Henare v The Queen
[2019] NZHC 1153
•24 May 2019
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
AppellantAND
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 an element of planning, due to the entry through the window, but considered it was not great.
[11] The Judge referred to Kaponga v Police and Hape-Kino v R to assist to establish a starting point.4 He also took guidance from the Court of Appeal case establishing sentencing bands for aggravated robbery, R v Mako, but with appropriate adjustment as the offence here was aggravated burglary.5 The Judge noted that defence counsel referred to the decisions of Melgren v R and R v Shirley.6
[12] The Judge adopted a starting point of three years and three months’ imprisonment.
[13] The Judge gave a discount of three months’ imprisonment for Mr Henare’s remorse, youth (he was aged 22 years) and his willingness to engage in restorative justice. A further nine months’ discount was given for an early guilty plea. This left a total of two years and three months’ imprisonment.
[14] The Judge noted that even if the sentence had allowed the option, he would not have considered home detention on the facts.
Standard of appeal
[15] Mr Henare has brought his appeal under s 250 of the Criminal Procedure Act 2011. An appeal against sentence is an appeal against a discretion. Therefore it can only be allowed if the Court is satisfied that there has been (for any reason): first, an intrinsic error in the sentence imposed and, secondly, a different sentence should be
4 Kaponga v Police HC Invercargill CRI-2007-425-19, 2 July 2007; Hape-Kino v R [2017] NZHC 2599.
5 R v Mako [2000] 2 NZLR 170 (CA); R v Watson CA224/03, 24 October 2003.
6 Melgren v R [2016] NZHC 2482; R v Shirley [2009] NZCA 216.
imposed.7 The focus is on the final sentence and whether it was in the available range, rather than on the exact process by which it was reached.8 As articulated in R v Peters:9
[13] As this Court has indicated on many occasions, the issue whether a sentence is manifestly excessive or manifestly inadequate or inappropriate must be examined in terms of the sentence actually passed rather than the precise process by which it is reached. Thus, if a sentence might be the product of a starting point which is itself manifestly excessive but is in the result ameliorated by allowances made for mitigating factors so as ultimately to be brought to a point of acceptability, this Court will be disinclined to intervene through concern over any particular component. This is very much such a case here.
Submissions and analysis
Starting point
[16] Ms Wright, for Mr Henare, argued that the Judge failed to take proper cognisance of the fact that aggravated robbery and aggravated burglary are different offences. She also takes issue with the Judge’s characterisation of the submission that this was a “technical aggravated burglary”. She says this characterisation had been made to emphasise that this was a case at the lower end of the scale.
[17] There is no tariff case for aggravated burglary. However, it has been consistently accepted that the principles contained in the tariff case for aggravated robbery, R v Mako,10 can apply equally to aggravated burglary.11
[18]Ms Wright submits:
(a)Mako provided an appropriate analysis subject to the appropriate adjustment down for to account for aggravated burglary.12
7 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482.
8 Ripia v R [2011] NZCA 101 at [15].
9 R v Peters CA12/03, 14 May 2003 at [13].
10 R v Mako, above n 5
11 R v Watson, above n 5, at [27]; R v Drewett [2007] NZCA 48 at [15]; Archbold v R [2015] NZCA 493 at [9].
12 R v Mako, above n 5.
(b)The Judge put to one side, without reasons or proper consideration, cases put forward on behalf of the defendant including Melgren and Shirley which were cases involving aggravated burglary.13
(c)In this case the factors, put in context, were less serious than those in Shirley and Melgren and comparing them to a number of other cases were not as serious.14
[19] Ms Wright submitted that in this case it was burglary with a knife that was not used. Mr Henare was only on the premises for three minutes. While she accepted the value of the property was high. But it was unfortunate as the value was first in the fine wines taken and Mr Henare would not have appreciated they were worth a lot of money, and secondly in unusable gift vouchers. In her submission the offending was unsophisticated. Ms Wright said Mr Henare had a chance meeting at a pokie bar with some associates and hours later broke into an unoccupied restaurant which had no accommodation attached at a time of night when they were unlikely to come across anyone on the premises. She said the Judge mischaracterised the fact Mr Henare was on the premises and then out the window in a time of three minutes as some level of planning. She argued it was in fact spontaneous. She also submitted the damage was limited – the till and wiring was damaged but nothing approaching that in Hape-
Kino.15
[20] Ms Wright says Melgren was a significantly worse case in which the lead charge of aggravated robbery resulted in a starting point of three and a half years’ imprisonment being taken.16 That was a case where it was a residence that was burgled and the defendant and associate wore masks and had a knife. Other charges in the case included a charge of wilful damage and of being armed with intent to commit burglary. The Judge uplifted the starting point by three months for those other charges, leading to an adjusted term of three years and nine months before the application of other factors.
