Henare v The Queen
[2014] NZCA 12
•18 February 2014 at 12.05 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA 619/2013 [2014] NZCA 12 |
| BETWEEN | BOWDY HENARE |
| AND | THE QUEEN |
| Hearing: | 11 February 2014 |
Court: | Harrison, Asher and Dobson JJ |
Counsel: | JRF Anderson for Appellant |
Judgment: | 18 February 2014 at 12.05 pm |
JUDGMENT OF THE COURT
The appeal against sentence is dismissed.
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REASONS OF THE COURT
(Given by Harrison J)
Bowdy Henare pleaded guilty in the District Court at Manukau to one charge of unlawfully taking a motor vehicle and one of burglary. He was convicted and sentenced by Judge Winter to a term of 22 months imprisonment.[1] He appeals against that sentence on the grounds that it is wrong in principle; and that a term of home detention should have been imposed.
[1]In R v Henare DC Papakura CRI-2012-092-006358, 30 August 2013.
In summary, early one morning in February 2012 Mr Henare stole a Subaru motor vehicle from a Mangere address. Just after noon the next day Mr Henare and three others drove in the stolen vehicle to a residential property in Avondale. Two of the men entered and ransacked the dwelling, taking valuable property including jewellery and computer equipment. Mr Henare and another waited in the car, acting as lookouts. The stolen property has not been recovered.
Mr Anderson accepts that if imprisonment was the appropriate sentence, the term of twenty-two months imposed by the Judge was not excessive. Nevertheless, he submits that the Judge erred in declining to impose a sentence of home detention instead. He says that the Judge was wrong in law in reaching that conclusion in reliance on the express grounds that: (a) Mr Henare posed a high risk of re-offending; and (b) prison was a less restrictive sentence than home detention. We agree with Mr Anderson that the second ground is unsustainable. However, as Ms Walker submits, it was not determinative and appears rather to express an idiosyncratic view of the relative merits of the two sentences.
In any event we are satisfied that the first ground relied upon by the Judge is sustainable especially when considered in conjunction with his earlier reference to (a) Mr Henare’s commission of this offending while he was serving sentences for community work imposed on an earlier conviction for burglary; and (b) his breaches of community based sentences. This conduct is evidence that any sentence other than imprisonment would be insufficient to hold Mr Henare accountable for the harm his offending has caused, to promote in him a sense of responsibility for that harm, to denounce his conduct, to deter him and to protect the community.
Mr Henare’s conduct is also evidence that he would not reciprocate the degree of trust in an offender’s compliance which is a prerequisite of a sentence of home detention. As the Judge noted, Mr Henare was at the age of 19 years familiar with the criminal justice system. His offending was serious. In all the circumstances, a sentence of home detention was not an available option.
Mr Anderson did not challenge the fact that the Judge did not allow a credit for the time spent by Mr Henare on bail prior to sentencing, some seven months. Ms Walker properly drew our attention to this factor. At the time of sentencing the Judge had discretion as to whether to allow Mr Henare a discount for time spent on bail while on remand. However, we agree with Ms Walker that Mr Henare’s history of a low level of non-compliance with the terms of bail count decisively against any allowance for time spent on it.
Mr Henare’s appeal is dismissed.
Solicitors:
Crown Solicitor, Auckland for Respondent
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