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Henare v The Queen

Henare v The Queen

Case [2019] NZHC 1153 24 May 2019

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IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI-2019-416-5

[2019] NZHC 1153

BETWEEN KAREMOANA EMILIO HAAMI HORI TUNNY HENARE
Appellant

AND

THE QUEEN

Respondent

Hearing: 7 May 2019

Appearances:

N Wright for Appellant

F E Cleary for Respondent

Judgment:

24 May 2019

JUDGMENT OF GRICE J

Background

[1] Mr Henare was sentenced to 27 months’ (two years and three months’) imprisonment on one charge of aggravated burglary1 in the Gisborne District Court on 15 March 2019.2 He also received a first strike warning.

[2] Mr Henare appeals his sentence on the grounds it was manifestly excessive because the Judge erred by:

(a)Adopting a starting point that was too high; and

(b)Failing to provide a discount to the starting point for time spent on electronically monitored (EM) bail.

1 Crimes Act 1961, ss 232(1)(a) and 66(2); maximum penalty of 14 years’ imprisonment.
2 R v Henare [2019] NZDC 4842.

HENARE v R [2019] NZHC 1153 [24 May 2019]

Background

The offending

[3] On 19 September 2018 Mr Henare and an associate discussed burgling a restaurant in Gisborne. In the early hours of the next morning they went into the alleyway at the rear of the closed restaurant, smashed a window and entered the restaurant though that window. Each of the co-offenders carried butchers’ knives. They went to the bar area where they took bottles of wine and spirts. Mr Henare attempted to remove the cash register, but had difficulty doing so. His co-offender used his knife to cut the cord. They were in the building for only three minutes before they left through the broken window.

[4] They took several bottles of spirts and expensive imported wine together with the register which had around $500 in cash in it, and restaurant gift vouchers. The same restaurant was burgled again by two other people later that evening.

[5]The District Court noted that the alcohol was worth $5,200.

The sentencing

[6] On 15 March 2019 the Judge sentenced Mr Henare. He began by giving Mr Henare his first strike warning.

[7] The Judge indicated that the facts were not disputed and noted this was a serious offence. He took issue with the description of the offending employed by defence counsel as a “technical” aggravated burglary.3 The Judge said that although the knife was not used it was still carried. He said a flat denial of the substantive offence was wrong, and Mr Henare was guilty of the charge.

[8] The Judge noted that the opportunity for confrontation was limited, but nevertheless it was still an aggravated burglary.

3 At [6].

[9] Turning to the victim impact statement, the Judge noted that the owners of the restaurant were new to Gisborne and the financial loss was significant for them.

[10] Turning to aggravating factors, the Judge noted the presence of two knives was part of the offence therefore he did not give an uplift to the sentence for that matter. He did note there was…

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 [2019] NZHC 1153
Case: [2019] NZHC 1153
Decision Date: 24 May 2019

CaseChat Overview and Summary

Karemoana Emilio Haami Hori Tunny Henare (the appellant) appealed against the sentence imposed on him by the District Court for aggravated burglary. The Crown (the respondent) opposed the appeal. The High Court was required to determine whether the District Court had erred in sentencing the appellant to 27 months' imprisonment for the aggravated burglary of a restaurant in Gisborne. The appellant argued that the District Court had erred by adopting a starting point that was too high and by failing to provide a discount for time spent on electronically monitored (EM) bail. The Crown submitted that the District Court had correctly adopted a starting point within the appropriate range, and that the sentence imposed was not manifestly excessive. The Court found that the District Court had adopted a starting point within the appropriate range and that the discounts allowed were appropriate, in fact generous, in the circumstances. The Court also found that the Judge had considered the time spent on EM bail and that the short time involved did not merit interference on appeal. The appeal was dismissed.

This case highlights the importance of the Court considering all relevant factors when determining a starting point for sentencing and the appropriate discount for time spent on EM bail. The Court must consider the period of time spent on EM bail, the relative restrictiveness of the EM condition, the offender’s compliance with their bail conditions during this period, and any other relevant matter. The Court must also consider the principles contained in the tariff case for aggravated robbery, R v Mako, which can apply equally to aggravated burglary. The Court must ensure that the sentence imposed is within the appropriate range and that the offender is not disadvantaged by any error in the sentencing process.

Orders