R v Haerewa

[2025] NZHC 920

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2023-004-8430 [2025] NZHC 920

THE KING

v

KALEB QUEST HAEREWA

Hearing:                   11 April 2025 Appearances:       D P Coulson for the Crown

C A Harold for the Defendant

Judgment:                11 April 2025

SENTENCING NOTES OF HARVEY J

Solicitors:

Crown Solicitor, Tauranga

Catherine Harold Law, Tauranga

R v HAEREWA [2025] NZHC 920 [11 April 2025]

Introduction

[1]                 Kaleb Quest Haerewa, you appear for sentencing today on one charge of conspiracy to supply cocaine,1 one charge of burglary2 and one charge of possession of MDMA for supply.3

[2]                 You pleaded guilty to these charges following a sentence indication provided by Moore J on 17 October 2024.4 He indicated an overall starting point of four and a half years’ imprisonment and a reduction of 25 per cent for your guilty pleas. He considered that any discount for youth and time spent on electronically monitored (or EM) bail was best left for the sentencing judge. While not being bound by the sentencing indication, it is helpful in assessing your offending and in deciding the appropriate sentence.5

[3]                 A pre-sentence report dated 21 February 2025 has now been filed, along with an Alcohol and Other Drugs report from March 2025. Your counsel, Ms Harold, submitted that these reports confirmed that further reductions are justified for your personal circumstances, including:

(a)the contribution your background had on your offending;

(b)your relative youth and rehabilitative prospects;

(c)the impact incarceration would have on your tamariki and partner; and

(d)your time spent on EM bail.

[4]                 The Crown largely relied on their submissions from the sentencing indication hearing but otherwise broadly agreed with Ms Harold’s submissions, albeit arguing that the applicable reductions should be slightly lesser. Mr Coulson also made the point that whatever sentence was given, it must involve imprisonment.

1      Misuse of Drugs Act 1975, s 6(1)(c) and (2A)(a). Maximum penalty: 14 years’ imprisonment.

2      Crimes Act 1961, ss 231(1)(a) and 66. Maximum penalty: 10 years’ imprisonment.

3      Misuse of Drugs Act 1975, s 6(1)(f) and (2)(b). Maximum penalty: 14 years’ imprisonment.

4      R v Haerewa [2024] NZHC 3038.

5      Criminal Procedure Act 2011, s 116(3).

[5]                 This sentence will be in three parts. First, I will outline the facts of your offending. Second, I will talk about your personal circumstances. Third, I will fix your sentence.

The offending

[6]Moore J summarised the facts in his indication of 17 October 2024:

Conspiracy to supply cocaine.

[11]              The charge of conspiring to supply cocaine arises out of communications which [you] had with [your] co-defendant, Mr Enoka, in September 2023.

[12]              On 3 September 2023, [you] approached Mr Enoka asking if he still had ounces of “Charlie” – a common term used for cocaine. [You] advised Mr Enoka that [you] had a buyer for 10 oz of cocaine. Mr Enoka advised that he could supply this quantity for $80,000 but that he would have to see “papers” – that is, cash – first.

[13]              [You both] reached an agreement in which [you] informed his buyer that the 10 oz could be purchased for $90,000, factoring in a $10,000 premium that [you] would share evenly between [you both].

[14]              On 5 September 2023, [you] sent Mr Enoka a photo showing nine large bundles of cash and a handwritten note that set out that day’s date. [You] also confirmed with him that the buyer had agreed to $90,000, as [you] had planned.

[15]              That same day, Mr Enoka shared news of [your] buyer to someone called “Sheisty”. He shared the photo of cash and said “that’s the pic from the guys that want 10”. Sheisty responded with an image of a “brick” of cocaine, commenting that it had been untouched.

[16]              A meeting was then agreed to and set for 3pm the following day – 6 September 2023 – at a public location.

[17]              The summary of facts is silent on what happened after that. Given the charge, it is assumed that the agreement was not consummated for whatever reason.

