Harawira v The Queen

[2014] NZCA 8

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 470/2013
[2014] NZCA 8

BETWEEN	MAU TOA HARAWIRA Appellant
AND	THE QUEEN Respondent

Hearing:	10 February 2014
Court:	Harrison, Rodney Hansen and Dobson JJ
Counsel:	B L Sellars for Appellant G H Vear for Respondent
Judgment:	19 February 2014 at 3.00 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

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REASONS OF THE COURT

(Given by Harrison J)

Introduction

1. Mau Harawira pleaded guilty in the District Court at Auckland to charges of injuring with intent to injure and theft.  He was convicted and sentenced by Judge David Harvey on both charges to concurrent terms of three years and two months imprisonment. [1]  He appeals against that sentence on the ground that it is manifestly excessive.  In particular his counsel, Ms Sellars, submits that (a) the starting point adopted by the Judge was too high and (b) insufficient credit was given for Mr Harawira’s pleas of guilty and remorse.

Facts

[1]R v Harawira DC Auckland CRI-2012-004-019883, 1 July 2013.

1. One afternoon in August 2012 Mr Harawira and his two co-offenders were drinking alcohol at Blockhouse Bay Beach.  A 12 year old boy, AB, was also there.  He allegedly mouthed some abusive words at the three men.  As a result, Mr Harawira and the two others chased AB who ran a short distance to his home nearby. 

2. Following a disputed facts hearing, Judge Harvey found that a short time later Mr Harawira and his co-offenders entered AB’s house.  Mr Harawira called out for AB.  He found the boy in his bedroom.  He approached him from behind and slapped him over the head with an open hand and then on the face several times.  He grabbed him and threw him on to the floor.  As he fell, AB struck his head on some weightlifting equipment.  Mr Harawira and one of his co-offenders then punched and kicked AB around the head and torso as he lay on the ground while attempting to defend himself.  They then dragged him by his hair and arms out of the bedroom and on to the front deck where Mr Harawira’s co-offender slapped him around the head several times.  The attackers only withdrew because a neighbour remonstrated with them.

3. As a result of the attack, AB suffered bruising to his neck, nose and chest.  He was admitted to hospital for examination but later discharged.

4. Immediately after the attack, Mr Harawira removed miscellaneous items including a Sony Playstation 3 from AB’s bedroom.  The total value of the stolen goods was about $1,200.00.  Mr Harawira disposed of the goods, although some time later he bought a second-hand Playstation to replace the stolen item.

Sentence

1. Judge Harvey adopted a starting point for the sentence of three and a half  years to take account of the four aggravating factors identified by Ms Vear, namely that (a) the victim’s head was attacked; (b) there were multiple offenders; (c) there was an element of a home invasion; and (d) AB was vulnerable, particularly because of his age.  The Judge emphasised the elements of deterrence and denunciation.  In his assessment the case fell into the category of serious offending which justified a starting point of between two and five years imprisonment.[2]

Appeal

[2]Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [38](c).

1. Ms Sellars submits that a starting point of three and a half years imprisonment was excessive; and that one in the range of two years six months to three years was appropriate.  She emphasises that the offence carries a maximum sentence of five years imprisonment.  While accepting the presence of two serious aggravating features – the home invasion and the vulnerable victim – she says that the level of injury and violence placed Mr Harawira’s offending near the bottom of the scale for this type of offending.

2. Ms Sellars submits that the Judge used unduly emotional language; failed to take proper account of Mr Harawira’s limited intent to frighten AB and cause some but not serious harm; and gave undue weight to the seriousness of the circumstances of the offending without an appropriate evaluation of Mr Harawira’s culpability in terms of the seriousness of his intent to injure. 

3. We reject Ms Sellars’ submission.   This was a serious and sustained assault committed by three grown men upon a 12 year old boy in his own home.  The Judge correctly identified and gave proper weight to the four aggravating features.  We accept that two of the four may have been at the lower end of the scale.  But in combination they justified the starting point which was adopted.  It is well accepted that the bands do not provide an inflexible formula.  The severity of one aggravating factor can lift the offending into another band.[3]  In this case, the combination of factors does just that.

   [3]See Nuku, ibid, at [40], [42]–[43].

4. In our judgment the degree of Mr Harawira’s culpability was high both in comparative and absolute terms.  It is also relevant in this context that the attack had serious emotional consequences both for the victim and his wider family.  Also, as Ms Vear points out, the Judge could have taken into account the additional factor of Mr Harawira’s theft of AB’s property which had special value for him; that factor alone might have justified an increase in the base starting point by six months imprisonment.

5. The Judge allowed Mr Harawira a reduction from the starting point of ten  per cent or four months imprisonment in recognition of his plea of guilty.  Ms Sellars submits that this credit was insufficient.  She says it failed to recognise that, shortly after he was first charged in October 2012, Mr Harawira expressed his willingness to enter guilty pleas.  The pleas were entered within a month of the first callover.  However, a disputed facts hearing was necessary because Mr Harawira contested the extent of his participation.  That hearing occurred during the course of the trial of Mr Harawira’s two offenders which would have occurred regardless of his pleas.

6. However, Judge Harvey rejected Mr Harawira’s account of the attack and his attempt to minimise his participation.  In our judgment that disqualified Mr Harawira from receiving much of the benefit he might have otherwise obtained for his reasonably early pleas.  It reflects a failure to take full responsibility for his offending, as Ms Vear emphasises, and is incompatible with his expression of remorse.  Also, even though Mr Harawira has taken some steps to compensate AB, the fact is that AB suffered a significant financial loss as a result of the offending.

Result

1. We accept that the sentence was stern.  But we are satisfied it was within range.  We are not satisfied that the Judge erred.  Mr Harawira’s appeal is dismissed.

Solicitors:           

Crown Law Office, Wellington for Respondent