Hiraka v The King

[2023] NZHC 2898

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-000391

[2023] NZHC 2898

BETWEEN

ARAPETA HIRAKA

Appellant

AND

THE KING

Respondent

Hearing:	2 October 2023
Appearances:	H G de Groot for Appellant (via VMR) B So for Respondent
Judgment:	19 October 2023

JUDGMENT OF ANDERSON J

This judgment was delivered by me on 19 October 2023 at 3:00 pm

……………………………… Registrar/Deputy Registrar

Solicitors:    Crown Solicitor, Manukau

HIRAKA v R [2023] NZHC 2898 [19 October 2023]

Introduction

[1]    Arapeta Hiraka pleaded guilty to charges of attempted aggravated robbery1 and unlawful possession of a firearm.2 Judge Y Yelavich sentenced him to two years and eight months’ imprisonment.3 He appeals his sentence on the grounds that:

(a)The possession of a firearm offence added little, if anything, to his culpability and the uplift of six months for that offence was excessive.

(b)The Judge was not made aware of, and did not allow discount for, the fact that he was remanded in custody on recall from 20 June 2022 to  7 July 2023. An adjustment was required to reflect this.

[2]    The appellant submits that there should have been no more than three months uplift to mark the firearm offence and an adjustment of nine months should have been applied to mark the recall. The appellant says a sentence of one year and nine months’ imprisonment ought to be substituted. The respondent submits the end sentence of two years and eight months’ imprisonment was a stern, but not manifestly excessive sentence.

Approach on appeal

[3]    This Court must allow the appeal if it is satisfied that there is an error in the sentence imposed, and that a different sentence should be substituted.4 The overall question on appeal is whether the sentence was manifestly excessive or the sentence is wrong in principle.5

[4]    The Court will not, ordinarily, intervene when the sentence is within the range that can be properly justified by accepted sentencing principles. The focus is on the end result rather than the process by which the sentence was reached.6   In exceptional

1      Crimes Act 1961, ss 72, 235(c) and 311(1): maximum penalty of seven years’ imprisonment.

2      Arms Act 1983, s 45(1)(b): maximum penalty of four years’ imprisonment or a fine not exceeding

$5,000 or to both.

3      R v Hiraka [2023] NZDC 14340.

4      Criminal Procedure Act 2011 s 250(2).

5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[35].

6 At [36].

cases, it may nonetheless be necessary to correct a sentence that is within range (for example, where there has been an arithmetical error).7

The offending

[5]    On 9 May 2022, Mr Hiraka committed the index offence underpinning the appeal. The summary of facts records:

As [the two security guards] were walking back to their van, the defendant approached them. He pulled a sawn-off single-barrelled shotgun out of a grocery bag, pointed it at [one of the guards] and said “Hey brother I need money”. The defendant then demanded that [the guard] open the safe inside the van, and said “open up the safe open up the safe, please I only have one shot”.

[The guard] complied with the defendant’s instructions and opened a safe inside the van, however the defendant was unable to retrieve any money from inside the safe.

[6]    When Mr Hiraka was unable to take any money, he fled in a waiting vehicle. There is no evidence that the gun was loaded at the time of the offending.

[7]    The next day, the vehicle was located in Manukau. Police located an unloaded sawn-off, single-barrelled shotgun on the passenger seat. The sawn-off stock and barrel parts were located in the boot. Five shells were found around the driver’s footwell. Mr Hiraka was arrested and charged.

District Court Decision

[8]    The Judge imposed an end sentence of 32 months’ (two years and eight months’) imprisonment constructed as follows:

(a)A starting point of three years and three months’ imprisonment on the attempted aggravated robbery charge.8

(b)An uplift of six months for the charge of unlawful possession of a shotgun.9

7 At [36].

8      R v Hiraka, above n 3, at [11].

9 At [11].

(c)An uplift of six months for Mr Hiraka’s previous conviction history.10

(d)An uplift of two months for offending while subject to release conditions.11

(e)Discounts of 40 per  cent  being  25  per  cent  for  guilty  plea  and  15 per cent for personal circumstances.12

[9]    Mr Hiraka accepts all aspects of the sentence to be correct other than the omission to discount for time on recall, and the uplift for the firearm charge.

Uplift for firearm offence

[10]   The Judge uplifted the starting point by six months for the unlawful possession of a firearm offence. As the Judge explained:13

This offending occurred on a separate day. While it involved the firearm used during the previous day, the shotgun was found with ammunition in a separate location, with the risks inherent in having a shotgun and ammunition in a vehicle in an area where members of the public may congregate. I do not agree with counsel’s submission that an uplift would be tantamount to double counting.