Burglary and possession of MDMA for supply

[18]              The remaining charges of burglary and possession of MDMA for supply arise out of events on 21 August 2023 when [you] entered the yard of a dealership in Greenlane in order to break into a Peugeot van.

[19]              The van had been imported into New Zealand from France on 7 July 2023. From a conversation between [your] co-defendants it seems that 24 kilograms of the drug was meant to be secreted inside it.

[20]              The plan to uplift the MDMA was organised by [your] co-defendant, Mr Himone. [You], Mr Enoka, Mr Himone and an unidentified person called “LilBaby” were in a text message group chat labelled “Akl MD Pull”.

[21]              At around 9pm on the evening of 21 August 2023, Mr Himone instructed Mr Enoka that the latter was to be in charge of the extraction operation that evening. However, Mr Himone also continued to direct activities such as by telling Mr Enoka what time to leave to undertake the burglary and by instructing Ms Bhamji (another co-defendant and the getaway driver) to drive safely.

[22]              At approximately 11:50pm that evening, Ms Bhamji drove [you] and Mr Enoka past the Peugeot dealership several times before parking on nearby Woodbine Avenue. [You] and Mr Enoka emerged from Woodbine Avenue dressed in black. One [of you] was carrying a large black bag. [You] walked along Great South Road before entering the dealership yard.

[23]              Thirteen minutes later [you two] returned to the vehicle in Woodside Avenue. Ms Bhamji turned onto Great South Road and drove south. At 12:14am, [you] returned to the dealership where [you were] dropped off. [You were] carrying a large black bag. [You] entered the dealership’s yard again while [your] co-defendants waited in the vehicle nearby.

[24]              Nine minutes later, at 12:23am, [you] ran back to the waiting vehicle. [You were] still carrying the large black bag. [You] got in and they drove north along Great South Road. Five minutes later, the vehicle returned and [you] and Mr Enoka were dropped off.

[25]              It would appear from the summary that when either or both [you] and Mr Enoka entered the dealership yard, Mr Himone instructed [you] to “go live” on the group video chat while unpacking MDMA from the van. The unidentified fourth member of the group – Lilbaby – stated that there was an Apple Air Tag in the vehicle and that the MDMA to be uplifted was 24kgs.

[26]              At 12:29am, just four minutes later, Mr Himone told their group chat “Uso they’re going into the van now”, which was consistent with the CCTV footage.

[27]              As a consequence of their efforts 3kgs of MDMA was uplifted from the van. What happened to the balance of the drugs referred to by Lilbaby is not stated.

[28]              The following morning, at 11:20am, Mr Himone contacted Mr Enoka to clarify matters. He requested a photo of the 3kgs of MDMA that had been uplifted and queried whether he and [you] had “ripped them off” by entering the van prior to the intended burglary and hiding some of the MDMA. It is assumed this was a reference to the difference between the expected 24 kgs and the 3 kgs actually removed.

[29]              That same day, a scene examination was conducted by Police. A small amount of MDMA was located inside the van as was an Apple Air Tag. Blood, later linked to [you], was found on some of the damaged internal panelling.

Approach to sentencing

[7]                 Deciding on your sentence involves two steps. First, I must set the appropriate starting point while taking account of any aggravating or mitigating factors of the offending. Second, I must adjust that starting point to consider any aggravating or mitigating factors personal to you, and to acknowledge your guilty pleas. Some of these steps have already occurred in the sentencing indication from 17 October 2024.

[8]                 I must have regard to the purposes and principles of sentencing.6 Important principles include holding you accountable for harm, promoting a sense of responsibility, denunciation of your conduct, deterrence for you and other persons from committing similar offending, protection of the community, and assisting your rehabilitation and reintegration.

[9]                 I must take account of the gravity of your offending, including your degree of culpability, the seriousness of the offending in comparison with other types of offending, and the general desirability of consistency with appropriate sentencing levels. The law also requires that the Court must impose the least restrictive outcome that is appropriate in the circumstances, in accordance with the hierarchy of sentences and orders. The Court must consider any of your particular circumstances that would mean that a sentence that would otherwise be appropriate, would be disproportionately severe. I must also consider your personal, whānau, community and cultural background in imposing a sentence with a rehabilitative purpose.

