Hoefhamer v The King

[2023] NZHC 348

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-000422

[2023] NZHC 348

BETWEEN

RICHARD HOEFHAMER

Appellant

AND

THE KING

Respondent

Hearing:	28 February 2023
Appearances:	P Tomlinson for Appellant H Brown for Respondent
Judgment:	28 February 2023

ORAL JUDGMENT OF VENNING J

Appeal against sentence

Solicitors:           Meredith Connell, Auckland Counsel:  P H H Tomlinson, Auckland

HOEFHAMER v R [2023] NZHC 348 [28 February 2023]

[1]    Mr Hoefhamer pleaded guilty to charges of possession for the supply of methamphetamine, unlawfully carrying a restricted weapon (a taser), possession of utensils, and possession for supply of the drug Fantasy. On 28 October 2022 he was sentenced by Judge P J Sinclair to six months’ community detention, together with 18 months’ intensive supervision.1 In addition, the Judge imposed 100 hours of community work.

[2]    Mr Hoefhamer appeals against the Judge’s sentence as being manifestly excessive.

Background

[3]    On 21 October 2020, Mr Hoefhamer was found by Police in his car sitting idle at a green light in Hopetoun Street in Ponsonby. He was slumped over the steering wheel and appeared unconscious. In the process of trying to wake him up the Police found a medium sized container with 30.3 g of methamphetamine inside, used needles and syringes, a small taser and small glass bottle containing 32.8 g of GBL and NMP.

District Court sentence

[4]    The Judge took as a lead charge the possession of methamphetamine which, given the amount, was by definition for the purposes of supply. However, accepting that Mr Hoefhamer was a heavy personal user of methamphetamine the Judge considered him to be playing a lesser role and imposed a starting point of two years, nine months on that charge. The Judge then uplifted that by six months for the remaining three charges. She then imposed a further modest uplift of two months’ imprisonment given Mr Hoefhamer’s prior history, leading to an adjusted start point of three years, five months.

[5]    The Judge then took account of the considerable efforts by Mr Hoefhamer to address his addiction and allowed a reduction of between 25 and 30 per cent for that, and a further 10 per cent for the time he had spent on restrictive bail. She then allowed a further discount of 25 per cent for his guilty pleas. On that basis she reached a short

1      R v Hoefhamer [2022] NZDC 22271.

sentence of imprisonment of 15 months. The Judge was mindful that Mr Hoefhamer was in full time employment which was pro-social, and having regard to the steps he had taken, she allowed a further two and a half months to take account of the time he had spent in custody on remand. Ultimately she imposed a sentence of six months’ community detention, intensive supervision for 18 months, and community work of 100 hours.

Appeal

[6]    Mr Hoefhamer appeals against the sentence on the basis it is manifestly excessive. Counsel submits an end sentence of intensive supervision or supervision with some community work limited to 100 hours would have been the appropriate sentence. The nub of the appeal really is whether the Judge imposed the least restrictive outcome.

Approach to the appeal

[7]    In Tutakangahau v R the Court of Appeal confirmed that s 250(2) of the Criminal Procedure Act 2011 was not intended to change the approach taken to sentence appeals.2 In particular the Court confirmed an appellant had to identify an error and the need for the appeal court to be satisfied that a different sentence should be imposed.

[8]    While s 250(2) makes no express reference to the concept of a manifestly excessive or inadequate sentence the Court recognised those concepts are longstanding and are consistent with the statutory language and should continue to be utilised when considering s 250(2).

[9]    Importantly, the focus in any sentence appeal remains on whether the sentence imposed is within range, rather than the process by which the sentence was reached.

2      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 2014 NZCA 279.

Appeal points

[10]   In his written submissions Mr Tomlinson argued the Judge had erred in not giving separate discounts for Mr Hoefhamer’s addiction and his efforts at rehabilitation. He submitted it was appropriate for the Judge to have given separate discounts for the addiction issues and the efforts at rehabilitation so that the result was the discount given for those factors was effectively inadequate.