1. The Crown referred me to Campbell v R where the Court of Appeal observed:14

Although there are few decisions where starting points have been set on the basis that firearms offending was the lead charge, possession of a single firearm with no mitigating circumstances generally calls for a starting point in the vicinity of two to three years’ imprisonment.

[12]   The Crown also relied upon R v Kane where Brewer J adopted a 12-month starting point on one charge of unlawful possession of a firearm.15 The starting point reflected that the offender was a gang member found in possession of a shotgun under his bed with ammunition where there was no evidence of a criminal purpose.16 Having

10 At [12].

11 At [12].

12     At [14] and [20]-[21].

13 At [11].

14     Campbell v R [2022] NZCA 579 at [18].

15     R v Kane [2017] NZHC 340 at [3].

16 At [3].

said that, the Court rejected the suggestion that there was any reasonable possibility the shotgun was for recreational shooting.17

[13]   More relevantly to the present case, both counsel relied on R v Newton where the appellant pointed a sawn-off shotgun at a service attendant during the robbery of a service station.18 He was arrested 10 days later at a time when he injured himself getting the sawn-off shotgun out of the boot of his car.19 He was arrested at the hospital. This was the same weapon used in the earlier aggravated robbery. The firearm offending was more serious than in the present case in that the firearm was loaded.

[14]   The District Court Judge had made an uplift of 14 months’ imprisonment for the firearm offence.20 In coming to that level of uplift, the Judge distinguished Kane on the basis that there was there no evidence that Mr Kane possessed the weapon for a criminal purpose.21 On appeal the 14-month uplift was reduced to nine months.22

[15]   Mr Newton argued on appeal that the sentencing Judge erred in treating the connection between the sawn-off shotgun and the aggravated robbery as an aggravating factor of the firearm offence in that this aggravating factor was already reflected in the starting point for the lead offending.23 Eaton J considered that the totality principle required consideration of the extent of the connection:

[38]There is no dispute that connection is strong. It is accepted the sawn- off shotgun, the subject of the firearms charge, was the weapon used ten days earlier in the aggravated robbery. An essential aggravating factor of the aggravated robbery offence was the possession of the firearm. I agree with [counsel for the appellant] that a concurrent sentence might have been imposed had Mr Newton been arrested on the night of the aggravated robbery. But what of possession ten days later?

…

[40]In my view, it is appropriate that the uplift should reflect that the use of a firearm is a significant aggravating factor in the lead offending,

17 At [3].

18     R v Newton [2021] NZHC 3370 at [2]-[4].

19 At [6].

20 At [12].

21 At [10].

22 At [40].

23 At [21].

as reflected in the charge of aggravated robbery. The same weapon was in Mr Newton’s possession ten days later. There is a very strong connection between the  two  offences.  I  find  that  the  uplift  of  14 months’ imprisonment does not reflect that connection. I assess the appropriate uplift to be one of nine months’ imprisonment.

[16]   Mr de Groot for the appellant submits that it is a question of fact and degree how closely the offences are connected. He submits that had Mr Hiraka been arrested in possession of the firearm on the day of the robbery it is unlikely that the Crown, using their discretion, would have charged him with a separate offence of possession, albeit he accepts it would have been a course open. He acknowledges that an uplift at some level was probably appropriate for the firearms offence but submits that this was fairly reflected in a three-month uplift given the significant connection.

[17]   I agree that there is a strong connection here between the aggravated robbery and the unlawful possession of the shotgun. Caution does need to be exercised to avoid double-counting between the shotgun as an aggravating feature of the lead offence and an uplift for the firearm offence.

[18] However, the Judge was plainly alive to the risk of double-counting in settling on a six-month uplift. I agree with the Judge that a six-month uplift is appropriate for the reasons expressed in the District Court decision set out at [10] above. I consider this within the range available even having regard to the strong connection.

Discount for time on recall

[19]   The appellant had been released  on  parole for  his  previous  offending  on 21 June 2021. Following the present offending, an interim recall order was made on 24 May 2022, which was made final on 20 June 2022. The appellant was sentenced on 7 July 2023.

