Hafoka v The King

[2023] NZHC 1804

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-231

[2023] NZHC 1804

BETWEEN

SAVINATA HE-’I-MULI HAFOKA

Appellant

AND

THE KING

Respondent

Hearing:	10 July 2023
Appearances:	IM Stewart for the Appellant H Smith for the Crown
Judgment:	10 July 2023

ORAL JUDGMENT OF BECROFT J

[As to appeal against sentence]

Solicitors/Counsel:

Meredith Connell, Auckland IM Stewart, Auckland

Hafoka v R [2023] NZHC 1804 [10 July 2023]

The appeal

[1]    Savinata He-’I-Muli Hafoka appeals the sentence imposed upon him by Judge McDonald in the Waitakere District Court of 23 months’ imprisonment for possession of 23.8 grams of cocaine for supply.1

[2]    He was arrested and charged on 16 September 2022. He pleaded guilty on 23 January 2023 and was sentenced on 3 May 2023. He was not granted bail in the District Court pending determination of this appeal. However, he was granted bail in this Court on 9 June 2023 having, at that stage, served over a month in prison.

[3]Mr Hafoka appeals on two grounds:

·First, that the learned District Court Judge erred in adopting only a 15 per cent discount for the appellant’s guilty plea.

·Second, that he wrongly declined to impose home detention instead of imprisonment. It is submitted that the learned Judge placed too much weight on the presumption of imprisonment contained in s 4(6) of the Misuse of Drugs Act 1975, that he failed to give proper weight to the appellant’s personal circumstances and that he misunderstood the pre-sentence report and wrongly concluded that Mr Hafoka was deemed “unsuitable” for a sentence of home detention.

[4]    This is a relatively rare case where the Crown considers there is merit in the second ground of appeal which challenges the non-imposition of home detention. That being the case, I am giving a decision now so that Mr Hafoka, who is here in Court, can know the result and plan accordingly.

The facts

[5]    On 16 September 2022, Mr Hafoka was arrested following the execution of a search warrant at his then home address in Green Bay in suburban Auckland. When

1      R v Hafoka [2023] NZDC 8567. Offence under the Misuse of Drugs Act 1975, s 6(1)(f). Maximum penalty for which is life imprisonment.

the Police arrived at the address and began executing the search warrant, Mr Hafoka pointed out several ziplock bags containing cocaine which were in his bedroom. The Police also located scales at the address.

[6]    The appellant advised the Police that the cocaine was his. He was subsequently arrested and charged. It was later confirmed that the amount of cocaine was 23.8 grams, not 34 grams as initially alleged.

Reports obtained before sentence

[7]Significant and detailed reports were obtained prior to sentencing.

[8]    The cultural report outlined the difficulties Mr Hafoka was experiencing at the time of offending. He had been in a serious accident. He was facing significant financial and relationship stress. His partner commented that his offending was definitely an exception to his normal character.

[9]    The pre-sentence report emphasised that he was at low risk of re-offending; had good chances of rehabilitation; that there was a suitable address for electronic monitoring, but said he was considered unsuitable “due to the transient nature of his work”.

[10]   I observe that was an unfortunate choice of words by the Probation Officer. A detailed reading of the report would point to Mr Hafoka’s suitability, but that his then current job installing kitchen bench tops would make home detention difficult, if not impossible, to undergo. He was, however, recommended as suitable for community detention.

The District Court sentence

[11]   In his sentencing, Judge McDonald correctly emphasised the seriousness of the charge carrying with it, as it does, life imprisonment as the maximum sentence. The Judge emphasised the need to hold Mr Hafoka accountable, and the need to denounce and deter his behaviour.

[12]   A starting point of two years three months’ imprisonment, not challenged on appeal, was adopted. The Judge concluding that Mr Hafoka was what might be called a “street [level] dealer in cocaine”. His offending was clearly for commercial gain and, in his view, was relatively serious.

[13]   The learned Judge was not prepared to give anything like a full discount for Mr Hafoka’s plea. It was his view that a much earlier plea, in 2022, could have been entered. Any dispute about the amount of cocaine and background circumstances could then have been resolved by a disputed facts hearing. While a full 25 per cent reduction was supported by the Crown, the Judge concluded that no more than a 15 per cent reduction was justified.

[14]   The Judge noted Mr Hafoka’s accident and financial difficulties led him into drug dealing but emphasised that he got in it to make money and that there was no causal nexus between his upbringing and offending set out in the cultural report of the kind that would often be present.

[15]   He also noted, but did not further analyse, the conclusion in the pre-sentence report that Mr Hafoka was considered unsuitable for home detention due to the transient nature of his work for a company which specialises in installing kitchen bench tops made of stone.

[16]   The Judge was not prepared to impose a sentence of community detention because he said:2

[19] Community detention was put into our Sentencing Act 2002 primarily aimed at boy racers, so they had to stay at home over the weekend so they could not go out racing their cars. Now it seems to be almost a go-to sentence for all manner of offending, including offending like yours, to suit you, not suit the community, not to pay something back to the community, not to protect the community but to suit you because you want to continue working in installing these kitchen benches.

