Henare v The Queen
[2020] NZCA 188
•28 May 2020 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA492/2019 [2020] NZCA 188 |
| BETWEEN | STEPHEN JAMES HENARE |
| AND | THE QUEEN |
| Hearing: | 11 May 2020 |
Court: | Collins, Duffy and Edwards JJ |
Counsel: | J N Bioletti for Appellant |
Judgment: | 28 May 2020 at 10.30 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
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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 removed as trustees by the Māori Land Court, just $13.41 remained in the P3G Trust’s bank accounts.[2]
[2]Slade – Parengarenga 3G (2014) 84 Taitokerau MB 134 (84 TTK 134).
Mr Henare was the principal recipient of the money that was stolen. He personally received $853,000, which was used to finance his gambling addictions and lavish lifestyle. Ms Dixon, who appears to have received $130,836 pleaded guilty to her role in the offending and was sentenced to 12 months’ home detention and ordered to pay $5,000 by way of reparation.
The charge of attempting to pervert the course of justice arose from evidence Mr Henare gave to the Māori Land Court on 22 January 2013, when he and Ms Dixon resisted an application by another of the P3G trustees to have them removed from the Trust. Mr Henare was questioned by the Court about the status of the P3G accounts. He assured the Court that there was “just under a million” in the account. That was a lie. At the time of the hearing approximately $400,000 remained in the account. The Court appears to have accepted Mr Henare’s assurances and declined to remove him as a trustee at that time.
Sentencing decision
Muir J had before him a number of victim impact statements that recounted the devastating impact of Mr Henare’s offending upon the beneficiaries of the P3G Trust. The harm inflicted by Mr Henares’s offending was not confined to the financial and economic devastation wrought by his conduct. Those who provided victim impact statements spoke in heartfelt terms about the humiliation, shame and loss of mana Mr Henare’s offending has caused to beneficiaries of the Trust and their whānau.
The High Court Judge also had the benefit of a comprehensive cultural report prepared pursuant to s 27 of the Sentencing Act 2002. That report recorded the abuses Mr Henare had witnessed and suffered when growing up. It also explained that Mr Henare and his wife separated in 2013 and Mr Henare commenced a relationship with another woman. Although Mr Henare and his wife were separated, he still assumed responsibility for her care. She has a number of debilitating medical conditions, including Alzheimer’s disease. Mr Henare explained to the s 27 report writer that he started gambling in 2011 and that this infliction evolved into profound addiction by 2013.
The pre-sentence report presented to the Judge stated Mr Henare had limited insight into his offending and that he did not appear to accept the severity of the consequences of his actions.
Muir J adopted a starting point of 5 years and 6 months’ imprisonment for the lead offence of theft by a person in a special relationship. The Judge added a further 12 months to that starting point, to reflect the attempt to pervert the course of justice charge and then made a 6-month deduction to take account of the totality principle. From the overall starting point of 6 years’ imprisonment, Muir J deducted 10 months for factors personal to Mr Henare and his guilty pleas. This resulted in an end sentence of 5 years and 2 months’ imprisonment comprising 4 years and 4 months’ imprisonment for the theft by a person in a special relationship charges and 10 months’ imprisonment for the attempting to pervert the course of justice charge.
No issue was taken with the starting points adopted by Muir J or his decision to treat the sentence for attempting to pervert the course of justice as cumulative to the sentence for the other charges. As foreshadowed in [2], the appeal against sentence focuses upon the deductions made for factors that Mr Henare argues should have resulted in a lower end sentence. We shall now examine each of those factors.
Was Mr Henare’s offending motivated by a sense of self-entitlement?
When considering the aggravating factors associated with Mr Henare’s offending, Muir J said:[3]
Mr Henare had clear responsibilities as a trustee which he breached in a gross and flagrant way. The origins of the offending clearly lay in a sense of personal entitlement evidenced by his statement to the SFO, when interviewed, that his role as a trustee was to “go in and get everything I am entitled to”. In turn that sense of entitlement probably had its origins in a perceived injustice to his forbears in respect of the land. Whatever the reason, he abused his responsibilities as trustee to fund his own lavish lifestyle, while those he was called to serve suffered and continue to do so.