[20]   At sentencing, the Judge was not alerted to the fact that the time that the appellant had spent in custody between 24 May 2022 and 7 July 2023 was towards his previous sentence (approximately 13-and-a-half months). The Judge had uplifted the sentence by two months for offending while subject to release conditions.24

24     R v Hiraka, above n 3, at [12].

[21]   The Crown acknowledges that the Judge should, and would, have taken the recall time into account had it been raised with her. That is because recall prior to sentencing is regarded as bringing about a form of “double punishment”, which is appropriately reflected in an adjustment to sentence.25 Otherwise, the individual is punished at least in part for breach of release conditions by way of the recall itself (loss of a benefit), an uplift of sentence to reflect the breach, and dilation of the first parole eligibility date on the new sentence.26

[22]   The quantum of discount is discretionary. However, it is relatively common to address this by applying an uplift to reflect the breach of conditions and then allow a credit of approximately two-thirds or a little more of the time on recall.27

[23]   The Crown noted that a discount tends to reflect a balance between an uplift for offending on parole and ensuring the offender is not subjected to double punishment. In that respect Ms So referred me to Oliver v R28 where the sentencing judge had not imposed an uplift to reflect that the offending occurred while on parole nor a discount to reflect that Mr Oliver had spent approximately nine months in custody following a recall order for previous offending. Mr Oliver unsuccessfully appealed. The Court of Appeal considered an uplift of nine months would have been within the available range given Mr Oliver was being sentenced for two separate incidents both while on parole.29 This uplift would have, to some extent, cancelled any discount available for the nine months Mr Oliver spent in custody on recall.30 The Court held:

[10] …The potential difference between the credit for time spent in custody on recall and the uplift for offending while on parole is not so great as to result in an end sentence which is manifestly excessive.

25 Fane v R [2019] NZHC 408 at [40].

26 This is due to the combined effect of ss 76, 90 and 91 of the Parole Act 2002. Under s 90, pre- sentence detention is automatically counted as time-served on the sentence. However, subss 91(5) and (6) provide that pre-sentence detention does not include time spent in prison subject to a final recall.

27 Fane v R, above n 25, at [48]. In Morehu v R [2020] NZHC 196 at [27] Gwyn J acknowledged: “on the analysis in Fane Mr Morehu might have sought a credit of approximately two-thirds or a little more, of the period on recall. That would amount to seven months. Mr Bean seeks only five months. I am satisfied that is an appropriate figure.”

28 Oliver v R [2014] NZCA 285.

29 At [10].

30 At [10].

[24]    On review of the discounts in cases provided to the Court31 the Crown says an appropriate range would be four to 10 months. The lower end of that range relies on R v McMeekan where Osborne J did not apply an uplift for offending on parole but allowed a credit for six months (29 per cent) to recognise the 21 months the offender spent on recall.32 That was in the context where Osborne J had given a sentencing indication that had applied no uplift for offending while on parole and was adjusting the indication for this and time on recall at sentencing.33

[25]   Mr de Groot emphasised that the other cases relied upon by the Crown range from a discount for recall of 67 per cent,34 71 per cent,35 75 per cent,36 and 76 per cent.37 McMeekan involved an aggregated uplift for parole conditions and discount for recall. McMeekan illustrates that the Court takes a range of approaches to recall, sometimes depending on how the matter comes before the court and the elements of the sentence.38 That really goes to show that the matter is an issue of discretion.

[26]   For present purposes, I accept that Mr Hiraka’s 13-and-a-half months spent on recall does need to be taken into account. I come back to where that leaves the appropriate sentence below.

Manifestly excessive?

[27]   The Crown submits that the failure to allow a discount for the time spent on recall did not automatically make the sentence manifestly excessive, given that the focus is on the sentence imposed, rather than the process by which it was reached.39

31     Tukuafu v R [2015] NZCA 251; Sililoto v R [2016] NZCA 328; R v Griffiths [2018] NZHC 3132;

Fane v R, above n 25; and R v McMeekan [2022] NZHC 2557.

32     R v McMeekan, above n 31, at [40].

33 At [39].

34     R v Griffiths, above n 31, at [8].

35     Tukuafu v R, above n 31, at [13].

36     Sililoto v R, above n 31, at [40].

37  Fane v R, above n 25, at [52].  In that case, the discount granted was 100 per cent,  but this was   due to counsel error at the time of sentencing. But for that error, the discount for time spent on recall would have been 76 per cent.

38 Other examples in an appellate context are R v Repia CA12/95, 26 May 1995 and Vernon v R

[2010] NZCA 308.

