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 other than modest contributions from the benefit payments he was receiving.  Judge Adeane treated that as preposterous, and adhering to the warning given on 22 June 2012 that prison was inevitable if reparation was not made, the Judge proceeded to sentence him on that basis.   The Judge adopted a starting point of two years’ imprisonment and then allowed discounts in relation to the early guilty plea and “... a further discount for

immaturity, stupidity and the fact that you are a first offender”.1     The combined

effect  of  the  discounts  produced  a  reduction  of  one  half,  resulting  in  the  final

sentence imposed of one year’s imprisonment.  For the purposes of considering the

1      Police v Henare DC Gisborne CRI-2012-016-571, 12 September 2012 at [6].

appeal, I treat the discounts given as 25 per cent each for early guilty plea, and the other combination of factors.

[8]      Mr McIlroy  argued  that  the  starting  point  of  two  years  was  manifestly excessive.   There could certainly be no quibble with the extent of the discounts given.

[9]      Burglaries of commercial premises tend to be treated as less serious than those of residential properties because they generally do not raise the prospect of confrontations with occupiers and the on-going sinister feelings of property having been violated that is involved in burglaries of homes.2

[10]     Comparisons where the offender is not a recidivist or spree burglar but rather a first time burglary offender are somewhat less reliable, given the extent to which sentences for first time burglars will be very fact-specific and depend on the nature of their criminal involvement and their own personal circumstances.  However, on this appeal, Mr McIlroy argued for relativity with the Court of Appeal decision in R v Columbus where a starting point of one year’s imprisonment was adopted for a relatively minor level opportunistic burglary of a garage attached to a residential

house.3

[11]     In R v Stevens, the Court of Appeal found that a starting point of no more than 18 months’ imprisonment was appropriate for a burglary of commercial premises.4      Further,  in  the unsuccessful  appeal  in  Snowden  v Police,  the Court confirmed  that  18  months  was  an  appropriate  starting  point  for  burglary  of  a dwelling house, and Mr McIlroy argued that given that it is treated as relatively more serious, the starting point here should have been less than that.

[12]     In defending the two year starting point as appropriate, Mr Lucas argued that the large amount of property taken (including the van that some co-offenders then

used in later burglaries), plus the number of offenders and the reprehensible nature of

2      For  example,  Arps  v  Police  HC  Christchurch  CRI-2010-409-167, 2  September  2010  and

Snowden v Police HC Hamilton CRI-2010-419-0052, 15 July 2010.

3      R v Columbus [2008] NZCA 192.

4      R v Stevens [2009] NZCA 190.

taking property from a charity, meant that a higher starting point than in Snowden

was warranted.

[13]     One  feature  of  the  offending  which  influenced  the  Judge  in  ranking  its relative  seriousness  was  how  “mean”  it  was  of  young  offenders  to  burgle  the premises of an important charity.   I agree with that concern and it means that the contrast  between  burglaries  of  commercial  premises,  relative to  the  additionally sinister connotations of burglaries of residential homes is not as great as it might otherwise have been.  It is morally reprehensible to a greater degree to take property when in doing so the offenders deprive a charity of the ability to help others in need.

[14]     However, Mr Henare’s involvement in this burglary was at a relatively low level of culpability.   He had nothing to do with the planning of it, and made the regrettable decision to go along with it to help others, shortly before it occurred. There is no suggestion that he was a party to the subsequent use or destruction of the Red Cross van and there was certainly no commerciality about his involvement.

[15]     In terms of his relative level of involvement in the offending, it would be reasonable to expect that he would be dealt with more leniently, and certainly no more harshly than Mr Waru who was one of the two who gained access to the rear of the Red Cross building, and was also sentenced for involvement in another of the burglaries.    What  appears  to  have  caused  the  sentencing  Judge  to  deal  with Mr Henare far more seriously was his conduct post the offending, and in particular his failure to provide reparation.  If one assumes that, say, two thirds of Mr Waru’s sentence reflected his involvement in the Red Cross burglary, then his somewhat greater involvement in that offending than Mr Henare’s produced a sentence of, say, four months’ community detention.

