Nathereth Hunter v The King

[2023] NZHC 3396

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2023-463-0059

[2023] NZHC 3396

BETWEEN

NATHERETH HUNTER

Appellant

AND

THE KING

Respondent

Hearing:	23 November 2023 (by VMR)
Appearances:	T T W Ngawhika for Appellant P Patanasiri for Respondent
Judgment:	28 November 2023

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 28 November 2023 at 9.30 am

Registrar/Deputy Registrar

Date: ...................................

Solicitors:           Ngawhika Law, Rotorua

Gordon Pilditch, Rotorua

HUNTER v R [2023] NZHC 3396 [28 November 2023]

Introduction

[1]    The appellant, Mr Hunter, appeals against a sentence of two years and six months’ imprisonment imposed by Judge Geoghegan in the District Court at Rotorua on 2 June 2023.1

[2]    Mr Hunter was for sentence on one charge each of unlawful possession of cannabis, of a firearm, of ammunition, of equipment with intent to manufacture, and two charges of possession of a precursor substance.

[3]    Ms Ngawhika, counsel for Mr Hunter on appeal, submits that the sentence is manifestly excessive. In particular, she submits that the Judge gave insufficient consideration to Mr Hunter’s remorse and prospects of rehabilitation. Ms Ngawhika also seeks leave to adduce a report that has now been obtained pursuant to s 27 of the Sentencing Act 2002 (“Act”) and, if leave is granted, a reduction to reflect the causative contribution of matters outlined in the report to the offending.

[4]    Crown counsel, Mr Patanasiri, opposes the application for leave to adduce the report. He also submits that the Judge did not err in the respects identified, and opposes any reduction in sentence.

Background

[5]    Mr Hunter’s offending arose as part of “Operation Richter”, a police investigation of individuals in the Rotorua area suspected to be involved in the production and supply of methamphetamine in that region. One target of the investigation was a Mr Wineera, a patched member of the Mongrel Mob. In monitoring Mr Wineera’s  communications, it became apparent to the  police that  Mr Hunter knew of Mr Wineera’s involvement in the manufacture and supply of methamphetamine, and was himself involved in those activities at times.

1      R v Hunter [2023] NZDC 11217.

[6]    On 19 October 2022, the police executed a search warrant at the address where Mr Hunter was living, and located:

(a)a pistol;

(b)a magazine for the pistol which held three .22-gauge bullets, and another four bullets in a separate container;

(c)approximately 2,300 rounds of assorted ammunition; and

(d)approximately 2,100 grams of cannabis plant material.

[7]    The police also located equipment and items commonly used in the manufacture of methamphetamine, and which obviously had been so used in this instance. These items included plastic bottles of hydrochloric acid; a 500 gram container of sodium hydroxide; a parr bomb, metal lid and metal condenser; metal tubing; a water pump; a pH meter; two lengths of plastic tubing containing a brown residue; two glass jugs; and a glass baking dish containing a white residue.

Sentencing

[8]    The Judge adopted a starting point of two years and six months’ imprisonment on the methamphetamine related charges and uplifted that starting point by 12 months’ imprisonment for the firearms charges. He discharged Mr Hunter on the possession of cannabis charge.

[9]    The Judge allowed a 25 per cent reduction for Mr Hunter’s guilty pleas, and two months for time spent on EM bail.

[10]This gave an end sentence of two years and six months’ imprisonment.

[11]   No issue is taken with any of this on appeal. The submission on appeal is that additional mitigating factors were or are established and should be recognised.

Submissions on appeal

[12]   As I said above, Ms Ngawhika seeks leave to adduce a report pursuant to s 27 of the Act. The report, prepared by Ms Tara Oakley, is comprehensive and was compiled following interviews with Mr Hunter and his sister, Ms Sara Hona. As it turns out, Ms Hona also swore an affidavit in support of Mr Hunter in the District Court.

[13]   Despite Mr Patanasiri’s objections, I have considered Ms Oakley’s report. It is not “fresh” in the sense it could have been obtained in the District Court but, as the Supreme Court said in Berkland, a s 27 report is an important tool for eliciting background information that may be relevant to sentencing.2

[14]   However, I am bound to say that I cannot reconcile some of what  is in      Ms Oakley’s report with an affidavit Ms Hona swore in favour of Mr Hunter for sentencing in the District Court.

[15]   I am not suggesting that Ms Oakley’s report is inaccurate or that what she has been told is incorrect, but the differences have not been addressed or explained as they should be.

[16]   For instance, in her affidavit in the District Court Ms Hona says that, as children, she and Mr Hunter never witnessed any drugs in  the home growing  up. Ms Oakley’s report is to the effect that their grandmother (with whom Ms Hona and Mr Hunter lived when their mother became very severely mentally unwell) smoked cannabis daily, and that Mr Hunter followed suit at an early age. Although Ms Hona’s affidavit does say that  Mr Hunter did not finish school, Ms Oakley records that     Mr Hunter struggled at school, so much so that he left school once and for all at the very young age of 13, and that he has reading difficulties.

[17]   Of course, the Judge had Ms Hona’s affidavit only and, as the Judge said, from this, it appears Mr Hunter had a good upbringing and that there was nothing to explain

2      Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [174] per Winkelmann CJ, William Young, Glazebrook and Williams JJ.

his offending. In those circumstances, it was not open to the Judge to reduce the sentence to allow for Mr Hunter’s background.

[18]   I do not propose to make any reduction on account of the matters identified in Ms Oakley’s report. First, as I say, in the absence of some explanation, I simply cannot reconcile the information I now have with the information that was before the Judge. Secondly, the manufacture of methamphetamine for supply is serious offending. Methamphetamine causes havoc, and those who manufacture and supply it make money doing so. In this instance the offending is compounded by the firearms offending. The pistol and the huge quantity of ammunition found, and these were directly inside the caravan where Mr Hunter was sleeping, can only mean that there was a risk of serious violence to others. Accordingly, even if there was information warranting a discount for matters in Mr Hunter’s background, it could only be very modest in this case given the gravity of the offending and the danger it presented.

[19]   Given both of these matters, I decline to reduce the sentence for the matters in Ms Oakley’s report.

[20]   Ms Ngawhika also submits that the Judge erred in failing to give sufficient consideration to Mr Hunter’s prospects of rehabilitation, and in declining to allow a reduction for remorse.

[21]   Mr Olphert, who appeared for Mr Hunter in the District Court, sought allowances for each of these mitigating factors but the Judge did not accept his submissions. The Judge said that Mr Hunter did not appear to have any specific rehabilitative needs other than to address the thinking which had led to the offending, and he also noted that there was no remorse apparent in the pre-sentence report. The Judge was correct in this matter. Mr Hunter attempted to distance himself from the substance of the charges, a pointless exercise given the summary of facts to which he had pleaded.

[22]   I am unable to see any error in the approach the Judge took in declining reductions for these matters and given that, am not persuaded that the end sentence imposed was manifestly excessive.

Result

[23]The appeal against sentence is dismissed.

Peters J