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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hafoka v The King

Details

AGLC: Hafoka v The King [2023] NZHC 1804
Case: [2023] NZHC 1804
Decision Date: 10 July 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Savinata He-’I-Muli Hafoka appealed against a 23-month imprisonment sentence imposed by Judge McDonald in the Waitakere District Court for possession of 23.8 grams of cocaine for supply. Hafoka argued that the District Court Judge erred by granting only a 15 per cent discount for his guilty plea and by declining to impose home detention instead of imprisonment. He contended that the Judge had misunderstood the pre-sentence report, which did not deem him unsuitable for home detention, but rather noted difficulties due to the transient nature of his work.

The court considered the appropriate approach to a sentence appeal, which focuses on whether there was an error in the sentence imposed and whether a different sentence should be imposed. The court found that the 15 per cent discount for the guilty plea was insufficient, and at least a 20 per cent reduction was appropriate. Regarding the imposition of a prison sentence, the court concluded that the District Court Judge had not properly assessed all the facts and had placed undue emphasis on the Misuse of Drugs Act presumption of imprisonment. The court found that home detention would have been a more appropriate and less restrictive sentence, considering Hafoka's low risk of re-offending, good prospects of rehabilitation, and remorse.

Hafoka’s appeal was successful. The sentence was quashed, and he was sentenced to eight months of home detention on the standard conditions, with two special conditions related to assessment and treatment. Hafoka had already served about one month and one week in prison.

Orders