Hajnal-Huata v Police
[2020] NZHC 424
•6 March 2020
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE
CRI-2020-416-000003
[2020] NZHC 424
BETWEEN PARIS FRASER-LEE HAJNAL-HUATA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 3 March 2020 Counsel:
M Lynch for the Appellant
L Marshall for the Respondent
Judgment:
6 March 2020
JUDGMENT OF DOOGUE J
Introduction
[1] Leave to file this appeal out of time was granted by France J on 3 February 2020.
[2] The appellant, Mr Paris Hajnal-Huata, appeals against a sentence of 28 months’ imprisonment imposed by Judge Cathcart on 3 December 2019 in the Gisborne District Court.1
[3] The charges are possession of cannabis for the purpose of supply,2 and two charges of possession of a cutdown .22 rifle.3
1 Police v Hajnal-Huata [2020] NZDC 26459.
2 Misuse of Drugs Act 1975, s 6(1)(f). Category 3. Maximum penalty of eight years’ imprisonment.
3 Arms Act 1983, s 45(1). Category 3. Maximum penalty of four years’ imprisonment or a fine of
$5,000.
HAJNAL-HUATA v NEW ZEALAND POLICE [2020] NZHC 424 [6 March 2020]
[4]Mr Hajnal-Huata appeals on three grounds:
(a)that the Judge erred in relying on Kawiti v R in adopting a starting point that was too high;4
(b)that it would have been appropriate to convert a qualifying sentence of imprisonment to home detention; and
(c)that, in any event, an error in calculation meant that the end sentence should have been 27 months.
[5] In addition, if the appeal is allowed, Mr Hajnal-Huata seeks leave for any qualifying sentence to be converted to home detention.
Factual background
[6] The police located the first firearm concealed in a bag in the bedroom of one of the children of Mr Hajnal-Huata, when they executed a search warrant. They located the second firearm at the alleged co-offender’s address, when they executed a different search warrant.
[7] The police also located approximately 11 pounds of cannabis head material at the alleged co-offender’s address, some of which was in a bag in a linen cupboard in the hallway of the address. The remainder was in a sports bag under a bed in a second bedroom. The cannabis had been vacuum-packed, sealed and bagged, each bag weighing approximately one pound. It is estimated to have a street value of $44,000.
$4,000 in cash was located on the kitchen table of the address. Police located six mature cannabis plants growing in the alleged co-offender’s yard, and a small amount of cannabis inside the house. The alleged co-offender admitted to growing these plants, and having possession of the small amount of cannabis for personal use.
[8] When interviewed by police, Mr Hajnal-Huata stated that both of the firearms were his, as was the 11 pounds of cannabis.
4 Kawiti (aka Brown) v R [2014] NZCA 222.
District Court decision
[9] The Judge held that the offending fell within category 2 of R v Terewi,5 as adjusted for possession of cannabis for supply offending according to R v Keefe.6 The Judge referred to the competing submissions as to the starting point and referred to Kawiti v R, finding that it had similarity with Mr Hajnal-Huata’s offending.7 In Kawiti the Court of Appeal dealt with an appeal where the original starting point of three years, nine months’ imprisonment in respect of a charge of possession of cannabis was not challenged.8 The estimated yield of the cannabis and head material found was
5.2 kilograms to the value of somewhere between $46,000 and $52,000 if sold by the ounce. The Judge also referred to the decisions cited by counsel for Mr Hajnal-Huata, namely R v Moore, R v Ngatai and R v Cooper.9
[10] Having compared those cases, the Judge found it difficult to find a principle- based comparison between them as they appeared to be “out of line with one another”.10 In the circumstances he considered the best approach was to return to first principles while being guided by these cases. He then said that given the amount of cannabis found and the fact that it was for the purpose of supply, he considered a starting point of three years, four months’ imprisonment was appropriate by reference to such principles.
[11] The Judge gave an uplift, finding the firearm offending linked to the drug offending was an aggravating factor. He set the uplift for this at six months. He also gave an uplift for Mr Hajnal-Huata’s earlier convictions for the use of firearms. He gave an uplift of two months in accordance with Orchard v R.11
[12] He then turned to issues of mitigation. He considered the cultural assessment (prepared under s 27 of the Sentencing Act 2002), the pre-sentence report and Mr Hajnal-Huata’s expressions of remorse in his letter to the Court. He accepted that
5 R v Terewi [1999] 3 NZLR 62 (CA).
6 R v Keefe CA275/02, 28 November 2002.
7 Kawiti v R, above n 4
8 Kawiti v R, above n 4
9 R v Moore [2013] NZHC 1427; R v Ngatai [2014] NZHC 186; R v Cooper [2013] NZHC 170.
10 Police v Hajnal-Huata, above n 1, at [10].
11 Orchard v R [2019] NZCA 529.
the remorse was sufficient for him to recognise that beyond what was inherent in his guilty pleas. He deducted two months for remorse.
[13] He also gave a deduction of 10 months for personal circumstances linked to the cultural assessment.