Starting point

[10]               Moore J suggested four years and six months’ imprisonment, consisting of a three-year starting point for the charge of possession of MDMA for supply; a six- month uplift for the burglary charge; and a one-year uplift for the conspiracy to supply cocaine charge. In addition, Moore J considered that you were the “muscle” in the operation — not the driving force behind it. Further, while there was evidence that 24 kgs were expected to be seized, you were charged with possession of three kgs. Having regard to similar cases for MDMA offending, and your role being on the cusp

6      Sentencing Act 2002, ss 7 and 8.

of lesser to significant as set out in Berkland v R, Moore J considered a starting point of three years’ imprisonment was appropriate.7

[11]             Regarding the burglary charge, Moore J noted that the offending was premeditated and carried out on the instruction and with the assistance of others. On the other hand, the burglary was of a commercial premises at night when there was a limited chance of encountering others. There was also no entry into buildings. Considering the burglary to be less serious than in Lenihan v R,8 and noting its connection to the possession charge and the need to avoid double counting, Moore J indicated an uplift of six months’ imprisonment was appropriate.

[12]             On the conspiracy charge, Moore J placed your offending in band three of Zhang v R and made the appropriate adjustment for cocaine offending.9 He considered that your role in the offending sat at the cusp of “significant” and “lesser”, you being both the instigator and merely a middleman for the planned sale. You approached  Mr Enoka, but ultimately it was he who had the means of supplying the cocaine and, in the scheme of things, you stood to make little gain. Moore J acknowledged that the plan was very close to fruition. He concluded that, taking the totality principle into account, a one-year uplift was justified.

[13]             Having considered Moore J’s findings and reasoning, I agree that the overall starting point should be four years and six months’ imprisonment.

[14]             However, at the hearing Mr Coulson raised the issue that your offending was committed while on bail and accordingly submitted that an additional uplift of three months was appropriate. Ms Harold contended that an uplift of only two months was appropriate. On this issue, I agree with Ms Harold and add an uplift of two months for offending while on bail. This results in a total starting point of four years and eight months’ imprisonment.

7      Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [71].

8      Lenihan v R [2020] NZHC 2543.

9      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

Aggravating and mitigating personal factors

Personal background

[15]             I now consider your personal background, drawing upon your pre-sentence and AOD reports, and the statements made by your parents and partner today.

[16]               Mr Haerewa, you are 24 years old and are of Ngāti Kahungunu and Samoan descent. You report being disconnected from your culture as you were raised in Australia and spent the majority of your life in Melbourne, having only returned to New Zealand as a 501 deportee in 2018. Community Corrections referred you to a tikanga Māori programme in June 2024 but due to ill health, you left it after two days.

[17]             You report experiencing an unstable and occasionally chaotic childhood. You explained that your father was a member of the Mongrel Mob, and that violence and drugs were normal in your household. When you were four years old, your mother moved to Australia in an attempt to leave your father, and she took you and your siblings with her. However, your father followed and they resumed their relationship. You witnessed your father physically abuse your mother. Your mother left again when you were 12 years old but she did not take you or your siblings with her. You told the report writers that you felt abandoned. Your family struggled financially after she left, and you began offending and stopped attending school regularly.

[18]             At the start of year eight, you were sent to a Youth Justice Facility where you spent four and a half years. You enjoyed your time there but, after being involved in a riot, you were deported back here, where you struggled to acclimatise to a new country and a new life. You moved to Auckland in 2019 and worked as a personal trainer and for a catering company. In 2023 you also completed a barbering course.

[19]             The AOD report states that you were exposed to methamphetamine use through your father, but that you did not use any drugs until the age of 14. From this point on, you began smoking cigarettes and using cannabis, alcohol and MDMA. You developed a severe cannabis use disorder and, at the age of 15, started using cocaine. When you were 16, you began using methamphetamine, but you say you no longer use it due to the hallucinations it gives you.

