Haunga v Department of Corrections

[2021] NZHC 333

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-81

[2021] NZHC 333

BETWEEN

RICK HAUNGA

Appellant

AND

THE DEPARTMENT OF CORRECTIONS

Respondent

Hearing:	1 March 2021
Counsel:	A Cranstoun for Appellant J M Xulue for Respondent
Judgment:	1 March 2021

JUDGMENT OF BREWER J

Solicitors:

Public Defence Service (Manukau) for Appellant Kayes Fletcher Walker (Manukau) for Respondent

HAUNGA v THE DEPARTMENT OF CORRECTIONS [2021] NZHC 333 [1 March 2021]

Introduction

[1]                 Mr Haunga appeals a sentence of six weeks’ imprisonment imposed by  Judge TV Clark on 16 February 2021 in respect of one charge of breaching community work.1 The maximum penalty for the charge was three months’ imprisonment or a fine not exceeding $1,000.2

[2]                 Mr Haunga contends that the sentence is manifestly excessive. In his submission, the sentence should have been community-based. Alternatively, the Judge should have cancelled the sentence of community work which was the subject of the breach charge.

[3]                 I must allow the appeal if I am satisfied that for any reason there is an error in the sentence such that a different sentence should be imposed. If the sentence is manifestly excessive then that will be an error which must be corrected.

Judge Clark’s decision

[4]                 Judge Clark’s sentence was based on her assessment of Mr Haunga’s unwillingness to complete community-based sentences:

[3]        First of all, for aggravated robbery you were sentenced to home detention which you breached. For assault with intent to injure you were sentenced to community work, which again you breached. For those breaches you were sentenced to intensive supervision which you then went on to breach. You also  have  a  conviction  for  breach  of  community  work  on 25 January 2019. You were advised by the Judge who was sentencing you then, that a harsher penalty would be likely next time around, and here we are.

[4]        You are facing a charge today of breaching your community work between 9 January 2019 and 19 June 2019. You failed to appear in court on a number of occasions with regard to that charge, only getting to the point of entering a plea on the 21 December of last year which was a good 18 months after your first appearance on this charge. So the long, drawn-out process has been down to you, Mr Haunga, not bothering to turn up to court when you are required.

1      Department of Corrections v Haunga [2021] NZDC 3151.

2      Sentencing Act 2002, s 71(1)(a).

[5]       The Judge adopted a starting point of two months’ imprisonment (eight weeks) and allowed a discount of 25 percent to account for the plea of guilty. That resulted in the final sentence of six weeks’ imprisonment.

[6]       The Judge refused to cancel the sentence of community work. The sentence was for 100 hours’ of community work and by the time of sentencing Mr Haunga still had 82.75 hours to complete.

Mr Haunga’s submissions

[7]       The first point of appeal is that the Judge should have granted an adjournment of the sentencing. Mr Haunga wanted to be considered for an electronically monitored sentence. He was living at his parents’ address and he offered that address for this purpose. The address was technically suitable for an electronically monitored sentence but, due to Mr Haunga’s father’s poor command of English, the consent form was not available. Community Corrections recommended an adjournment be granted so that the assessment for electronic monitoring could be completed.

[8]       The Judge was aware of this situation. It is clear to me that the Judge declined the adjournment because she did not consider that an electronically monitored sentence was available to Mr Haunga in the circumstances of his case. The Judge was influenced by the delay of 18 months in entering the plea of guilty and that Mr Haunga had done very little to help himself in the meantime. That is to say, he had not performed his community work (indeed, had done almost no part of the sentence of community work), nor had he taken any steps to show that he was engaging with rehabilitative courses.

[9]       The Judge was willing to consider confirmation that Mr Haunga had obtained employment and confirmation that he had been granted funding to consult a psychologist about depression. But there was nothing in writing that addressed either of those factors. The Judge said:

[10]      I was minded to  put  you back  in front  of  myself  next  week  on 25 February if Ms Cranstoun still wished to bring those matters to my attention, to perhaps change my mind about whether or not a short term of imprisonment was required. That was offered to you, however, in the end you have accepted sentencing can go ahead today.

[10]              Ms Cranstoun has informed me today that her instructions are that Corrections had arranged for its Crisis Team to assess her client because of his depression. However, there is no application to admit a fresh report, and Ms Cranstoun accepts that she cannot put anything further in front of me on that issue.