[17]   In the Judge’s view, in returning to the presumption of imprisonment in the Misuse of Drugs Act, he could find no particular offence-related or personal circumstance which would justify rebutting that presumption. He concluded that, even

2      R v Hafoka [2023] NZDC 8567.

bringing the start point of 27 months’ imprisonment down by 15 per cent, the 23-month sentence of imprisonment would still have to be served, and that any form of electronic sentencing was unjustified in the circumstances.

Approach on appeal

[18]   As has been emphasised by the Court of Appeal, a proper approach on a sentence appeal is as follows:3

[14] This Court must allow the appeal if it is satisfied that for any reason there was an error in the sentence imposed on conviction and a different sentence should be imposed.4 The focus is on the sentence imposed, rather than the process by which it is reached.5 The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.6 To this end the concept of a “manifestly excessive” sentence is well-engrained and there is no reason not to use it.7

[19]   The meaning of manifestly excessive, however, is not conceptually vague and should not be considered in a vacuum. As was noted in Tutakangahau:8

It is simply a means of examining the significance of the error to decide whether a different sentence should be imposed. The claim that a sentence is manifestly excessive (or inadequate) is inevitably premised on the contention of a prior error which often will involve questions such as whether the starting point is too high given the facts, or of incorrect discounts or as to parity with co-offenders.

[20]   Generally, there will be an error if the sentence is manifestly excessive, or involved an error in law or principle, is plainly inappropriate, or proceeded on a materially wrong or mistaken understanding of the facts.

[21]   An appellant must point to such an error, either intrinsic to the Judge’s reasoning, or as a result of additional material submitted on the appeal, which vitiates the sentencing decision.9 I remind myself that as an appeal focusses on the correction of error, it is not “a second shot at sentencing”.10

3      Campbell v R [2022] NZCA 579.

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

5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

6 At [36].

7 At [35].

8 At [32].

9      R v Shipton [2007] 2 NZLR 218 (CA); and Te Aho v R [2013] NZCA 47 at [30].

10     Polyanszky v R [2011] NZCA 4 at [17].

[22]   Home detention is a focus of this appeal. Home detention is a sentence that is an alternative to a short-term sentence of imprisonment.11 The court must be satisfied that the purposes for which that sentence is being imposed cannot be achieved by any less restrictive sentence.12

[23]   As to the challenges facing a sentencing Judge in deciding whether to impose a fulltime prison sentence, or a sentence of home detention, the Court of Appeal, in 2013, observed:13

[30]              … [T]he judge must make a considered and principled choice between the two forms of sentence, recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.

[31]                Sometimes, as this Court said in R v D (CA253/2008), that can prove a very difficult exercise of judgment; and “the closer one gets to the dividing line, the more difficult it becomes to articulate reasons for preferring one approach to the other”.14 …

First ground of appeal: the 15 per cent deduction for the guilty plea

[24]   The Judge was clear that no more than a 15 per cent deduction could be allowed for the guilty plea. I note that the Crown, fully aware of all the background circumstances leading up to the plea, was clear at the sentencing that a full 25 per cent reduction was available. That was a relatively unusual concession. But it reflected some difficulties with disclosure issues, case management discussions between counsel as to that disclosure, and that a favourable agreement was reached for Mr Hafoka in relation to the total amount of cocaine located. The Crown was clear that Mr Hafoka, through counsel, had signalled a very early intention to resolve the file and to plead guilty.

[25]   With respect, the Judge may have been incorrect in suggesting that Mr Hafoka had “elected trial by jury”. The record is not clear on this point. Ms Stewart does not understand that a jury trial was elected. This was not Mr Hafoka’s choice and nor did it contribute to any delay.

11   Sentencing Act 2002, s 15A(l)(b).

12   Section 15A(l)(a).

13   Fairbrother v R [2013] NZCA 340.

14   R v D (CA253/2008) [2008] NZCA 254 at [66].

[26]   The Judge referred to Hessell v R15 and the comments at paragraph [61] regarding the desirability of a subsequent disputed facts hearing if the offender’s disagreement with the prosecution case is not about their guilt of the offence but relates to the prosecution statement of facts. However, in that same paragraph, the Court emphasised:16

But the requirement that a defendant must always plead guilty before entering the disputed facts process to get the maximum discount is too rigid. The better course is to permit sentencing judges to assess the value of the plea in the particular circumstances, without a rigid requirement for application of a scale of discounts dependent on the exact timing of the plea.

[27]   In this case, simple reliance on the chronology overlooks the early indication of a guilty plea and the Crown’s own assessment that the delay in clarifying disputed material was reasonable and, indeed, justified a full 25 per cent reduction.

[28]   Mr Smith, for the Crown, very responsibly indicated that, in any case, if the disputed fact procedure suggested by the Judge was adopted in this case, it would likely have prolonged matters. The case would have been remanded for resolution in the Judge-alone trial list, which may have taken much more time (given court delays and pressure of other cases) than in fact was taken here. That concession is a matter of pragmatic reality rather than principle. But certainly, the reality of court delays cannot be factored out of counsel’s decision here. Ms Stewart is of the view that she acted responsibly and carefully at all times in a way that resolved the case in the fastest possible way.

