Heremaia v The Queen - [2017] NZHC 2707

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-298 [2017] NZHC 2707

BETWEEN
DALLAS HEREMAIA

Appellant

AND

THE QUEEN Respondent

Hearing: 31 October 2017

Counsel:

D G A Reece for Appellant
H G Max for Respondent

Judgment:

6 November 2017

JUDGMENT OF BREWER J

This judgment was delivered by me on 6 November 2017 at 4:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
David Reece (Auckland) for Appellant
Crown Law (Wellington) for Respondent

HEREMAIA v THE QUEEN [2017] NZHC 2707 [6 November 2017]

Introduction

[1] On 8 August 2017, Judge RJ Collins sentenced Ms Heremaia1 to two years and nine months’ imprisonment on a charge of aggravated burglary.2 Ms Heremaia now appeals that sentence, contending that it is manifestly excessive.

Background

[2] Ms Heremaia turned 17 years on 3 December 2016. On 4 January 2017, she was sentenced in the Auckland District Court for unlawfully getting into a motor vehicle.3 Her sentence was to come up for sentence if called upon within nine months. However, on 26 February 2017, she again unlawfully got into a motor vehicle.
Ms Heremaia was sentenced for that offence on 15 March 2017 to 40 hours’

community work.

[3] On 21 March 2017, six days later, Ms Heremaia committed the aggravated burglary. She pleaded guilty to that offence.

[4] The aggravated burglary was a serious one. On 20 March 2017, at 10:45 pm, a silver BMW motor vehicle was taken at gunpoint during an aggravated robbery. Four or five hours later, Ms Heremaia and three others drove to the BP Pakuranga in the stolen BMW motor vehicle. Judge Collins described what happened next:

[4] At the time the service station was open but serving customers via the night service window. The defendant and three others exited the car and used a rock to smash the bottom half of the glass door. The shop assistant, on seeing these actions, fled the customer area of the store and locked himself in an office and alerted the security company and police. Once the door was smashed, the offenders entered the premises. One of the four was armed with a cut-down side by side double-barrelled shotgun with a pistol handgrip. The group went to the cigarette cabinets and till and stole a large quantity of cigarettes and tobacco as well as cash from the till. In total, the offenders stole
$341 in cash and $5000 worth of cigarettes and tobacco.

1      Police v Heremaia [2017] NZDC 17915.
2      Crimes Act 1961, s 232(1)(a).
3      Crimes Act, s 226(2).

The Sentence

[5] Judge Collins adopted a starting point by reference to R v Mako4 because its principles apply to aggravated burglary as well as to aggravated robbery.5 The circumstances of the aggravated burglary determine the degree of application. In this case, Judge Collins observed that the Police could have charged aggravated robbery instead of aggravated burglary:

[7] … The actual criminality here is exactly the…

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 Heremaia v The Queen

Details

AGLC: Heremaia v The Queen [2017] NZHC 2707
Case: [2017] NZHC 2707
Decision Date: 6 November 2017

CaseChat Overview and Summary

Dallas Heremaia appealed against her sentence of two years and nine months' imprisonment, imposed for aggravated burglary, contending that it was manifestly excessive. The offence was a serious one: a silver BMW motor vehicle was taken at gunpoint during an aggravated robbery. Four or five hours later, Ms Heremaia and three others drove to the BP Pakuranga in the stolen BMW motor vehicle. The group went to the cigarette cabinets and till and stole a large quantity of cigarettes and tobacco as well as cash from the till. The District Court Judge had adopted a starting point by reference to R v Mako because its principles apply to aggravated burglary as well as to aggravated robbery. The circumstances of the aggravated burglary determined the degree of application. In this case, the Judge observed that the Police could have charged aggravated robbery instead of aggravated burglary. Judge Collins uplifted the starting point by six months to take into account two factors. The first was that Ms Heremaia offended while she was subject to a sentence which had been imposed on her only six days earlier. The second was that, despite having been sentenced recently on two occasions for unlawfully getting into a motor vehicle, Ms Heremaia was party to the use of a stolen vehicle for the purposes of the aggravated burglary. Judge Collins then considered Ms Heremaia’s personal circumstances. He gave a discount of 20 per cent for Ms Heremaia’s youth. The Judge accepted that the pre-sentence report was positive in its description of Ms Heremaia but he was not convinced “on any objective basis” that Ms Heremaia was remorseful. Judge Collins found it particularly relevant that Ms Heremaia had performed very little of the sentence of community work imposed on her in March 2017 prior to her arrest at the beginning of May 2017. Judge Collins then allowed Ms Heremaia a full discount of 25 per cent for her guilty plea. This resulted in the end sentence of two years and nine months’ imprisonment. Ms Heremaia's counsel submitted that the starting point of four years' imprisonment was too high, and that the uplift of six months was not justified. Ms Heremaia's counsel also submitted that the Judge was wrong not to give a separate discount for Ms Heremaia’s remorse and her insight into her offending as described in the pre-sentence report. The High Court found that Judge Collins adopted a light starting point of four years’ imprisonment for the offending. His uplift of six months’ imprisonment to account for offending while subject to a recent sentence and for the use of the stolen BMW was stern. Nevertheless, the final starting point of four years six months’ imprisonment was well within the available range. Judge Collins then gave a discount for Ms Heremaia’s youth of 20 per cent. Under the circumstances, that is as great a discount as could possibly be given. The Judge recognised the positive pre-sentence report and did as much as he reasonably could to take account of it in the context of Ms Heremaia’s youth. There was no extraordinary factor in Ms Heremaia’s case that would have justified an extraordinary discount in the interests of rehabilitation and reintegration. Particularly in the context of serious offending. Similarly, the discount for the plea of guilty of 25 per cent was a greater discount than he needed to award. In all, Judge Collins discounted the starting point by 39 per cent. The end sentence of two years and nine months’ imprisonment was well within the available range. The appeal was dismissed.

Orders