmodified. The District Court Judge was right to express concern about and give weight to the fact that one of the firearms found was 3-D printed, which means the firearm was obtained completely outside the system that exists to regulate firearms in New Zealand. The fact that the weapons were expressly intended to be used against other gang members, even purportedly in self-defence, was also a relevant factor for the Judge to consider. Although the firearms were not taken

out in a car as occurred in some of the cases relied on by Mr Brown, the fact that there are gang associations and an express unlawful purpose makes it just as serious.

[28]   In respect of the cannabis offending, this sits in category two of R v Terewi, with a starting point considered to be generally in the range of two to four years’ imprisonment.16 I accept that this is at the lower end of category two, which as discussed in Gray v R suggests a starting point of between 18 months to three years’ imprisonment. On a totality basis, an uplift of one year was clearly available to the Judge.

[29]   I further note that the case of Ngatai relied on by Ms Younger has a starting point of two years and nine months’ for combined firearms and drug offending, but lacked the aggravating features of gang connections and firearms modifications, and concerned a lesser amount of cannabis. It is difficult to see how a starting point of three years’ imprisonment could be said to be disproportionate in this case. The Judge did not err in adopting his starting point.

Personal factors discount

[30]   The Judge did not err in awarding a discount of 15 per cent for background factors. As noted by the Judge in his sentencing notes, the appellant had a relatively good upbringing in a loving home, with no indication of the type of trauma and abuse unfortunately prevalent in the backgrounds of the defendants in the cases relied on by councel for the appellant. Unlike in Kolofale or Pene which Ms Younger relies on the appellant in this case did not experience alienation, physical discipline, sexual abuse, instability of care or housing or other such environmental factors. Although he suffered ADHD and learning difficulties, this does not appear to have significantly contributed to his offending. The discount of 15 per cent properly recognised the influence of early exposure to drug and alcohol use and gang lifestyle on his offending.

16     R v Terewi [1999] 3 NZLR 62 at [4].

Good character discount

[31]   The appellant in this case, although treated as having no previous convictions, does still have a family violence conviction, and retains associations to the Nomads gang. This contrasts with the case of Mr Zhang who was said to have had no previous convictions, was previously of good character, and was living a productive life. Although it does appear that the appellant has maintained employment since he left high school, this is not sufficient grounds to require a good character discount. I therefore find that the District Court Judge did not err by failing to grant a good character discount.

Remorse

[32]   I do not accept the submission of Ms Younger that remorse is demonstrated by taking steps towards rehabilitation, particularly where it is unclear whether the appellant has substance abuse issues. The appellant has not expressed remorse about his offending, and appears to feel justified in possessing prohibited modified weapons for an unlawful purpose. A discount for remorse was not available and so  the District Court Judge did not err in this regard.

Rehabilitation discount

[33]   I accept the submission of Mr Brown that treating “steps taken towards rehabilitation” and “plans and prospects of success of rehabilitation” as grounds for separate discounts amounts to double counting, and so I consider them together.

[34]   Whilst it is pleasing to see the appellant has the support of his counsellor in regard to his rehabilitation, I do not consider that a separate discount is needed to reflect this mitigating factor. As is made clear at [32] of the Judge’s sentencing notes, these rehabilitative steps were factored into the determination of a 15 per cent discount for background factors. I again also note the amount of credit to be granted for rehabilitation is tempered by the uncertainty around the appellant’s relationship with drugs, and by his continuing association with the Nomads.

Conclusion

[35]   The appellant has failed to demonstrate that his sentence was manifestly excessive. The final sentence of seven months’ home detention was clearly within range.

[36]The appeal is dismissed.

Churchman J

Solicitors:

Square Legal Chambers, Palmerston North for Appellant BV+A The Practice, Palmerston North for Respondent