[20]                 The report sets out that the 18 months before your arrest on your present charges was your heaviest period of cocaine and MDMA use, and that you also drank alcohol every day and used Xanax. The report concluded that at the time of the offending you had severe stimulant and cannabis use disorders, and a moderate alcohol use disorder. However, according to the report, you have been abstinent from all substances, including alcohol, since March 2024 — which has been supported by your incarceration, bail conditions and you becoming a parent.10 It is said that therefore you have met the threshold for sustained remission. You confirmed with the report writers that your offending was for financial gain. However, you noted that you were homeless then and would use the money freely on, in particular, drugs such as MDMA.

[21]             You now live with your partner who you met in 2023. Although not legally married, you consider yourselves spouses in the context of your Muslim faith. You have a four-month-old son and are expecting a second child in August. You told the report writers that you need to give your son a life and ensure he is not involved in any criminal activity. You also told the report writer that you try to take pressure off your wife by bathing your son and looking after him during the night.

[22]             You have two older brothers and two half-brothers. Your older brothers were also involved in unrelated criminal offending. You have also recently reconnected with your father and are reconnecting with your mother. Your father was incarcerated for eight years in Australia and was released in September 2024, returning to New Zealand in the same week that your son was born.

[23]             In 2022, you converted to Islam and you attend the Avondale Islamic Centre regularly. You told the report writer that being engaged with Islam changed your perception on life and has helped you engage with pro-social people. It has made you feel uplifted and supported. The AOD report stated that your most significant lifestyle change has been your conversion to Islam. Both you and your partner describe your faith as a strong protective factor in your change of lifestyle and as parents.

10 The AOD report actually stated “March 2023”. However, I infer it must have meant March 2024 given that the offending (during which the report stated Mr Haerewa was under the influence of drugs and alcohol) occurred in late 2023.

[24]             The AOD report concluded that you remain vulnerable and that you have not built the resilience or gained the knowledge of how to prevent any relapse if you were to face an adverse event. Until now, you have been protected by your bail conditions and the stability forged in your new role as a father and spouse. However, your confidence has not been tested in terms of a normal world experience — such as having to work and support the family, having no restrictions on you, and having to cope with the stressors young families can face. The report suggests you would benefit from programmes if imprisoned, or mandated counselling if in the community. It states that although you are more open to consider counselling following your interview with the report writers, it is unlikely you would engage in treatment if it was left solely to you to facilitate and maintain — especially with another child on the way.

[25]             The pre-sentence report noted your history of, largely traffic-related, offending and the fact that you have active Police charges against you before the Auckland District Court. The report writer confirmed that you have never been imprisoned but have been subjected to driving disqualifications, fines and community-based sentences

— for which your compliance was assessed as satisfactory.

[26]             The report stated that although you recognised the impacts the offending would have on your son if you could no longer be present in his life, you redirected blame to those using drugs in the community. You said you were not a threat to the community anymore, that you addressed your need for change and that you have the motivation and drive to succeed. The report writer asked if committing crime was beneficial and you said: "depends where you have come from. If you struggle and not have a lot, yes it was beneficial. If you ask me now as a father, no". You were asked if you considered there was a pattern to your offending, you said: "I fall back into drugs, you fall back into the same mentality".

[27]             The pre-sentence report assessed your offending-related risk factors as being antisocial peers, your attitudes towards offending, your sense of self-entitlement, substance abuse and a lack of consequential thinking while under financial hardship. It identified the underlying factors of your offending as being poor problem-solving skills, a lack of parental support in your youth, the influence of antisocial peers, and your motivation for financial gain. It stated that your propensity to commit more

serious crime has increased, and that your connection with negative peers and poor problem-solving skills places the community and yourself at risk. In particular, it noted that your lack of response to pro-social advice suggested that you are yet to truly address your rehabilitative needs, and that this is a significant concern.