[29]   With great respect, I think it was an error for the Judge to only allow a reduction of 15 per cent for a guilty plea. The reduction allowed was in error. I think it arguable that many District Court Judges in those circumstances would have given a 25 per cent discount. That, however, is a legitimate matter of judicial discretion over which Judges will understandably differ.

[30]   In the circumstances, at least a 20 per cent reduction is appropriate and principled.

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

16 At [61].

[31]   That being the case, the 27-month sentence should have been reduced by 5.4 months. I round that to six months. Therefore, the end sentence should have been 21 months, not the 23 months imposed by the Judge. I have stepped back to assess whether the difference in those two sentences constitutes the former being “manifestly excessive”. It is a finely balanced decision. Appeal courts should not “tinker” with sentences. But here, given the initial sentence was under two years, even the two- month reduction is significant enough to mean the original sentence should be considered manifestly excessive.

Second ground of appeal: the imposition of a prison sentence rather than home detention

[32]   The issue of the appropriateness of home detention is the real issue in this appeal.

[33]   In the appellant’s view the Judge was overly focussed on the Misuse of Drugs Act presumption of imprisonment, and there was not a principled assessment of all the facts of the offence and the offender, which, if carried out, would have rebutted the presumption.

[34]   Amongst other things, Ms Stewart points to the relatively low amount of cocaine; the lack of evidence pointing to the drug dealing being otherwise than of short-term duration; Mr Hafoka’s age; that he was clearly remorseful; was at low risk of further offending; had good prospects of rehabilitation; had a job; and was well spoken of. These are all circumstances which the Crown agrees, when carefully considered, could lead an appeal court to conclude that the presumption of imprisonment could be countered.

[35]   The Crown also accepts that having reached an end sentence under 24 months, the learned Judge did not go on to consider the distinction between home detention and imprisonment, and that home detention can also serve the purposes of denunciation and deterrence and did not provide a reasoned decision between the two. The Crown concludes that this Court may find that the presumption in the Misuse of Drugs Act was used to gloss over a principled assessment required under the Sentencing Act 2002.

[36]   That was the crux of Ms Stewart’s comprehensive submissions. I agree, to that extent, there was an error here in the sentencing. It was compounded by the Judge’s conclusion that home detention was unavailable because of the nature of the defendant’s work. The Judge lifted that section out of the report. And he quoted it accurately. But a careful reading of the report clearly does not consider Mr Hafoka as personally unsuitable. The report points, instead, to difficulties with home detention if Mr Hafoka’s full work requirements were to be continued. That is a quite different issue from personal suitability for home detention. Mr Hafoka was a first offender in terms of drugs or drug supply, although noting that seven and nine years ago there were separate convictions for alcohol-related driving offences.

[37]   The Crown agrees with this assessment of the report and notes there is no prohibition on working while serving home detention. Indeed, that is specifically allowed for in the standard conditions of home detention. In any case, the mere fact of Mr Hafoka being in fulltime employment would not have made a sentencing outcome of home detention inappropriate.

[38]   It seems to me that the Judge proceeded on a poorly phrased pre-sentence report. In what was no doubt the challenge of a busy District Court sentencing list, he failed to appreciate that the pre-sentence report had not absolutely concluded that Mr Hafoka was, himself, unsuitable for home detention, although that is what it said.

[39]   I must say this case is an object lesson for far more thoughtful and considered report writing where, as here, the pre-sentence report and the suitability for home detention report are collapsed into one report. A specific home detention report would have likely avoided the very problem that eventuated here.

Conclusion

[40]   In this case, the inevitable conclusion is that the sentence of 21 months’ imprisonment should have, when carefully considered, resulted in a sentence of home detention. Such a sentence, taking into account the purposes and principles of sentencing, better qualifies as the least restrictive sentence to impose. Mr Hafoka has already served about one month and one week in prison. In the course of submissions, I indicated that an end sentence of eight months home detention, in my view, seemed

appropriate. Both Ms Stewart and Mr Smith immediately accepted this would be an appropriate result.

[41]   Mr Hafoka, your appeal is successful. The sentence is quashed. You are sentenced instead to eight months home detention on the standard conditions under s 80C of the Sentencing Act.17 I specifically note there is a condition that you are permitted to engage in employment as approved by a Probation Officer in conjunction with your current employer, but, in the end, the decision regarding the latitude to be allowed to do so is one for your Home Detention Officer.

[42]There are also two special conditions:

·First, you attend an assessment for any appropriate programme, counselling or treatment as directed by your Probation Officer.

·Second, you attend and complete any programme, counselling or treatment as recommended by that assessment as directed by, and to the satisfaction of, your Probation Officer.

[43]   The standard post-detention conditions of home detention will apply. Those conditions will continue until six months after your sentence end date. There are no special conditions sought in this case.

Becroft J

17     Sentencing Act 2002, s 80C(2).