Henare v The Queen - [2018] NZHC 900

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

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

CRI-2018-416-3

[2018] NZHC 900

KAREMOANA EMILIO HAAMI HORI TUNNY HENARE

v

THE QUEEN

Hearing: 1 May 2018

Counsel:

N Wright for Appellant C Gullidge for Crown

Oral Judgment:

1 May 2018

ORAL JUDGMENT OF CHURCHMAN J

Introduction

[1] Mr Henare pleaded guilty to seven separate charges which arose out of five separate incidents. The charges included:

(a)unlawfully taking a motor vehicle;1

(b)theft (under $500);2

(c)attempting to pervert the course of justice;3

1      Crimes Act 1961, s226(1). Maximum sentence of seven years’ imprisonment. Offence occurred on 10 June 2017.
2      Crimes Act 1961, s 219 and 223(d). Maximum sentence of three months’ imprisonment. Offence occurred on 10 June 2017.
3      Crimes Act 1961, s 117(e). Maximum sentence of seven years’ imprisonment. Offence occurred

HENARE v R [2018] NZHC 900 [1 May 2018]

(d)failure to answer district court bail;4

(e)giving false details;5

(f)resisting arrest;6 and

(g)a second charge of giving false details (on a subsequent date).7

[2] Mr Henare originally messaged his ex-partner asking her to drop the first charge of unlawfully taking a motor vehicle, and that resulted in the charge of attempting to pervert the course of justice. He subsequently pleaded guilty to that charge. Although Ms Wright, for the appellant, has made the point that a lesser charge such as intimidation may have been laid, the Court is obliged to deal with the charges as they were laid and pleaded to.

[3] On 16 January 2018 in the Gisborne District Court, Judge Cathcart sentenced Mr Henare to 14 months’ imprisonment with leave to apply for home detention.8

[4] On 26 March 2018, Mr Henare’s sentence was cancelled and substituted with a five months and two weeks’ sentence of home detention.9 This took into account the proportion of the sentence of imprisonment Mr Henare had already served. This has rendered the final sentence appealed against effectively a sentence of seven months’ home detention (what Mr Henare would have been sentenced with if he had originally received a sentence of home detention). There appears to be no challenge to the availability and suitability of home detention as sentence.

on 29 June 2017.
4      Bail Act 2000, s 38. Maximum sentence of one year imprisonment or a fine of $2,000. Offence occurred on 19 July 2017.
5      Land Transport Act 1998, s 44. Maximum sentence of $10,000 fine. Offence occurred on 29 July 2017.
6      Summary Offences Act 1981, s 23(a). Maximum sentence of three months’ imprisonment or a fine of $2,000. Offence occurred on 25 August 2017.
7      Land Transport Act 1998, s 44. Maximum sentence of $10,000 fine. Offence occurred on 25 August 2017.
8      R v Henare [2018] NZDC 636.
9      R v Henare [2018] NZDC 6294 [Henare home detention].

[5] Ms Wright, on behalf of Mr Henare, appeals the sentence on the basis that the sentence of imprisonment was manifestly excessive because the starting point adopted for the lead…

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 [2018] NZHC 900
Case: [2018] NZHC 900
Decision Date: 1 May 2018

CaseChat Overview and Summary

The appellant, Mr Henare, appealed his sentence on the basis that the sentence of imprisonment was manifestly excessive. The starting point adopted for the lead charge of attempting to pervert the course of justice was too high. The Crown opposed the appeal and argued that the starting point adopted by the sentencing judge was well within the range available. The appeal was under section 250 of the Criminal Procedure Act 2011. It was an appeal against sentence and an appeal against a discretion. An appeal against sentence must be allowed if the Court was satisfied for any reason, there was an intrinsic error in the sentence imposed and a different sentence should be imposed. The focus was on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.

The Court found that the authorities relied upon by the appellant appeared to be more closely analogous than the authorities relied upon by the Crown. It agreed with the sentencing judge that the index offence was not of the most serious kind due to the lack of expressed threats, lack of violence, and the fact that only two brief messages (relatively close together) were sent. It came to the conclusion that the judge, in his final starting point, did not appropriately recognise that this was an example, at the lower end, in terms of seriousness of an offence of this nature. It was the view of the Court that the appropriate starting point in this case in relation to the index charge should have been 13 months rather than 16 months. If one applied the same uplifts and discounts used by the sentencing judge, an effective sentence of six months’ home detention was appropriate.

Accordingly, the appeal was allowed. The time that Mr Henare would spend undertaking the sentence of home detention was reduced by one month.

Orders