[14] Finally, he gave a discount for early guilty pleas at the maximum rate of 25 per cent. He arrived at the following sentences:
(a)On the charge of possession of cannabis for supply – 28 months’ imprisonment.
(b)On the charge of possession of the .22 firearm – 12 months’ imprisonment, concurrent.
(c)An order for destruction of the firearms.
[15]The sentencing exercise is summarised in table format below:
Description Date
Starting Point
Possession of cannabis for supply 17 October 2019 40 months Uplift for two possession of a cut down .22 rifle charges + 6 months Uplift for previous convictions for use of firearms + 2 months Reduction for remorse - 2 months Reduction for personal circumstances - 10 months Guilty plea discount - 8 months (25%) End sentence 28 months
Approach to appeal
[16] This appeal is brought under s 250 of the Criminal Procedure Act 2011. An appeal against sentence is an appeal against a discretion and therefore must only be
allowed if the Court is satisfied that there has been (for any reason) an intrinsic error in the sentence imposed, and that a different sentence should be imposed.12
[17] The sentence must be either manifestly excessive or inappropriate if the appellate court is to interfere with the discretion.13
[18] The focus is on the final sentence rather than the exact process by which it was reached, and whether the sentence was in the available range.14 As articulated in R v Peters:15
As this Court has indicated on many occasions, the issue whether a sentence is manifestly excessive or manifestly inadequate or inappropriate must be examined in terms of the sentence actually passed, rather than the precise process by which it is reached. Thus, if a sentence might be the product of a starting point which is itself manifestly excessive but it is in the result ameliorated by allowances made for mitigating factors so as ultimately to be brought to a point of acceptability, this Court will be disinclined to intervene through concern over any particular component.
[19]The appeal poses three questions:
(a)Did the Judge err in relying on Kawiti v R in adopting a starting point that was too high?
(b)If the appeal is successful on the first point, and should the fresh sentence be within the range of 24 months, would it be appropriate to convert the sentence to home detention?
(c)Was there, in any event, an error in calculation meaning that the end sentence should have been 27 months?
12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
13 Affleck v Police [2017] NZHC 3220 at [9].
14 Ripia v R [2011] NZCA 101 at [15].
15 R v Peters CA12/03, 14 May 2003 at [13].
Did the Judge adopt a starting point that was too high?
Appellant’s submissions
[20] Mr Lynch for Mr Hajnal-Huata submitted that the Judge placed heavy reliance on Kawiti, which involved cultivation, possession for supply and manufacturing cannabis charges relating to 8.8 kilograms of cannabis.16 Further, Mr Lynch submitted that the Judge did not take sufficient account of the additional charges in that case. The defendant in Kawiti also had 3.5 kilograms of cannabis leaf – which could be turned into cannabis oil – raising the value from the $46,000 to $52,000 estimate (which only related to the cannabis head). The starting point in Kawiti took into account the additional facts that Mr Kawiti was growing the cannabis and manufacturing cannabis oil, too.17 Those were seriously aggravating features not present in this case.
[21] Mr Lynch cited other cases to illustrate that there have been a significant number of cases involving more serious offending and yet lower starting points than in the present case.18
[22] Mr Lynch argued that the offending falls into band two of the Terewi decision,19 with reference to Keefe,20 in other words, small-scale cannabis offending involving a commercial purpose. The Court in those cases said the starting point was generally between two and four years, perhaps less where sales are infrequent and to a very limited extent.21
[23] Mr Lynch submitted that the Judge was wrong to place the offending at the high end of band two. He said the features which appear to have led him to do this are the amount of cannabis and the potential yield. He characterised Mr Hajnal-Huata’s role as someone acting at a level slightly higher than a street dealer. That, he said,
16 Kawiti v R, above n 4
17 Kawiti v R, above n 4
18 R v Cooper, above n 9; R v Moore, above n 9; R v Sharpe HC Rotorua CRI-2010-063-004641, 22 July 2011; Kennedy v Police [2017] NZHC 3066; R v Akuhata DC Gisborne CRI-2016-016- 000761, 14 July 2017; Akuhata v R [2017] NZHC 2237.
19 R v Terewi, above n 5.
20 R v Keefe, above n 6.
21 R v Terewi, above n 5, at [4].
means that the starting point should have been at the lower end of band two from Terewi,22 and a starting point of something in the region of two years to two years, six months’ imprisonment should have been imposed. That being the case, he submitted that the difference between what the Judge imposed as a starting point (three years, 10 months) and the suggested starting point (two years, six months) makes the sentence imposed manifestly excessive.
Respondent’s submissions
[24] Ms Marshall for the respondent acknowledged the initial error in calculation of one month but submitted that the starting point was not too high, that the uplift for firearm possession was modest and the discount for personal circumstances was generous. She submitted that in adopting a starting point of five months less than in Kawiti, the Judge did acknowledge and account for the differences in severity of offending.23 She cited Police v Bevans and R v Duncan, which had starting points of two years, six months and three years respectively, arguing that they were adopted for significantly less serious offending involving cannabis.24
[25] Ms Marshall accepted the starting point was towards the upper end of the band but submitted this was justified by the firearms offences which she characterised as a serious aggravating feature.25 Whilst acknowledging that the starting point of three years, 10 months was stern, Ms Marshall argued it was available to the Judge, or at the very least it was not manifestly excessive.
