Hakaoro v R - [2014] NZSC 169

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IN THE SUPREME COURT OF NEW ZEALAND

SC 76/2014
[2014] NZSC 169

BETWEEN	HAKAORO HAKAORO Applicant
AND	THE QUEEN Respondent

Court:	McGrath, Glazebrook and O'Regan JJ
Counsel:	M E Goodwin for Applicant J E Mildenhall for Respondent
Judgment:	20 November 2014

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Mr Hakaoro seeks leave to appeal against a decision of the Court of Appeal dismissing his appeal against sentence.[1] The sentence against which he appealed was imposed in the Manukau District Court by Judge Paul after Mr Hakaoro pleaded guilty to six charges of providing immigration advice without a licence and one charge of holding himself out as an immigration adviser without a licence. The sentence imposed in the District Court was a term of imprisonment of one year and eight months.[2]
[1]Hakaoro v R [2014] NZCA 310.
[2]Department of Labour v Hakaoro DC Manukau CRI-2011-92-19106, 22 January 2014.
The two grounds of appeal which Mr Hakaoro seeks to advance in this Court are that the Court of Appeal erred in law in finding that it was open to the District Court Judge:
(a)to rely upon the probation officer’s unsubstantiated opinion, expressed in the pre-sentence report, that Mr Hakaoro lacked remorse, even in the face of independent evidence to the contrary in the report of a restorative justice facilitator; and
(b)to rely solely upon the probation officer’s opinion in finding that home detention could not be granted.
In Burdett v R, this Court made it clear that leave to appeal in relation to sentencing decisions of the Court of Appeal will be granted in only rare cases where some important question of general principle arises, such as the jurisdiction for the imposition of a sentence, or where there is plainly an appearance of a substantial miscarriage of justice.[3]
[3]Burdett v R [2009] NZSC 114 at [4].
The Court of Appeal heard evidence from Mr Hakaoro, his brother and the probation officer who wrote the pre-sentence report. The probation officer was cross-examined by Mr Hakaoro’s counsel. The Court of Appeal, having heard that evidence, determined that the pre-sentence report accurately recorded Mr Hakaoro’s position as it had been conveyed to the probation officer, subject to one error relating to the duration of Mr Hakaoro’s relationship with his partner.[4]
[4]Hakaoro v R, above n 1, at [17].
What is more, the Court also found that the pre-sentence report was incomplete because the probation officer had not been made aware of other facts relating to Mr Hakaoro which reflected badly on him. In particular, the probation officer was not aware that Mr Hakaoro had, before the offending for which he was sentenced had come to light, obtained an immigration adviser’s licence, which was then cancelled by the Immigration Advisers Complaints and Disciplinary Tribunal.[5]…

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 Hakaoro v R

Details

AGLC: Hakaoro v R [2014] NZSC 169
Case: [2014] NZSC 169
Decision Date: 20 November 2014

CaseChat Overview and Summary

In the Supreme Court of New Zealand, Mr Hakaoro sought leave to appeal against the Court of Appeal's decision to dismiss his appeal against the sentence imposed on him by the Manukau District Court. The case involves six charges of providing immigration advice without a licence and one charge of holding himself out as an immigration adviser without a licence. The District Court imposed a term of imprisonment of one year and eight months. Mr Hakaoro's grounds for appeal were that the Court of Appeal erred in law by allowing the sentencing judge to rely on the probation officer's unsubstantiated opinion that he lacked remorse, and by relying solely on the probation officer's opinion in finding that home detention could not be granted.

The legal issues before the court were whether the Court of Appeal erred in its findings and whether there was an arguable point of appeal that warranted leave to appeal. The court noted that leave to appeal in sentencing decisions is granted in rare cases where an important question of general principle arises or where there is plainly an appearance of a substantial miscarriage of justice. The court examined the evidence presented to the Court of Appeal and found that the pre-sentence report accurately recorded Mr Hakaoro's position as conveyed to the probation officer, subject to one error relating to the duration of his relationship with his partner. The court also found that the pre-sentence report was incomplete because the probation officer was not aware of other facts relating to Mr Hakaoro which reflected badly on him.

The court concluded that the proposed grounds of appeal focused on factual matters that had been thoroughly considered by the Court of Appeal. The court found that the pre-sentence report contained no errors disadvantageous to Mr Hakaoro and that there was no arguable point of appeal. The application for leave to appeal was dismissed.

No further orders were made by the court.

Orders