[28]             The pre-sentence report writer states that your current charges display an evident escalation in your offending and risk to the community — these being your first drug charges. The report assessed you as being at high risk of re-offending and harm, noting your connections to unknown gangs and or criminal organisations. It also stated that you remain untreated for your offending related risk factors, noting that Community Corrections records show you have not completed any rehabilitation programmes. It recommended that you would benefit from completing an intensive rehabilitation programme targeted to your rehabilitative needs.

[29]             On the other hand, Community Corrections records indicate that in 2023 you completed the CADS “Getting Started 8 Programme”. However, Hope House confirmed that you did not complete a residential rehabilitation programme and only attended a day programme on 10 April 2024. You informed the report writer that you did not complete the programme as there were too many rules and it made you feel like you were falling back into a negative frame of mind. Finally, given your breach and non-compliance with your EM bail conditions, the pre-sentence report did not recommend an EM sentence.

[30]             Taking your offending and personal background into account, I turn now to consider your sentence.

Contributory background factors

[31]             Ms Harold submitted that a reduction of 15 per cent is justified by your disadvantaged childhood and stimulant use disorder which she contended were relevant contributory factors to your offending. Counsel referred to the reports that have been filed in support of her arguments.

[32]             Mr Coulson contended that the reports confirm that you experienced childhood deprivation, most significantly from the point your mother left when you were 12 years

old. Counsel argued that you turned to criminal offending while in “survival mode” to obtain the necessities in life. He submitted that this deprivation can be shown as causative of this offending to a degree but  that it  was not the operative cause.      Mr Coulson submitted that a reduction of around 10 per cent for this is appropriate.

[33]             Both counsel agreed that a reduction for your personal background is appropriate. I accept that your background and substance use issues were contributory factors to your offending. The question, then, is the appropriate amount of the reduction? Neither counsel referred me to comparable cases on this issue. However, the Crown’s submissions focused on the deprivation you experienced growing up rather than your substance abuse issues. I consider that your substance abuse issues during the time of your offending were a contributory factor in addition to your challenging upbringing. I consider that a 10 per cent reduction is justified.

Relative youth and rehabilitative prospects, and the impact of incarceration on your tamariki and wife

[34]             Ms Harold noted that you were only 22 years old at the time of the offending, and that your role as the “muscle” for others has the hallmarks of a youthful offender. Counsel submitted that you have experienced a life-changing moment with the arrival of your first child in September 2024, and that your second child is due later this year.

[35]             She also referred to the insight you displayed when asked by the report writer whether committing crime was beneficial. Counsel pointed to your completion of courses such as personal training and barbering, and your bail variations for planting trees and reinstating your driver’s licence, as being other evidence of your rehabilitative prospects. Ms Harold argued that your sentence should recognise your potential to lead a law-abiding life for yourself and your whānau.

[36]             Counsel submitted that an allowance should be made for the impact of incarceration on your tamariki and wife, following cases recognising the effect of imprisonment on an offender’s children.11    Ms Harold highlighted that you want to

11     Philip v R [2022] NZSC 149, [2022] 1 NZLR 571 at [47]–[58]; Sweeney v R [2023] NZCA 417 at

[21]–[27] and [32]; Whaanga v R [2024] NZCA 29 at [32]; and Honeybun v New Zealand Police
[2022] NZHC 3445 at [10].

break the cycle of incarceration you grew up in and, instead, be a present father for your children. She argued that a 15 per cent reduction is appropriate to recognise your youth, rehabilitative prospects and the impact of incarceration on your whānau.

[37]             Mr Coulson accepted that your youth at the time of offending can be considered at sentencing. He submitted that your description of offending for financial gain, and the fact that you served as the “muscle” rather than the instigator, indicated you may have been more susceptible to outside influences and may have acted impulsively. Counsel contended a reduction of 10 per cent would be warranted for your youth and rehabilitative prospects. On the impact of incarceration on your tamariki or wife, Mr Coulson submitted that a reduction of no more than five percent was appropriate.

