Huata v R

[2017] NZHC 2833

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

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

CRI-2017-416-19 [2017] NZHC 2833

BETWEEN

PARIS HUATA

Appellant

AND

THE QUEEN Respondent

Hearing:	1 November 2017
Appearances:	N Wright for the Appellant A Richards for the Respondent
Judgment:	17 November 2017

JUDGMENT OF CULL J

[1]      Mr Huata pleaded guilty to the following four charges: wilfully attempting to pervert the course of justice,1 escaping custody,2 possession of an offensive weapon3 and intimidation.4    On 7 September 2017, Mr Huata was sentenced to five months’ home detention by Judge Cathcart.5

[2]      Mr Huata appeals his sentence on the basis the Judge gave insufficient discount for time spent on electronically-monitored (EM) bail, which resulted in a manifestly excessive sentence.  The Crown opposes this appeal and submits the discount given

by the Judge, of five months for time spent on EM bail, was entirely within range of

1      Crimes Act 1961, 117(e). Maximum penalty is seven years’ imprisonment.

2      Section 120(1)(c). Maximum penalty is five years’ imprisonment.

3      Section 202A(4)(a). Maximum penalty is three years’ imprisonment.

4      Summary Offences Act 1981, s 21(1)(a).  Maximum penalty is three months’ imprisonment or a fine not exceeding $2,000.

5      R v Huata [2017] NZDC 23404.

HUATA v THE QUEEN [2017] NZHC 2833 [17 November 2017]

the Judge’s discretion.  Further, the Crown argues the overall sentence placed on Mr

Huata was lenient in the circumstances and should not be disturbed on appeal.

[3]      The key issue in this case was whether a discount of five months’ for 15 months’ spent on EM bail was in error at sentencing and whether that resulted in a sentence which was outside the available range.

Factual background

[4]      On 2 March 2016, Mr Huata was driving a car in Raupunga with his brother in the vehicle. Constable Prentice stopped the vehicle as he had seen a trailer connected to it with no number plate and no lights.  The vehicle also had a smashed windscreen with no registration or warrant of fitness sticker attached.  Both men knew Constable Prentice.

[5]      Mr Huata was uncooperative in Constable Prentice’s dealings with him and challenged the Constable to a fight.  The Constable could smell a strong smell of cannabis coming from within the vehicle.  He invoked his search powers and advised the two men he would search the vehicle. At this point, Mr Huata told the Constable he was not to search the vehicle and continued to threaten to fight him.

[6]      The Constable began to search the vehicle and observed a white package in the centre console, which he suspected contained cannabis.  He also saw a baseball bat down the side of the driver’s seat.  The Constable placed Mr Huata under arrest for possession of an offensive weapon.  Mr Huata tried to start the vehicle to leave the scene and told the Constable he would not be arrested. The Constable then requested back-up from Wairoa.

[7]      Mr Huata grabbed the baseball bat, told the Constable he would not get it, ran across the road with the bat and threw it down the bank into an area of bush. Mr Huata then took the white package and other items from inside the vehicle and ran away from the scene with those items.  This behaviour constitutes the two charges of escaping police custody and attempting to pervert the course of justice. The Constable was the only officer at the scene so kept his distance.

[8]      When Mr Huata returned to the vehicle he continued to threaten the Constable and clenched his fists.  The Constable pulled out his OC spray, at which point Mr Huata became compliant and put his hands out to be handcuffed.  Once handcuffed, Mr Huata refused to get into the back of the police vehicle, threw himself around and invited the officer to hit him.  Mr Huata told his brother to get “the whole village” to come down and sort out Constable Prentice, which resulted in the charge of intimidation.

[9]      Mr Huata then opened the door of the vehicle and let himself out despite being told to remain.  Mr Huata was again placed in the back of the vehicle.  At this point, more police staff arrived on the scene. A search was conducted to locate the items Mr Huata had removed and concealed. Mr Huata was asked where the items were and he showed the police an area of bush where he had hidden them and said they had been removed by his associates.  Mr Huata told one of his associates to get the items.