[11]              In my view, the Judge was not obliged to adjourn sentencing given the circumstances of this case. The issue remains whether the end sentence was manifestly excessive. The process by which the end sentence was reached is not the focus of the appeal.

[12]The second point on appeal is that the starting point was too high.

[13]              In her written submissions, Ms Cranstoun for Mr Haunga submits that given the low maximum penalty for the offence, and the presumption against imprisonment provided for in s 16 of the Sentencing Act 2002, the usual starting point for a single breach of community work is not one of imprisonment. Ms Cranstoun submitted that the Judge determined the starting point, incorrectly, by focusing on Mr Haunga’s past history of non-compliance, and unrelated offences, rather than the features present in the actual offence. The submission was that Mr Haunga’s history of non-compliance is only relevant to an uplift to the starting point.

[14]              This afternoon, Ms Cranstoun has had an opportunity to reflect on the case law submitted by the Crown as to the suitability of the starting point. Ms Cranstoun candidly accepts that the starting point in this case is within the range set out in the Crown’s precedents. I nevertheless consider that the facts of this particular case must be considered against the maximum sentence set out in the statute.

[15]              It is, of course, the case that the Judge was obliged to sentence Mr Haunga to the least restrictive outcome. For minor offending where the maximum period of imprisonment is short, then imprisonment should be something of a last resort. Particularly where rehabilitation is a real prospect.

[16]              In this case, Mr Haunga was sentenced to 100 hours’ community work on     7 July 2017 on a charge of assault with intent to injure. He was inducted into the

community work programme on 4 April 2018. Thereafter he virtually ignored the sentence. Between 6 January 2019 and 16 June 2019 Mr Haunga failed to report as directed, despite numerous attempts by Community Corrections to assist him in engaging with his sentence.

[17]              By the time he was charged, Mr Haunga had completed only 2.25 hours of community work. In the 18 months from the time he was charged to the time he was sentenced he had completed only 17.25 hours. In my view, this permitted the Judge to contemplate a starting point of imprisonment.

[18]              The Judge was then entitled to consider Mr Haunga’s history of breaching court orders. He had previously served sentences of community work, intensive supervision and home detention. He had convictions for breaching all of them.

[19]              The pre-sentence report quoted Mr Haunga’s reason for breaching community work as “just too lazy to be honest”. He was assessed as posing a moderate to high risk of causing harm to others because of his history of violent offending. The writer of the pre-sentence report said:

The key factors  assessed  as  contributing  to  the  current  offending  are  Mr Haunga’s lifestyle and offending supportive attitude presented as his sense of self entitlement and poor decision making.

[20]              In my view, a short sentence of imprisonment was available to the Judge as the least restrictive sentence available in the circumstances.

[21]              In reaching this conclusion, I have taken into account Ms Cranstoun’s submission to me today about her client’s depression and her submission that the Judge should have given greater weight to the recommendations in the pre-sentence report for a rehabilitative sentence given the information before the Judge that Mr Haunga had gained employment, was attending counselling with a psychologist and had expressed the wish to attend programmes to support his goal of being sober. However, as the Judge said, there was no evidence that these matters were actually operative and given Mr Haunga’s almost total non-compliance with the sentence of community work, and his previous history of non-compliance with community-based sentences,

there would have had to have been real prospects of rehabilitation before a sentence of less than imprisonment was justified.

Decision

[22]              The starting point of eight weeks’ imprisonment (two-thirds of the available maximum) was, in my view, at the highest end of the range available to the Judge, and could probably be termed excessive. However, the discount of 25 percent for the very late plea of guilty went the other way. The discount was significantly greater than was justified. The end sentence is a sentence which is not manifestly excessive.

[23]              There was no obligation on the Judge to cancel the remaining portion of the sentence of community work. That sentence had been imposed over two years previously for an act of violence. The Judge was entitled to require it to be performed. The Judge’s alternative would have been to convert the sentence to one of imprisonment and to have sentenced Mr Haunga to a more lengthy overall term of imprisonment. The Judge’s refusal to cancel the sentence of community work does not make the sentence of imprisonment manifestly excessive.

[24]The appeal is dismissed.

Brewer J