R v Henare - [2019] NZHC 2126

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-004-4242

[2019] NZHC 2126

THE CROWN

v

STEPHEN JAMES HENARE

Hearing: 28 August 2019

Appearances:

M Heron QC and S O’Brien for the Crown J Bioletti for the Defendant

Sentence:

28 August 2019

SENTENCING NOTES OF MUIR J

Counsel:
M Heron QC, Barrister, Auckland J Bioletti, Barrister, Mt Albert

Solicitors:
Serious Fraud Office, Auckland (K Bannister and S O’Brien)

R v HENARE [2019] NZHC 2126 [28 August 2019]

[1] Mr Henare appears today for sentencing, having entered guilty pleas to six charges four days into his May 2019 trial.

[2]The charges comprise:

(a)Five representative counts of theft by person in a special relationship;1 and

(b)One count of wilfully attempting to pervert the course of justice.2

[3] The five representative counts of theft by person in a special relationship relate to:

(a)a total of $601,044.00 transferred to the Stephen Henry Whanau Trust bank account between 8 August 2012 and 27 April 2013;

(b)a total of $197,017.00 transferred to Mr Henare’s personal bank account between 14 May 2013 and 20 June 2013;

(c)a total of $74,431.65 transferred to his sister Mrs Dixon’s personal bank account between 8 August 2012 and 8 September 2012 ($55,000 of which was subsequently transferred to Mr Henare);

(d)a total of $111,404,65 transferred to the Patrick and Margaret Dixon Whanau Trust bank account;

(e)$100,00 transferred to the Legacy Bear Company Limited (LBCL) on or about 23 October 2012.

[4] The count of wilfully attempting to pervert the course of justice relates to knowingly providing false information to the Maori Land Court regarding the financial position of the Parengarenga 3G Trust (P3G Trust), of which both Mr Henare and Mrs Dixon were trustees.

1 Crimes Act 1961, s 220(1)(b). Maximum penalty 7 years’ imprisonment.
2 Crimes Act 1961, s 117(e). Maximum penalty 7 years’ imprisonment.

Background

[5] The following summary of facts is informed by the statement of facts and, to the extent not referenced in that document, reflects my findings based on the three and a half days of evidence heard by me.

[6] The P3G Trust, as I will refer to it, is a Maori land trust with approximately 400 beneficial owners. Its principal asset is a 511.83 hectare block of forestry land located in the Taitokerau District in the Far North of New Zealand.

[7] All counts relate to Mr Henare’s conduct as a responsible trustee of the P3G Trust. In June 2012, the assets of the Trust vested in Mr Henare, Mrs Dixon and five other trustees (one of whom was Mr Henare’s brother and another his daughter). Previously they had been under the administration of the Maori Trustee. The change in trusteeship came about as a result of protracted legal proceedings, advanced primarily by Mr Henare. The governing document for the Trust was the Trust Order dated 1 September 1987 (Trust Order).

[8] In August 2012, the Maori Trustee transferred $1,096,819.34 into five accounts set up…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Henare

Details

AGLC: R v Henare [2019] NZHC 2126
Case: [2019] NZHC 2126
Decision Date: 28 August 2019

CaseChat Overview and Summary

Stephen James Henare was convicted on six counts of theft by a person in a special relationship and one count of attempting to pervert the course of justice. The charges related to the misappropriation of approximately $1.1 million from the Parengarenga 3G Trust (P3G Trust) of which Henare and his sister were trustees. Henare initiated or was the authoriser or secondary authoriser of 125 unauthorised payments from the P3G accounts, amounting in total to $1,083,893.30. The offending spanned over 12 months and involved 125 separate transactions. The primary aggravating features of the offending were the extent of loss and harm resulting from the offence, planning and premeditation, abuse of position of trust or authority, scale of the offending, and personal gain. The Court found no mitigating features. The Court adopted an orthodox approach to sentencing, setting a starting point informed by the aggravating and mitigating features of the offending and sentences imposed in similar cases. The Court found no factors personal to Henare that required an adjustment to the six-year sentence. The Court allowed a discount of 10 per cent on account of Henare’s guilty plea. The Court arrived at a final sentence of five years and two months’ imprisonment, to be served with concurrent and cumulative components. The Court did not impose a reparation order. The Court imposed sentences of imprisonment to be served concurrently on the charges of theft by a person in a special relationship and a sentence of 10 months’ imprisonment cumulatively on the charge of attempting to pervert the course of justice, bringing the total period of imprisonment to five years and two months.

Orders