[10]     One of the associates took another police officer to a nearby sleepout and showed him a number of items under a bed including an axe, knife, pliers and spanner. The baseball bat and white package were not recovered.

[11]     Mr Huata is 25 years of age.  He has 23 previous convictions, however, most of these are relatively minor offences, except one charge of aggravated robbery for which  Mr  Huata  was  sentenced  to  three  years  and  four  months’ imprisonment.

Mr Huata spent 15 months’ on EM bail, without breach, for the present offending before sentencing.

District Court decision

[12]     Judge Cathcart fixed a starting point of two years’ imprisonment for the lead charge of attempting to pervert the course of justice.   In light of the totality of

Mr Huata’s offending, the Judge uplifted this by two months’ imprisonment, to a starting point of 26 months’ imprisonment.

[13]     In examining the relevant mitigating factors, the Judge highlighted the 15 months’ Mr Huata had spent on EM bail on a standard 24-hour curfew.  The Judge referred to the comments of the Court of Appeal in R v R, where the Court considered

a discount of four to six months was available for 12 months spent on EM bail with very restrictive conditions and compliance.6     The Judge noted that “the Court of Appeal here was quite clear that large discounts of the nature sought by your counsel are inappropriate.”7   The Judge commented that a discount was appropriate, but at a figure much less than the 75 per cent proposed by Mr Huata’s counsel.  The Judge gave a discount of five months’ (or 33 per cent of time spent) for the time spent on EM bail.

[14]     The Judge gave a further one month discount in light of a range of other mitigating factors: Mr Huata’s personal circumstances, expressions of remorse and prospects of rehabilitation. The Judge also gave a 20 per cent discount for Mr Huata’s guilty plea.

[15]     This resulted in a final end sentence of 16 months’ imprisonment.  The Judge noted Mr Huata had also spent three and a half months in pre-trial custody, which was relevant if a sentence of home detention was imposed.

[16]     When determining that home detention was an appropriate sentence, the Judge highlighted that the combination of two factors was significant: Mr Huata now has a greater insight into his offending and there are positive factors pointing towards rehabilitation.  The Judge gave a further reduction to the sentence of home detention to reflect that Mr Huata also spent three and a half months in pre-trial custody.

[17]     The final sentence imposed on all charges was five months’ home detention, with conditions.

Approach to appeal

[18]     This appeal is brought under s 250 of the Criminal Procedure Act 2011.  An appeal against sentence is an appeal against a discretion. An appeal against sentence must be allowed if the Court is satisfied that, for any reason, there is an error in the

sentence imposed and a different sentence should be imposed.8   The focus is on the

6      R (CA528/2016) v R [2017] NZCA 210 at [13]–[14].

7      Huata, above n 5, at [19].

8      As confirmed in Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

final sentence and whether that was in the available range, rather than the exact process by which it was reached.9

Mr Huata’s position

[19]     Mr Huata appeals his sentence on the basis the Judge gave insufficient discount for time spent on electronically-monitored (EM) bail, which resulted in a manifestly excessive sentence.

[20]     Ms Wright, counsel for Mr Huata, highlights that the reduction in sentence to reflect time spent on EM bail is a discretionary matter and no mathematical formula should be applied.10

[21]     Ms Wright highlights the relevant circumstances in Mr Huata’s case that the

Court should take into account:11

(a)       Mr Huata spent 15 months on EM bail;

(b)the bail conditions imposed were relatively restrictive, being allowed only four absences from the EM bail address (three of which were to attend court and a further absence to allow Mr Huata to go to Hastings Hospital to support his partner during surgery);

(c)      Mr Huata complied with the bail conditions during the period and there were no breaches;

(d)      the bail address was at Mr Huata’s relatively isolated home in Mohaka;

(e)      bail conditions did not allow association with any patched members or associates of the Black Power gang, which meant he was cut off from

his brothers and many friends for a 15-month period;

9      Ripia v R [2011] NZCA 101 at [15].

10     R v Faisandier CA 185/00, 12 October 2000; and Rangi v R [2014] NZCA 524 at [10].

11     In accordance with the Sentencing Act 2002, s 9(3A).

(f)      Mr Huata was unable to meet his obligations to the Mohaka community for a significant period of time, as it is expected that Mohaka residents look after Kaumatua and elders through labour and providing firewood;

(g)no absence from bail was allowed for Mr Huata to attend the birth of his son and was unable to support his partner who was hospitalised for some weeks following the birth;

(h)Mr Huata was also unable to secure absences to attend the tangis of three close family members.