13 Melgren v R, above n 6; R v Shirley, above n 6
14 Kaponga v Police, above n 4; Hape-Kino v R, above n 4.
15 Hape-Kino v R, above n 4.
16 Melgren v R, above n 6.
[21] However, it is difficult to compare factors. While Melgren involved a residence, not a commercial premise, in both cases the offending was carried out by a number of co-defendants. In addition, there was a substantial amount of property taken and the victim impact report indicates the victims were significantly affected by the offending.
[22]It is now useful to consider the offending here in terms of the categories in
Mako. The Court of Appeal in Mako said:
[54] Different combinations of the features of the offending in the present case can be taken by way of example to indicate appropriate starting point levels. The robbery of commercial premises where members of the public can be expected to be present, targeting substantial sums in tills or a safe by a group, with a lethal weapon, disguises and other indications of preparation, should attract for adult perpetrators after a defended trial a starting point of 6, or perhaps more, years. Where firearms are loaded or the danger of harm is increased in other ways, or if actual violence is used, the starting point would be 8 years or more. To take the facts of the present case, that it had the hallmarks of a gang operation and the treatment of the tavern patrons would have justified a starting point of 8 years and, in the case of the respondent, the further feature of presenting the firearm to the police at the end of a dangerous car chase would require a starting point of at least 9 years for the overall offending.
…
[56] A further example can be given taking another combination of features typical of many aggravated robberies. This envisages a robbery of a small retail shop by demanding money from the till under threat of the use of a weapon such as a knife after ensuring no customers are present, with or without assistance from a lookout or an accomplice waiting to facilitate getaway. The shopkeeper is confronted by one person with face covered. There is no actual violence. A small sum of money is taken. The starting point should be around four years. Should the shopkeeper be confined or assaulted, or confronted by multiple offenders, or if more money and other property is taken five years, and in bad cases six years, should be the starting point.
…
[59] At the other end of the scale would be street robbery by demanding that the victim hand over money or property such as an item of clothing, where a knife or similar weapon is produced or where offenders acting together by bullying or menacing conduct enforce the demand though no actual violence occurs. Depending upon the circumstances the starting point would be between 18 months and 3 years. Actual physical enforcement might well require a higher starting point.
[23] The present offending contained a mixture of factors from the three scenarios outlined above. It is less serious than the first two but more serious than the third.
This placement supports the starting point of three years and three months’ imprisonment adopted by the Judge.
[24] The Judge correctly assessed the fact situation: there were two offenders (both armed); planning and pre-determination occurred although it was to an unsophisticated degree; the amount of property taken was substantial and the harm and impact to the victims was significant.
[25] There was no further charge which attracted an uplift, such as the further charges in in Melgren.17
[26] I am of the view that the starting point adopted by the Judge was within the appropriate range.
Discount for EM bail
[27] Ms Wright noted that the Judge should have given Mr Henare a discount for the five weeks spent on EM bail. She accepted that at best it would allow a couple of weeks discount on the sentence.
[28] Section 9(2)(h) of the Sentencing Act 2002 (the Act) notes the Court must take into account time spent on EM bail as a mitigating factor. This is further specified under s 9(3A) which notes that the Court must consider:
(a)The period of time spent on EM bail;
(b)The relative restrictiveness of the EM condition, including the frequency and duration of the offenders authorised absences from the relevant address;
(c)The offender’s compliance with their bail conditions during this period; and
(d)Any other relevant matter.
17 Melgren v R, above n 6.
[29] The reduction given to recognise time spent on EM bail is not a matter of arithmetical equivalence,18 but the issue is advanced on the basis that the Judge did not turn his mind to the factors set out in s 9(3A) of the Act.
[30] The usual allowance for EM bail is for a reduction equating to half the time spent on EM bail where restrictive conditions are imposed.19 Mr Henare spent just over one month on EM bail. A two-week reduction would likely be the maximum available.
[31]In a footnote in his decision the Judge noted:20
At the end of the judgment, I immediately informed both counsel I gave no discount for EM Bail because of the period on that bail was very short.
[32] This illustrates that he was cognisant of the need to consider EM bail. Ms Wright accepted the Judge had noted the EM bail issue as an addendum.
[33] In my view the Judge did take into account EM bail and this is recorded. In any event the short time involved of itself would not merit interference on appeal. The approach was open to the Judge. The Judge made no error.
Conclusion
[34] I consider the Judge adopted a starting point within the appropriate range, and the discounts he allowed were appropriate, in fact generous, in the circumstances. The sentence was not manifestly excessive. He also considered the time spent on EM bail.
[35]The appeal is dismissed.
Grice J
18 Parata v R [2017] NZCA 48 at [10] and [12]; Chea v R [2016] NZCA 207 a [110]; Keown v R [2010] NZCA 492 at [12]; Baillie v R [2010] NZCA 507 at [18]; and R v Tamou [2008] NZCA at [19].
19 R v Rose [2017] NZHC 1488 at [46]; Prattley v Police [2014] NZHC 486 at [31]; R v Mihaka
[2014] NZHC 2921 at [43]; R (CA528/16) v R [2017] NZCA 210 at [14]
20 R v Henare, above n 2, at [23], n 4.
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