39 Tutakangahau v R, above n 5, at [36].

[28]   On this point the Crown argues that the absence of a discount for time spent on recall was countered by the starting point adopted for the lead charge as well as the uplifts imposed for the firearm charge and offending while subject to release conditions. Ms So submits that because these could justifiably have been higher the overall sentence is not manifestly excessive.

[29]   In setting the starting point of three years and three months’ imprisonment the Judge considered Carpenter v R40 and Allen v R.41 These same cases were relied upon by the Crown on appeal to say a starting point of three years and five months’ imprisonment would have been justified.

[30]   In Carpenter a starting point of three years’ imprisonment was confirmed on appeal. That case involved the defendant armed with a tomahawk demanding money at a convenience store. When refused, the defendant raised the tomahawk above his head but the shop owners were able to escape. The defendant left without anything being taken.42 A four-year starting point was reduced to three years to reflect that the offending was incomplete or inchoate.43 This was upheld by the Court of Appeal, which emphasised how close the actions were to completing the offence.44

[31]   In Allen, a three-and-a-half-year starting point was adopted for attempted aggravated robbery.45 This involved a victim being set up to bring $10,000 in cash to acquire a vehicle. The offender and two others lay in wait for their car and one of them smashed the car windows and aimed a shotgun at the victim. Two shots were fired.46 Had the robbery been successful, the Judge said the starting point would have been four years, rather than the three-and-a-half years adopted.47 Cooke J held that the starting point was not inappropriate.48

40     Carpenter v R [2010] NZCA 560.

41     Allen v R [2022] NZHC 48.

42     Carpenter v R, above n 40, at [4]–[6].

43     R v Carpenter DC Napier CRI-2009-041-83, 16 July 2010.

44     Carpenter v R, above n 40, at [14].

45     R v Allen DC Whanganui CRI-2020-083-1494, 27 August 2021 at [12].

46     Allen v R, above n 41, at [3]–[4].

47     R v Allen, above n 45, at [10].

48     Allen v R, above n 41, at [14].

[32]   The offending here was less serious than in Allen given the level of premeditation, the ambush, the struggle and discharge of a firearm. The offending was more serious than in Carpenter given it involved presentation of a more lethal weapon directly at one of the victims and the assistance of associates.

[33]   The appropriate starting point lay somewhere between the two starting points in those cases (between three and three-and-a-half years). I agree it could justifiably have been at the upper end of that range.

[34]   Ms So further submits that an uplift of eight months would have been justified for the firearm offence. I reject this because in my view that greater uplift would start to engage an element of double-counting with the aggravating feature of the robbery in light of my discussion on this aspect above.

[35]   In the District Court, the Judge adopted the starting point and uplift for the firearm offence that were proposed by the Crown. Mr de Groot was critical of the Crown now proposing higher uplifts. He refers to the principle that the Crown is not divisible, applicable even more so in this case where the Crown on appeal is departing from what was submitted in the Court below. While there is some force in that contention, Ms So’s submission was to the effect that the various components could “justifiably” be higher rather than linking this directly to what was submitted or what the sentencing Judge concluded. The Crown’s emphasis in this Court is on whether the sentence is manifestly excessive in all the circumstances, which is a reasonable approach to take on appeal. In substance it was the approach taken in Oliver v R49 on appeal, although there approached in a more broad-brush way.

[36]   It is artificial to “neutralise” the effect of the Judge not being alerted to the need to adjust for time spent on recall by a mechanistic approach to the elements of the sentence under appeal. Rather, it is appropriate to stand back and look at the overall end sentence to assess whether it is manifestly excessive in light of a relatively lengthy period on recall.

49     Oliver v R, above n 28.

[37]   In my view the sentence does need to be adjusted to reflect the time on recall. In this appeal the circumstances include that this is the second time Mr Hiraka has offended while subject to release conditions. There is a need for an appropriate balance between an uplift for that factor and a discount for time on recall in the context of an assessment of what overall end sentence is appropriate. The Judge here had applied only a two-month uplift for the offending while on parole but without the opportunity to consider the overall picture of the time spent in custody. In my assessment there should be a reduction in the sentence by six months. This is sufficient to avoid double punishment.

Result

[38]   The appeal is allowed in part. The sentence of two years and eight months’ imprisonment is quashed. I substitute a sentence of two years and two months’ imprisonment to reflect that the  District  Court  was  not  alerted  to  the  fact  that Mr Hiraka had spent 13-and-a-half months on recall.

Anderson J