Henare v The Queen - [2020] NZCA 188

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA492/2019
[2020] NZCA 188

BETWEEN	STEPHEN JAMES HENARE Appellant
AND	THE QUEEN Respondent

Hearing:	11 May 2020
Court:	Collins, Duffy and Edwards JJ
Counsel:	J N Bioletti for Appellant M R Heron QC for Respondent
Judgment:	28 May 2020 at 10.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

On 28 August 2019, Muir J sentenced Mr Henare to 5 years and 2 months’ imprisonment in relation to five charges of theft by a person in a special relationship and one charge of attempting to pervert the course of justice.[1] Mr Henare pleaded guilty to those charges on the fourth day of his trial.
[1]R v Henare [2019] NZHC 2126.
Mr Henare appeals his sentence. He contends Muir J failed to give sufficient credit to factors that Mr Henare says should have resulted in a lower sentence. It is also submitted on behalf of Mr Henare that the High Court Judge misunderstood aspects of the evidence relating to Mr Henare’s offending.
The arguments advanced in support of the appeal are:
(a)Muir J mischaracterised Mr Henare’s offending as being driven in part by a sense of self-entitlement.
(b)Insufficient credit was given to the consequences of a prison sentence upon Mr Henare’s former wife, who is seriously ill.
(c)The sentencing Judge did not sufficiently consider Mr Henare’s age.
(d)The sentencing Judge should have recognised the impact of Mr Henare’s state of whakamā when sentencing him.

Background

On 1 September 1987, the Māori Trustee took control of a 511.83 ha block of Māori land located in the Taitokerau District. The land was held in a trust referred to as the “Parengarenga 3G Trust” (P3G Trust). Mr Henare made it his mission to have the control of the land returned to his people. This was achieved to some degree when, on 8 June 2012, the Māori Land Court appointed Mr Henare, his sister, Margaret Dixon, and five other people as the trustees of the P3G Trust in place of the Māori Trustee. There are approximately 400 beneficial owners of the land owned by the P3G Trust.
The land had been leased to forestry companies and progressively surrendered back to the P3G Trust prior to the Māori Land Court decision in June 2012.
Mr Henare and Ms Dixon opened a bank account in the name of the P3G Trust and arranged for themselves to be the signatories.
The P3G Trust received the following payments:
(a)$1,037,696.47 from the Māori Trustee on 7 August 2012;
(b)$59,122.87 from the Māori Trustee on 14 August 2012; and
(c)$54,480.00 from a carbon markets broker on 17 August 2013.
Between 8 August 2012 and 13 January 2014, almost all of the money received by the Trust was transferred to accounts controlled by Mr Henare, Ms Dixon and other members of their immediate whānau. By 4 August 2014, when Mr Henare and Ms Dixon were…

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.

Continue reading Henare v The Queen

Details

AGLC: Henare v The Queen [2020] NZCA 188
Case: [2020] NZCA 188
Decision Date: 28 May 2020 at 10.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Mr. Stephen James Henare appealed his sentence following a conviction for theft by a person in a special relationship and attempting to pervert the course of justice. The appeal was dismissed by Collins, Duffy and Edwards JJ. The appellant argued that the sentencing judge mischaracterised his offending and failed to give sufficient credit to certain factors, including the consequences of a prison sentence on his former wife, who is seriously ill. The court found that the sentencing judge correctly identified the aggravating factors and appropriately assessed the impact of the appellant's offending on his former wife, who is seriously ill, and did not err in not treating the appellant's age as a mitigating factor. The court also noted that the cultural concept of whakamā may be recognised as a mitigating factor in future cases.

The legal issues in this case were whether the sentencing judge mischaracterised the appellant's offending and failed to give sufficient credit to certain factors, including the consequences of a prison sentence on the appellant's former wife, who is seriously ill. The Court of Appeal found that the sentencing judge correctly identified the aggravating factors and appropriately assessed the impact of the appellant's offending on his former wife. The court also found that the appellant's age was not a mitigating factor in this case and that the cultural concept of whakamā may be recognised as a mitigating factor in future cases. The appeal was dismissed, and the original sentence was upheld.

Orders