Naera v The King
[2023] NZHC 2784
•5 October 2023
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2023-463-15
[2023] NZHC 2784
BETWEEN QUENTON NAERA
Appellant
AND
THE KING
Respondent
Hearing: 4 October 2023 Appearances:
D Hall (on behalf of A Burns) for Appellant T Afoa for Respondent
Judgment:
5 October 2023
JUDGMENT OF LANG J
[on appeal against sentence]
This judgment was delivered by Justice Lang On 5 October 2023 at 12.45 pm
Registrar/Deputy Registrar Date:…………………………
Solicitors/counsel:
Gordon Pilditch, Office of the Crown Solicitor, Rotorua BOP Law Ltd/D Hall, Barrister, Rotorua
NAERA v R [2023] NZHC 2784 [5 October 2023]
[1] Mr Naera pleaded guilty in the District Court to one charge each of being in possession of an offensive weapon, using a document for a pecuniary advantage, unlawfully taking a motor vehicle, driving whilst forbidden, being in possession of a methamphetamine pipe and two charges of theft.
[2] On 19 January 2023, Judge A J S Snell sentenced Mr Naera to two years one month imprisonment on all charges.1 Mr Naera appeals against his sentence. He says the sentence is manifestly excessive because his counsel did not obtain a cultural report that would have identified further mitigating factors that would have reduced the sentence below that imposed by the Judge.
The charges
[3] On 6 June 2022, Mr Naera and his partner were living at a motel in Rotorua. The motel manager went to their unit because another resident had reported hearing a female screaming within the unit. When the motel manager knocked on the door, Mr Naera came to the door and directed vitriolic abuse at the motel manager. As he did so he was holding a baseball bat in a menacing manner. The motel manager immediately left the unit and called the police. Mr Naera was then arrested and released on bail.
[4] Just over three months later, on 22 September 2022, Mr Naera went to a hot pool complex in Rotorua and forced open the door of a storage locker in the male changing rooms. He took several items from the locker including a cellphone, a set of car keys and a wallet. Mr Naera then left the complex and gained access to a Holden motor vehicle using the keys had stolen from the storage locker. He drove away in the vehicle, which had a value of approximately $40,000.
[5] Over the next two hours, Mr Naera drove around Rotorua using credit cards he found in the wallet to purchase several items. He then stole further personal items from the vehicle before locking it and leaving it on the street where it was subsequently discovered by the police.
1 New Zealand Police v Naera [2022] NZDC 756.
[6] On the following day, the police found Mr Naera driving a motor vehicle in Rotorua. When they stopped him, they discovered that he was driving whilst forbidden. When the police looked inside the vehicle he was driving, they could see a methamphetamine pipe.
The sentence
[7] On the lead charge of unlawfully taking a motor vehicle, the Judge selected a starting point of 16 months imprisonment. He then added an uplift of six months to reflect the remaining dishonesty charges. The Judge also applied an uplift of six months to reflect the charge relating to the unlawful possession of the baseball bat that Mr Naera used to threaten the motel manager.
[8] The Judge noted that Mr Naera has an appalling record of dishonesty offending in both New Zealand and Australia. This goes back many years and he has served numerous sentences of imprisonment on them. The Judge applied an uplift of four months to reflect this factor.
[9] From the resulting sentence of two years four months imprisonment, the Judge applied a discount of seven months, or 25 per cent, to reflect guilty pleas. Applying the four-month uplift for prior offending, an end sentence of two years one month imprisonment was reached.
The cultural report
[10] Mr Burns now seeks leave to provide a cultural report he has obtained for Mr Naera. Mr Naera says he raised the possibility of obtaining such a report with counsel who appeared on his behalf in the District Court but she told him there was insufficient time before sentencing to enable a report to be prepared. I grant leave for the report to be adduced in support of the appeal.
[11] The cultural report records that Mr Naera began stealing items at school from an early age. This resulted in him being sent to Australia for two years when he was 11 years of age before returning to Rotorua as a teenager. He was then expelled from two separate schools for bad behaviour and stealing. At this point he discovered a love
for kapa haka and he also began playing rugby league. However, he ceased to be involved in these pro-social activities as he became immersed in a criminal lifestyle. This included the consumption of cannabis on a significant scale from the age of 16 years.
[12] When he was 21 years of age Mr Naera went to live in Australia and he remained there for approximately 22 years. He initially did well in Australia but began offending again after becoming involved in an organisation that distributed drugs. This led to his deportation from Australia in 2015. He stole items from a vehicle shortly after his return to New Zealand and this resulted in him being sent to prison for 17 months in February 2016. Thereafter he has received sentences of imprisonment on four occasions, excluding the present, after being convicted on charges involving allegations of dishonesty.
[13] The report states that Mr Naera’s offending was caused by poor living conditions when he was a child but little detail of this is provided. The report says only that Mr Naera was exposed to drugs, alcohol, parties and theft from as young as he can remember. It also says he was subject to physical and mental abuse at the hands of his father and other family members. This information appears to have come solely from Mr Naera and does not appear to have been confirmed by the family members to whom the report writer spoke.
[14] The report also records that Mr Naera is now motivated to get a good job and rehabilitate himself. I view these observations with considerable scepticism in light of his criminal history to date. I see nothing concrete in the report to suggest that Mr Naera is now determined to alter the course he has taken to date. It seems much more likely that he will continue to offend opportunistically as he did on 22 September 2022.
[15] Reading the cultural report as a whole, I consider it provides little information beyond what was contained in the pre-sentence report that was before the Judge. Further, at 46 years of age, Mr Naera must now be regarded as a prolific and recidivist dishonesty offender. He has certainly had ample opportunity in the past to pursue a
different path if that was his desire. I do not consider the factors identified in the cultural report help to explain the present offending other than in the broadest of terms.
[16] However, I accept that the Judge may well have given Mr Naera a very modest discount if the report had been available when Mr Naera was sentenced. I therefore propose to make an allowance of one month to reflect the possibility that the root causes of his offending may be found in his early family environment. This reduces the sentence to one of 24 months imprisonment.
[17] The Judge ended his remarks by stating that he would not have granted Mr Naera home detention even if the end sentence had been less than two years. I take the same view. Mr Naera needs to understand that he has now reached the point where a sentence of imprisonment is now the only realistic outcome for dishonest offending of the type reflected in the present charges.
Result
[18] The appeal against sentence is allowed. The sentence of two years one month imprisonment imposed on the charge of unlawfully taking the motor vehicle is set aside. In its place I impose a sentence of two years imprisonment. All other sentences remain intact.
Lang J
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