[22]     Ms Wright submits that it cannot have been the Court of Appeal’s intention in R v R to place a ceiling on the discount available for time spent on EM bail when the offender had been subject to particularly harsh conditions. If Parliament had intended this to be the case, such a limitation would have been introduced to the Sentencing Act

2002.  Mr Huata’s conditions were so restrictive and his compliance was impressive considering his personal circumstances that it would not be just to apply R v R.

[23]     Ms Wright submits that a discount of 75 per cent (or a reduction of just over

11 months) would have been appropriate to reflect time spent on EM bail.  This, in light of Mr Huata’s personal circumstances and prospects of rehabilitation means that the end sentence should have been one of supervision, as was recommended in the PAC report.  In particular, Ms Wright highlights:

(a)      Mr Huata has turned his life around and handed in his gang patch prior to being granted EM bail;

(b)      he has not previously had a rehabilitative sentence;

(c)      continued isolation from his community through a sentence of home detention leaves Mr Huata unemployed and unable to take up the benefit of department programmes to assist him into employment; and

(d)a sentence of home detention will leave Mr Huata isolated from his extended family and community for a second Christmas.

[24]     Ms  Wright  submits  the  sentencing  approach  was  somewhat  mechanical, resulting in an end sentence that was overly restrictive.  Ms Wright submits that a discount of 10 to 12 months should have been given for time spent on EM bail.  This would have resulted in an end sentence of between five and seven months’ imprisonment, which would allow the Court to consider an alternative to imprisonment or home detention, such as supervision.

Crown’s position

[25]     The Crown opposes this appeal and submits the discount given by the Judge, of five months for time spent on EM bail, was entirely within range of the Judge’s discretion.  Further, the Crown argues there was no error, the overall sentence placed on Mr Huata was lenient in the circumstances and should not be disturbed on appeal.

Relevant law

[26]     Section 9(2)(h) of the Sentencing Act makes it mandatory for a Judge to consider time spent on EM bail at sentencing. In taking into account that the offender spent time on EM bail, s 9(3A) outlines a number of factors the court must consider:

(a)       the  period  of  time  that  the  offender  spent  on  bail  with  an  EM

condition; and

(b)      the relative restrictiveness of the EM condition, particularly the frequency and duration of the offender’s authorised absences from the electronic monitoring address; and

(c)       the offender’s compliance with the bail conditions during the period of bail with an EM condition; and

(d)      any other relevant matter.

[27]     The Court of Appeal has repeatedly confirmed there is no arithmetical formula that equates time spent on EM bail to a specific sentencing credit and it is a discretionary matter.12   What  is  required  is  an  evaluative  assessment  of  all  the circumstances which  are involved, including the degree of restriction on liberty

imposed by the bail conditions compared with that involved in a prison sentence.13

12     Rangi, above n 10, at [10]; Keown v R [2010] NZCA 492 at [12]; White v R [2017] NZCA 322 at

[63]; and Chea v R [2016] NZCA 207 at [110].

