Haimona v Police - [2018] NZHC 472

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2017-419-88

[2018] NZHC 472

BETWEEN
WILLIAM WERA HAIMONA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 20 March 2018

Appearances:

LS Caley for Appellant ARA Pell for Respondent

Judgment:

20 March 2018

ORAL JUDGMENT OF TOOGOOD J

Haimona v New Zealand Police [2018] NZHC 472 [20 March 2018]

Introduction

[1] William Wera Haimona pleaded guilty to nine charges of burglary, each of which carries a maximum sentence of 10 years’ imprisonment,1 and one charge of theft of property exceeding $1,000, which carries a maximum penalty of seven years’ imprisonment.2

[2] Mr Haimona was sentenced to a term of three years’ imprisonment by Judge T R Ingram in the District Court at Hamilton on 6 December 2017.3 He now appeals that sentence.

Offending

[3] The facts to which Mr Haimona pleaded guilty were that nine burglaries were committed in Hamilton by two others and him over ten days. The co-offenders were not each involved in all of the nine burglaries which Mr Haimona committed, and he appears to be solely responsible for the theft. However, they targeted houses during the day when the occupants were not at home – or when they believed the occupants were not at home. In some, at least, of the cases they disabled the power externally and then searched the house before leaving by car.

[4] On 15 August 2017, Mr Haimona and the others forced the door of a house and took a bag of clothing. Four days later, they disabled power to a property; forced entry; searched the property and took clothes, shoes, credit cards and electronics, including two television sets, an Xbox, two laptops and a PlayStation.

[5] On 24 August, the three disabled the power at a third property; entered the house and took belongings valued over $7,000 including televisions, a laptop, jewellery and clothing. They also took a Ford Thunderbird 2005 sports car worth
$50,000. I pause here to observe that the alleged co-offenders have denied involvement in that burglary.

1      Crimes Act 1961, s 231.
2      Crimes Act 1961, ss 219 and 223 (b).
3      Police v Haimona [2017] NZDC 27650.

[6] Mr Haimona committed three burglaries the following day. At the first property, they turned the power off; kicked in the front door; searched the property and took electronics and jewellery worth around $2,000. They did the same at a second property, taking clothing and jewellery valued over $5,000. They broke into the neighbouring property by forcing the door, and took electronics valued at least
$3,500.

[7] Three further burglaries were committed on 25 August 2017. At the first property, a garage was entered and various tools were taken. At the second, Mr Haimona waited in the car while the others cut the power line to the house; forced the door; took a set of keys and left with a car worth $5,000. At the third, the three cut the power and then…

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.

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Details

Case: [2018] NZHC 472
Decision Date: 20 March 2018

CaseChat Overview and Summary

William Wera Haimona appeals against his sentence for burglary and theft, arguing it was manifestly excessive. He pleaded guilty to nine charges of burglary, each carrying a maximum penalty of 10 years’ imprisonment, and one charge of theft of property exceeding $1,000, which carries a maximum penalty of seven years’ imprisonment. The offending was committed in Hamilton over ten days by Haimona and two others. The District Court Judge imposed a starting point of three years’ imprisonment, and an uplift of six months for the theft of an iPhone and another six months for offending while subject to release conditions. The Judge then imposed the full 25 per cent discount for the guilty pleas. Haimona appeals on the grounds that the sentence was manifestly excessive, and that the Judge should have given credit for Haimona’s remorse and personal circumstances, and for his assistance to police, leading to recovery of the stolen Ford Thunderbird. Haimona submits that an eight per cent discount is appropriate to reflect his genuine remorse, and a further discount of 25 per cent should be allowed for his cooperation with police and his willingness to give evidence. The respondent submits that the combined discount for pleas, remorse and cooperation would be grossly excessive compared to relevant cases. The High Court held that the District Court Judge erred in not according some discount for remorse and cooperation. While a discount of 20 per cent in addition to the guilty plea discount was not inconsequential, the sentence imposed was not manifestly excessive. The Court held that a starting point of between four and a half years’ and five years’ imprisonment would have been appropriate. Applying the discounts, the Court held that an end sentence of 33 months was appropriate. The appeal was allowed; the sentences imposed were quashed; and sentences of two years and nine months’ imprisonment on each charge, to be served concurrently, were imposed.

Orders