[11]   Next, he submitted the Judge erred in not imposing the least restrictive outcome, which would have been intensive supervision or supervision with 100 hours’ community work. He noted that the Judge had said that when a sentence of less than two years was reached she could consider an electronically monitored sentence but in fact all sentencing options were obviously open to her depending on the circumstances.

[12]   Further, Mr Tomlinson submitted that deterrence should not have been at the forefront of the Judge’s considerations as it appeared to have been given the steps that Mr Hoefhamer had taken. He referred to the Court of Appeal decision of R v Zhang where the Court had noted the principle of general deterrence is based on the theory of rationale choice, which was less relevant in certain circumstances such as these.3 Again he argued that given the steps Mr Hoefhamer had taken in relation to rehabilitation, the sentence could be discouraging to him and others.

[13]   Overall Mr Tomlinson submitted the principles of denunciation and deterrence should not have been given the emphasis they were given. In the circumstances they were outweighed by the background to Mr Hoefhamer’s offending, his addiction issues, and his efforts at rehabilitation. For those reasons the appeal should be allowed.

Crown response

[14]   The Crown acknowledges that discounts for addiction and rehabilitation ought to be separated as confirmed by the Supreme Court in Berkland v R.4 However, the

3      R v Zhang [2019] NZCA 507.

4      Berkland v R [2022] NZSC 143.

question is not how the sentence is arrived at but whether the ultimate sentence is appropriate.

Analysis

[15]   I agree with the submission for the Crown that a 30 per cent discount for both the addiction as a causative factor in the offending and for Mr Hoefhamer’s rehabilitative efforts was sufficient. The 30 per cent total discount applied for both factors could have been expressed as a 20 per cent discount for addiction and 10 per cent for rehabilitation, or 15 and 15. Either way the 30 per cent deduction for both addiction and rehabilitation was a significant and appropriate reduction in the starting sentence in this case, particularly when taken with the generous 25 per cent for the guilty plea given the strength of the Crown case and the other reductions provided for by the Judge which effectively amounted to approximately 65 per cent discount.

[16]   As to the submission the sentence imposed was not the least restrictive outcome, while the Judge referred to electronically monitored sentences she was clearly aware that other sentences were available to her. Further as Ms Brown noted, the Judge was initially considering home detention but then reduced that to community detention with a view to imposing the least restrictive sentence.

[17]   While the Judge’s approach in my judgment appropriately considered Mr Hoefhamer’s rehabilitation, it was also necessary for the sentence to contain an element of deterrence. I am unable to accept Mr Tomlinson’s submission that that was not as relevant or that it should not have been part of the exercise in this case. The lead charge was possession of methamphetamine for supply. The amount involved was six times the presumption. The Judge was right to take that into consideration.

[18]I note at an early part of her sentencing notes the Judge had stated:

[8] When sentencing you today, I have to be mindful of the purposes and principles of sentencing, that means I have to give you the message that you cannot deal with illicit drugs like methamphetamine and GBL because of the terrible harm they generate. Deterrence is an important factor but where addiction impacts on the offending, that should also be recognised. I also need to be mindful of your rehabilitative needs because if your rehabilitative issues are addressed it will reduce the chances of you engaging in this type of offending again which will benefit not only you but also the community.

[19]   Section 69C of the Sentencing Act 2002 provides circumstances where a sentence of community detention is appropriate. It will be appropriate if the Court is satisfied it will achieve one or more of the following purposes:

(a)to hold the offender accountable;

(b)to promote a sense of responsibility;

(c)to denounce the conduct; and

(d)to deter the offender or others from committing the same or similar offending.

[20]   Overall I agree with the Crown submission that when considered as a whole, the sentencing notes demonstrate that those purposes appropriately informed the Judge’s decision-making process. Community detention not only serves deterrence but as Ms Brown noted it addresses personal accountability.

[21]   Standing back and looking at the matter overall, given the substantial amount of methamphetamine found in Mr Hoefhamer’s possession, notwithstanding his addiction and the steps taken to rehabilitate himself, for which he is to be supported, the end sentence of community detention, community work, and intensive supervision (which is effectively for his benefit) cannot in any way be said to be manifestly excessive.

Result

[22]The appeal is dismissed.

Venning J