13     Keown, above n 12, at [12].

[28]     A range of discounts given for time spent on EM bail are evident from the

Court of Appeal cases provided by the parties:

(a)      in R (CA528/2016) v R, the Court considered a discount of four to six months (between 30 to 50 per cent) was appropriate for 12 months spent on EM bail given the very restrictive conditions (including a 24-hour curfew) and the appellant’s compliance with its terms;14

(b)in Parata v R, the Court held a four month discount (40 per cent) for 10 months spent on EM bail with a 24-hour curfew was not inadequate and noted that time spent on EM bail is not equivalent to pre-custodial remand;15

(c)      in A (CA90/2017) v R, the Court upheld a five month discount (45 per cent) for 11 and a half months spent on EM bail under 24-hour curfew, as well as the fact A had no previous convictions, was of good character and had completed relevant courses;16

(d)in White v R, the Court noted that a discount of more than five months (33 per cent) for 15 months spent on EM bail would have been open to the sentencing judge, however, the Court was unable to say the end sentence was manifestly excessive and not all of the time was spent on the most restrictive terms;17 and

(e)      in Chea v R, the Court held a discount of four months (31 per cent) was appropriate for 13 months spent on EM bail, on the basis that a 24-hour

curfew had been imposed.18

14     R (CA528/2016), above n 6, at [14].

15     Parata v R [2017] NZCA 48 at [10]–[15].

16     A (CA90/2017) v R [2017] NZCA 278.

17     White, above n 12, at [63].

18     Chea, above n 12, at [109]–[111].

Discussion

[29]     It is a matter of judicial discretion as to what discount is applied and there is no arithmetical formula to be applied. Time spent on EM bail is not equivalent to pre- sentence custodial remand.19

[30]     In light of the above Court of Appeal authorities imposing discounts for time spent on EM bail, ranging from 30 to 50 per cent of the actual time spent on EM bail, it cannot be said the discount applied by Judge Cathcart was in error.   While an additional month or two discount may have been open to the Judge, the five month discount (or 33 per cent of the time served on EM bail) was clearly within the available range upheld by the Court of Appeal. I consider a discount of five months to reflect the 15 months spent on EM bail, with 24-hour curfew, was appropriate.

[31]     I accept the Crown’s submission that no exceptional circumstances existed in Mr Huata’s case, such that a greater discount should have been given.  Those circumstances here are:

(a)       EM bail and its inherently restrictive conditions were appropriate given

Mr Huata’s history of offending while on bail;

(b)the restrictive conditions faced were not so exceptional as to depart from the usual approach to discounts given;

(c)      Mr  Huata  should  not  receive  a  further  discount  because  he  was prevented from seeing his family and friends who are gang members as this is a direct consequence of the fact that he too was a patched member at the time of the offending; and

(d)in any event, Mr Huata received a generous discount to enable his sentence to be converted from 16 months’ imprisonment to five months’

home detention.

19     Parata, above n 15, at [10]–[14].

[32]     I also accept the Crown’s submission that a sentence of imprisonment is commonly imposed for offending such as this.20  I consider the Judge took an approach to sentencing that adequately reflected Mr Huata’s personal circumstances, including his time spent in pre-trial custody, as well as his prospects of rehabilitation.21

[33]     I acknowledge that the conditions imposed upon Mr Huata during the period spent on EM bail were restrictive, particularly being under 24-hour curfew with very few absences.  However, these are not unusual conditions placed on those under EM bail.

[34]     Finally, the overall sentence imposed by Judge Cathcart was not manifestly excessive  and  nor  was  the  Judge  in  error.    The  Judge  specifically  considered

Mr Huata’s  rehabilitative  prospects  and  personal  circumstances  both  in  making reductions for mitigating factors and in determining that a sentence of home detention was appropriate. Although Mr Huata’s offending was by no means at the serious end for offending of this type, removing evidence from the scene in an attempt to pervert the course of justice, escaping from custody and the intimidation of the lone police

officer, warrants the sentence of five months’ home detention given by the Judge.

Crown Solicitors: Elvidges

Cull J

20     The Crown points to a number of cases where sentences of imprisonment have been imposed for charges of attempting to pervert the course of justice, specifically for destroying evidence, including R v Spratt [2007] 3 NZLR 810; R v Jones [2014] NZHC 2578.

21     Discounts given for time spent in pre-sentence custody should not reflect a “one-for-one” discount but rather an overall evaluative approach: see Kidman v R [2011] NZCA 62 at [16].