Henare v Police - [2012] NZHC 3277

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CRI-2012-016-571 [2012] NZHC 3277

BETWEEN ROBERT WAYNE HENARE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 5 December 2012

Counsel: A Mcllroy and A Simperingham for appellant
J Lucas for respondent

Judgment: 5 December 2012

RESERVED JUDGMENT OF DOBSON J

[1] The appellant (Mr Henare) was sentenced in the District Court at Gisborne on

12 September 2012 to 12 months’ imprisonment for his role in a burglary of the premises of the Red Cross organisation in Gisborne. Mr Henare has appealed against that sentence on the basis that it was manifestly excessive and that the sentencing Judge was wrong not to consider the alternative of home detention.

[2] The summary of facts on which he was sentenced suggests that Mr Henare was the least involved of five co-offenders, with the rest participating in various ways in a series of burglaries, of which the burglary of the Red Cross premises was one.

[3] Two of the other offenders, including one identified as the planner of numerous burglaries, gained entry to the Red Cross premises via a rear window. They then let Mr Henare and a fourth participant in the Red Cross burglary into the front door. All four of the co-offenders participated in taking items from the
premises to the value of approximately $4,000. They left the premises in a van

HENARE v POLICE HC GIS CRI-2012-016-571 [5 December 2012]

belonging to Red Cross, the keys of which they located in the building. The van was valued at some $6,000. Others of the co-offenders subsequently set fire to the van.

[4] Mr Henare made a relatively early guilty plea to the charge of burglary of the Red Cross premises. His explanation was that he had decided at short notice to participate with the others and that they did so to help Mr Ioane who had planned it. After being remanded in custody between 4 May and 22 June 2012, Mr Henare was released on bail, along with some of the co-offenders, with a direction from the Judge that they should get a job so as to be in a position to offer reparation before sentencing. They were warned that if meaningful reparation was not forthcoming, then they would be sentenced to terms of imprisonment.

[5] The notes of sentencing of two of the co-offenders (including Mr Ioane) by Judge A J Adeane on 22 June 2012 indicate that he treated Mr Henare as the least involved of all the co-offenders.

[6] The two others offered the opportunity to arrange reparation did so, and the co-offender who gained entry with Mr Ioane to the Red Cross premises was sentenced to six months’ community detention in relation to that and his involvement in some of the other burglaries.

[7] However, despite a further adjournment of his sentencing at the end of July, when Mr Henare was finally sentenced on 12 September 2012, he had not obtained employment and was not able to offer payment of reparation…

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.

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Details

Case: [2012] NZHC 3277
Decision Date: 5 December 2012

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Henare v Police dealt with an appeal by the appellant, Robert Wayne Henare, against his sentence for burglary. The appellant was sentenced to 12 months' imprisonment for his role in a burglary at the Red Cross premises in Gisborne. The central issues in the case were whether the sentence was manifestly excessive and whether the sentencing judge erred in not considering the option of home detention. The appellant argued that the starting point of two years for imprisonment was excessively high and that there was no justification for the disparity in sentences between him and his co-offenders, who received lesser sentences. The court found that a starting point of 15 months would have been more appropriate, taking into account the appellant's relatively minor involvement in the crime and his early guilty plea.

The court's reasoning highlighted the need for consistency in sentencing and noted the inappropriateness of the high starting point and the subsequent discounts applied. The court also considered the moral reprehensibility of the crime due to the targeting of a charity, but balanced this with the appellant's lesser culpability. The court reduced the starting point to 15 months and applied a combined discount of 40%, resulting in an effective sentence of nine months. This calculation took into account the time already served and the requirement for the appellant to serve half of his sentence. The court further directed that the appellant should not return to prison and should be released by a specific date, contingent on the payment of reparation to the New Zealand Red Cross. The court's final orders ensured that the appellant would be released by the specified date, provided the reparation was paid, and directed that he should not return to prison.

Orders