Harema v Police

[2025] NZHC 110

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-683

CRI-2024-404-684 [2025] NZHC 110

BETWEEN

RICHARD HAREMA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

4 February 2025

Appearances:

A L Roebeck for Appellant

K H M Nihill for Respondent

Judgment:

10 February 2025

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 10 February 2025 at 4 pm

Registrar/Deputy Registrar Date: ...................................

Solicitors:           Michael Kan Law, Auckland

MC, Auckland

HAREMA v POLICE [2025] NZHC 110 [10 February 2025]

Introduction

[1]    The appellant, Mr Harema, appeals against a sentence of two years and four months’ imprisonment imposed on 25 October 2024 by Judge C M Ryan in the District Court at Auckland. Mr Harema requires leave to appeal as his appeal was filed out of time. The respondent does not oppose leave, and I grant it accordingly.

[2]Mr Harema was for sentence on the following charges:

(a)11 December 2023: breach of sentence of home detention;1

(b)17 January 2024: aggravated assault and theft under $500;2

(c)17 February 2024: providing false particulars whilst in lawful custody and having been cautioned.3

[3]    The Department of Corrections has since applied to cancel Mr Harema’s sentence of home detention.

Facts

Breach of home detention

[4]    On 1 November 2023, Judge P Winter sentenced Mr Harema to 10 months’ home detention. The sentence was imposed for threatening to kill or to cause grievous bodily harm; unlawfully getting into a motor vehicle; burglary; causing loss by deception; and assault. Judge Winter’s 10 months’ home detention reflected what would otherwise have been an end sentence of 18 and a half months’ imprisonment. It is fair to record that Judge Winter had reservations about whether Mr Harema could be relied on to comply with a sentence of home detention, but ultimately decided to give Mr Harema the benefit of the doubt.

1      Sentencing Act 2002, s 80S. Maximum penalty one year imprisonment or a fine not exceeding

$2,000.

2      Crimes Act 1961, ss 192(1)(a), 219 and 223(d). Maximum penalty three years’ and three months’ imprisonment respectively.

3      Policing Act 2008, s 32(4). Maximum penalty six months’ imprisonment or a fine not exceeding

$5,000.

[5]    Mr Harema’s home detention address was a Grace Foundation residence. On 11 December 2023, Mr Harema lied about needing to see a doctor. Grace Foundation staff took him to Middlemore Hospital, from which Mr Harema absconded. His EM tracker triggered a “no communication” alert, suggesting that he had “foiled” his bracelet.

Aggravated assault

[6]    On the basis of Judge Ryan’s sentencing note (and there is no dispute it is accurate), on 17 January 2024, and whilst he was still at large, Mr Harema tried to steal a box of Cody’s (ready to drinks) from a liquor store. The shop assistant, who was able to lock the door from behind the counter, did lock it and so  prevented     Mr Harema from leaving.

[7]    Mr Harema approached the assistant with a pair of scissors and said, “Open the door or I’ll kill you.”   The assistant  tried to defend himself  with a hockey stick;   Mr Harema raised the scissors and threw the box of Cody’s at him; and then hit him around the head. Mr Harema then pinned the assistant on the corner of the counter and hit the assistant’s head again. The assistant unlocked the door, and Mr Harema stole three or four alcohol shots on his way out.

Provision of particulars

[8]    On 17 February 2024, police apprehended Mr Harema on an unrelated matter. Mr Harema gave the police false particulars.

District Court sentence

[9]    All concerned agree the aggravated assault was the lead charge. Judge Ryan adopted a starting point of 14 months’ imprisonment, and then uplifted by six months to account for the remaining charges. This brought the sentence to 20 months’ imprisonment.

[10]   The Judge reduced the sentence by 25 percent on account of Mr Harema’s guilty pleas and by 15 percent for his addiction issues. The Judge was not persuaded

that Mr Harema’s expressions of remorse were genuine, and so refused any reduction on that score. After those reductions the Judge was at 12 months’ imprisonment.

[11]   The Judge then uplifted by three months for Mr Harema’s criminal history and by one month for offending whilst on home detention. Ultimately, the Judge settled on an end sentence of 16 months’ imprisonment.

[12]   The Judge then added her 16 months to Judge Winter’s 18 and a half months, less what Judge Ryan (generously) allowed as two months of time served. So with her 16 months, and what was now Judge Winter’s remaining 16 and a half months, the sentence was 32 and a half months’ imprisonment, which the Judge reduced  to     28 months for totality reasons.

Grounds of appeal

[13]   Ms Roebeck, counsel for Mr Harema, focused her submissions on three main points. First, she submitted the starting point on the lead charge was too high and should not have exceeded 12 months. Secondly, the six month uplift for the other offending was likewise too high and should not have been more than two and a half months for the remaining charges. Thirdly, the Judge should have allowed Mr Harema a reduction of five percent for remorse. If I accepted these submissions, and the rest of Judge Ryan’s sentence (including the reduction for totality) remained in place in addition to Judge Winter’s now 16 and a half months, Mr Harema’s end sentence would be 24 months’ imprisonment or possibly a fraction less.

[14]   The respondent opposes the appeal and submits the Judge’s starting point and uplifts were within the available range, and that she was right to decline a reduction for remorse.

Discussion

[15]   I may only allow Mr Harema’s appeal if I am persuaded Judge Ryan’s sentence was manifestly excessive. I am not so persuaded.

[16]   As to the lead charge, Mr Harema went into a liquor store intending to steal and armed with scissors. Scissors are dangerous because they can be used to stab.  Mr Harema also hit the attendant who  was  on  his  own  and  no  doubt  terrified. Ms Roebeck referred me to several other cases which  she  submitted  revealed  Judge Ryan’s starting point was too high. One, R v Waara, dates from 1995.4 It does not reflect the Taueki methodology and so is of no assistance.5 Another, Ruka v Police, concerns less serious violence and the use of a fist, as opposed to a sharp implement.6 Another,  Gray v Police,  is  equally  serious  and  the  Judge’s  starting   point  was 12 months.7 That single authority does not suffice to make Judge Ryan’s starting point too high. Having regard to the aggravating factors of Mr Harema’s offending, Judge Ryan’s 14 months was within range.

[17]   I accept Ms Roebeck’s submission that the six month uplift for the remaining offending might be on the high side, but not by much. At Mr Harema’s then counsel’s urging, Judge Winter gave Mr Harema a chance to prove himself on home detention. Five weeks into that sentence, Mr Herma lied to the Grace Foundation, absconded, and remained at large for some time. So if six months was too high, it was only by a month or two. That was well taken care of by what I consider to be a generous reduction for totality.

[18]   As for remorse, Judge Ryan was best placed to assess whether that was or was not genuine and I do not propose to depart from her opinion on the matter.

Result

[19]   It follows that I am not persuaded the sentence was manifestly excessive and I dismiss this appeal accordingly.

Peters J

4      R v Waara CA4/95, 4 May 1995.

5      R v Taueki [2005] 3 NZLR 372 (CA).

6      Ruka v Police HC Auckland CRI-2009-404-423, 12 February 2010.

7      Gray v Police [2023] NZHC 1699.