[16]     For  somewhat  lesser  involvement  in  the  Red  Cross  burglary,  Mr Henare received a sentence of one year’s imprisonment because he had not made a commitment to what the Judge considered was meaningful reparation.   That is a disparity which is very difficult to justify.  Section 8(4) of the Sentencing Act 2002 requires the Court to take into account the desirability of consistency of sentencing. I am mindful of the caution that an apparent inconsistency ought not to justify

alteration of sentence on appeal,5 but nonetheless this comparison of outcomes provides strong support for Mr McIlroy’s argument that the starting point must have been manifestly excessive.

[17]     In  any  event,  reparation  is  now  available.    To  their  credit,  members  of Mr Henare’s family have committed to paying the sum of $3,224 in reparation.   I was advised that the amount can be paid today and indicated that my decision on the appeal was conditional on that occurring.   The sentencing Judge indicated that he would  address  reparation  “in  due  course”.    I  order  that  the  amount  paid  for Mr Henare is to be allocated to the New Zealand Red Cross as reparation.

[18]     Reflecting on all the circumstances, I am satisfied that a starting point of

15 months’ imprisonment would have been the appropriate one.   Appeals against sentence  should  not  focus  on  the  correctness  of  individual  components  in  the make-up of a final sentence, when the final sentence is what really counts.  Here, it is possible that the Judge may have had his own reasons for setting a starting point on the high side, and then compensating for it, in part, by very generous discounts.  A

25 per cent  discount  for  an  early  guilty  plea  was  entirely  orthodox.    A further

25 per cent on account of immaturity, stupidity and being a first offender is difficult to justify.  The more so when the Judge was not informed that Mr Henare did in fact have prior convictions, which include dishonesty and being found in a building.

[19]     Having  decided  to  intervene,  a  second  adjustment,  this  time  against

Mr Henare’s interests, is warranted.  I would cap the second aspect of the discount at

15 per cent, making a total of 40 per cent.

[20]     In serving a short prison sentence, Mr Henare is entitled to be released after half the sentence imposed.6   Reducing the starting point from 24 to 15 months, and allowing a combined discount of 40 per cent would produce an end sentence of nine months – 39 weeks – so he would be required to serve 19 weeks.   Mr Henare is

entitled to credit for the period remanded in custody prior to sentencing between

5      R v Lawson [1982] 2 NZLR 219 at 223.

4 May and 22 June 2012, a period of seven weeks.7     Time served since he was sentenced on 12 September 2012 amounts to a further 12 weeks.  By the end of this week, that will be a sufficient penalty.

[21]     The second aspect of the appeal was the Judge’s  failure to  consider the appropriateness of home detention as an alternative sentence.  Given the outcome, it is unnecessary to consider that.

[22]     I indicated at the conclusion of the hearing that I would be allowing the appeal,  by  reducing  the  term  of  imprisonment  to  an  extent  that  would  have Mr Henare having served the extent of it necessary (taking into account credit for the period remanded prior to sentencing and the requirement that one half of a short sentence actually be served) by Friday of this week.  If my calculations are in error so that he is not entitled to release by Friday on the basis of a sentence of nine months’ imprisonment, then I invite the Corrections Department to come back to me to make any amendment necessary to effect that outcome.   I also directed that Mr Henare should not return to Hawke’s Bay Prison so that his release could be effected  from  Gisborne.    It  is  a  condition  of  this  decision  that  the  promised reparation be paid to the Court, prior to release.  It is to be dealt with as specified in [17] above.

[23]     In view of that outcome, it is also unnecessary to consider the appropriateness of substituting a community-based sentence, to achieve more precise parity with the co-offenders who were able to make reparation prior to sentencing.

Dobson J

Solicitors:

Woodward Chrisp, Gisborne for appellant

Crown Solicitor, Gisborne for respondent