[3]R v Henare, above n 1, at [31(c)].
The High Court Judge made other references in his sentencing decision to Mr Henare’s sense of self-entitlement.[4] Muir J rejected an argument that Mr Henare was entitled to any reduction to his sentence because of the extensive work he had done on behalf of the P3G Trust because of Mr Henare’s fundamental failure to fulfil his objective to the Trust when he masterminded the defalcations in order to support his gambling habit and lavish lifestyle.
[4]At [44]–[45].
In this Court it was argued on behalf of Mr Henare that what the Judge referred to as an overwhelming sense of entitlement was interwoven with Mr Henare’s belief that the land had been wrongfully taken from a small group of original Māori owners, including his grandmother.
We accept Mr Henare did devote considerable time and energy towards having the land returned to its rightful owners. His criminal offending, however, occurred soon after the Māori Land Court appointed Mr Henare, Ms Dixon and others as trustees in place of the Māori Trustee. As soon as he could do so Mr Henare, and to a lesser extent Ms Dixon, divested the Trust of its money. Mr Henare used the Trust money to fund his gambling and expensive luxuries, such as a corporate box at rugby league games.
Within approximately 12 months of becoming a trustee, Mr Henare and his sister had stolen almost all of the Trust’s money. In part he did so because he believed he was entitled to treat the Trust money as his own. Thus, Muir J was correct when he criticised Mr Henare for his sense of self-entitlement. This feature of the case was particularly disturbing and was properly assessed by the High Court Judge as an aggravating factor. We can see nothing wrong with the approach taken by the High Court Judge.
Mrs Henare’s illness
Muir J was very mindful of the impact of a prison sentence upon Mr Henare’s estranged wife. The Judge was aware of her significant health issues and was sympathetic to her plight.[5] We also appreciate the impact of Mr Henare’s sentence upon his former wife.
[5]At [19].
Unfortunately, criminal offending often has a severe impact on the family of the offender, particularly when sentences of imprisonment are required in order to reflect the principles and purposes of sentencing. While all readily sympathise with Mrs Henare’s circumstances, we can see no basis for interfering with the approach taken by the High Court Judge in relation to this aspect of the sentence. The impact on Mrs Henare of the sentence her husband must serve is one of many tragic consequences that flow from Mr Henare’s decision to commit large-scale thefts.
Mr Henare’s age
Mr Henare was 62 years old when he was sentenced. Mr Henare’s age was not treated as a mitigating factor in the High Court. The Judge was, however, fully aware of Mr Henare’s age and in the circumstances of this case he was not required to treat Mr Henare’s age as a special mitigating factor.
Whakamā
In this case, counsel for Mr Henare explained that Mr Henare is in a state of whakamā. Mr Henare’s daughter referred to this concern when she told the writer of the s 27 report that:
This is the thing that is hurting me. If my father passed I wouldn’t know where to take him. I wouldn’t know who to call. He has been outcast and it has been put publicly. It is not just about him, it is about us. How do we even go there? Our mana has been stripped, our tikanga value is gone … We as a whānau, we are broken.
We understand the point raised by Mr Henare’s daughter reflects the cultural concept of whakamā. Some have equated whakamā with shame.[6] We acknowledge that while whakamā may involve elements of shame it may engage broader concepts that reflect upon the mana, not just of Mr Henare, but his whānau.
[6]Solicitor-General v Heta [2018] NZHC 2453, [2019] NZLR 241 at [18].
Unfortunately, neither the author of the s 27 report nor anyone else recognised this point when Mr Henare was being sentenced. Similarly, we have not had the benefit of any guidance on what whakamā actually entails in the context of this case and what, if any recognition can be properly given to this factor in Mr Henare’s circumstances. All we can say is that in an appropriate future case, the courts may be able to explore the possibility of treating whakamā as a unique mitigating factor when sentencing a Māori defendant.
Result
We uphold all features of the sentencing decision of Muir J.
The appeal is dismissed.
Solicitors:
Serious Fraud Office, Auckland for Respondent
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