[38]             I agree that a 10 per cent reduction is appropriate to recognise your youth and rehabilitative prospects for the reasons outlined by counsel. I also note the positive events that have recently occurred in your life including the birth of your son. These events, and your steps to engage with them, support your rehabilitative potential. A further five per cent reduction is justified in recognition of the impact of incarceration on your tamariki. Given your background, I know you appreciate the importance of having a present and loving parent. While you are not your son’s sole caregiver, you are an important and positive presence in his life.

Time spent on restrictive bail conditions

[39]             You have spent one year on restrictive EM bail conditions. You have one recorded breach for an incident where you arrived home late from an Islamic celebration of your son’s birth. You also have had several issues of non-compliance: one of which appears to relate to an unapproved absence during for which you had, in fact, been granted a bail variation to attend court and sign a bail variation which you carried out. In relation to the failure to charge issues, the Department of Corrections organised for a check of whether your equipment was faulty.

[40]             Ms Harold submitted that a reduction of 10 per cent, or approximately five months, is appropriate to take account of your time served on EM bail.

[41]             Mr Coulson acknowledged that reductions generally range from 30 to 50 per cent of time spent on EM bail. Given the period spent on EM bail, the level of freedom afforded to your movements (such as bail variations allowing you to attend the birth of your son, attend the Mosque late at night for Ramadan, and undertake employment and training regularly) as well as your compliance issues, counsel submitted a reduction of only four months is warranted.

[42]             As acknowledged by Mr Coulson, your non-compliance with EM bail has largely been explained and appears to have been relatively innocent on the evidence. On the other hand, the bail variations suggest your conditions of EM bail were not as restrictive as they otherwise might have been, and this reduces the need for a reduction at sentencing. I am satisfied a reduction of four months is correct.

[43]In summary, the following reductions are appropriate:

(a)a 25 per cent reduction for your guilty pleas;

(b)a 10 per cent reduction for your personal background;

(c)a 10 percent reduction for your youth and rehabilitative prospects;

(d)a five percent reduction for the impact of incarceration on your tamariki; and

(e)a four-month reduction for your time spent on EM bail.

[44]             Applying these reductions to your starting point of four years and eight months’ imprisonment results in an end sentence of two years’ imprisonment.

[45]             For completeness, regarding home detention, Mr Coulson submitted that, given the seriousness of the offending and the need for deterrence, the end sentence should be one of imprisonment. The pre-sentence report writer recommended a sentence of imprisonment and given your non-compliance with EM bail it did not recommend an EM sentence. The AOD recommended counselling or other forms of rehabilitative programmes but did not otherwise make a recommendation on the final sentence. Your counsel has sought home detention for the reasons outlined in her submissions.

[46]             An additional pre-sentence report was obtained to assess the suitability of your proposed address for home detention. The address was assessed as technically feasible and the occupants and landlord provided their consent. However, the report writer highlighted that your partner, who would be residing at the address, was a co-offender in the burglary (namely, the driver). This fact poses some additional risks when considering the likelihood of you reoffending if granted home detention and when considering the level of pro-social support available at the address.

[47]             In my assessment, taking account of your role in the offending, your personal circumstances and the objectives of sentencing, I consider that a sentence of imprisonment is appropriate. Nonetheless, while I have decided not to grant you home detention today Mr Haerewa, I strongly encourage you to continue to take your role as a father seriously. If you behave well in prison, continue to take up opportunities for your rehabilitation and similar programmes, then you should be able to return to your family and your tamariki on parole. Your future, and that of your tamariki, depends on the steps you take from here.

Decision

[48]Kaleb Quest Haerewa, would you please stand.

[49]             I sentence you to two years’ imprisonment in total on all the charges.12 Please stand down.

Harvey J

12 That sentence is made up as follows: 24 months’ imprisonment on the charge of possession of MDMA for supply; six months’ imprisonment on the charge of burglary, to be served concurrently; and one year imprisonment on the charge of conspiracy to supply cocaine, to be served concurrently.