[26] Further, Ms Marshall argued that the adjustments for personal aggravating and mitigating features were to Mr Hajnal-Huata’s advantage. The uplift of two months for prior convictions was modest, given that Mr Hajnal-Huata has 20 prior convictions, including for cannabis and weapons offending. The reduction of one year for remorse and personal circumstances was generous, especially given that the pre-sentence report assessed Mr Hajnal-Huata as being at a high risk of reoffending and noted his active involvement with his local gang and drug use. I agree with this
22 R v Terewi, above n 5.
23 Kawiti v R, above n 4
24 New Zealand Police v Bevans [2013] NZHC 2066; R v Duncan [2009] NZCA 18.
25 R v Faifua [2011] NZCA 152: Hedges v New Zealand Police [2014] NZHC 3240.
submission. I consider that the uplift of two months for prior convictions was very modest. I also consider that the reduction of one year for remorse and personal circumstances was generous in the circumstances of this case.
Analysis
[27] The focus on appeal is whether the end sentence is manifestly excessive, rather than the means by which it is calculated.
[28] It does appear the Judge made an error in his analysis of Kawiti.26 But the case law is varied and, comparisons with other cases not demonstrating a unified or even dominant direction, the cases are only of limited assistance in an overall review of the starting point.
[29] The uplifts and deductions used by the Judge were very favourable to Mr Hajnal-Huata given all the factors outlined above, as well as the firearms being a significant aggravating feature.
[30] If the starting point was reduced as submitted by Mr Lynch and the uplifts and deductions were made less favourably to Mr Hajnal-Huata (which, given the factors operating in this case, would be entirely justified), then the outcome would be comparable with the Judge’s end sentence. Accordingly, the sentence is not manifestly excessive.
[31] I do however, need to correct the Judge’s error in calculation. One month needs to be deducted from the sentence.
Would it be appropriate to convert the sentence to home detention?
Submissions
[32] Mr Lynch submitted that if the Court saw fit to reduce the sentence and impose a qualifying sentence (a short-term sentence of two years’ imprisonment or less27), then it would be appropriate to convert the sentence to one of home detention.
26 Kawiti v R, above n 4.
27 Sentencing Act 2002, ss 80A(1)(a) and 15A(1)(b); Parole Act 2002, s 4.
[33]He referred to the following to support his submission:
(a)Mr Hajnal-Huata’s early guilty plea;
(b)the pre-sentence report writer’s recommendation for home detention;
(c)Mr Hajnal-Huata’s history of complying with community-based sentences and electronically monitored bail; and
(d)Mr Hajnal-Huata’s rehabilitative needs.
[34] Ms Marshall did not address the appropriateness or otherwise of home detention. By inference that must be because she was firmly of the view that the offending was such that a qualifying sentence could not be justified on the facts of this case.
Analysis
[35] Mr Hajnal-Huata has an extensive criminal history. He has been convicted of procurement/possession of cannabis. He has one conviction for aggravated robbery (with a firearm), three convictions for possession of an offensive weapon, and one conviction for presenting an object as a firearm. His other convictions include offending relating to violence, threatening, disorderly behaviour, property damage, breaching conditions of supervision, and escaping lawful custody. He has received four previous sentences of imprisonment in 2010, 2015, 2016 and 2019, and was sentenced to home detention in 2017. Mr Hajnal-Huata had been released from his most recent term of imprisonment approximately one month before the current offending. The principle of consistency does not support a reversion to a community based sentence now, given his prior and recent terms of imprisonment.
[36] Although recommending a sentence of home detention, the pre-sentence report also notes Mr Hajnal-Huata is at high risk of reoffending, and poses a high risk of harm to the public based on his offending history including violent offending and the use of weapons. The pre-sentence report also notes that although Mr Hajnal-Huata completed a sentence of home detention in 2016-17 without incident, he did breach a supervision sentence in 2010, and his ability to comply with a community based sentence was assessed as “medium”. While the cultural assessment notes Mr Hajnal-
Huata has recognised the impact of his offending and acknowledged his wrongdoing, the pre-sentence report records his offending related factors as anti-social associations, drug use, offending supporting attitudes, and high sense of entitlement. This is based on his significant ties with the Black Power gang.
[37] While I accept that the sentence of home detention is a serious one, I do not consider it would have been sufficient in this case, if it had been available, to achieve the purposes of denunciation and deterrence, and I do not consider it would have been appropriate in light of his previous offending and the risk he poses to the community.
Result
[38] Appeal allowed. The end sentence should be one of two years, three months’ imprisonment.
Doogue J
Solicitors:
Crown Solicitor, Gisborne
Woodward Chrisp Solicitors, Gisborne
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