Stephen James Henare v The Queen - [2020] NZSC 96

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 44/2020
[2020] NZSC 96

BETWEEN	STEPHEN JAMES HENARE Applicant
AND	THE QUEEN Respondent

Court:	O’Regan, Ellen France and Williams JJ
Counsel:	J N Bioletti for Applicant B F Fenton for Respondent
Judgment:	16 September 2020

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

___________________________________________________________________

REASONS

Introduction

Four days into a jury trial in the High Court, the applicant, Mr Henare, pleaded guilty to five representative charges of theft by a person in a special relationship, and one charge of wilfully attempting to pervert the course of justice. Muir J sentenced Mr Henare to a term of five years and two months’ imprisonment.
Mr Henare applies for leave to appeal the Court of Appeal’s dismissal of his appeal against sentence. His sole intended ground of appeal is that the effect of whakamā (a form of cultural shame for Māori) should have been recognised as a personal mitigating factor in his sentencing.

Background

Mr Henare and his sister, Ms Dixon, were trustees of the Pārengarenga 3G Trust at the time of the offending. The Trust was established in 1987 by order of the Māori Land Court as a land utilisation trust under s 438 of the Māori Affairs Act 1953.[1] The Trust owns approximately 511 ha of Māori freehold land located on the Aupouri Peninsula south of Pārengarenga harbour. The land is utilised primarily as a plantation forestry block on behalf of its 402 beneficial owners. When the Trust was created, the Māori Land Court appointed the Māori Trustee as responsible Trustee. In 2008, anticipating the end of the first crop rotation since the Trust’s establishment and the departure of the Māori Trustee, the owners planned to take back control. They held an election and seven new trustees were chosen to take over from the Māori Trustee. They included Mr Henare, Ms Dixon and two of their close family members. Following protracted litigation in the Māori Land Court, led by Mr Henare, the appointments were affirmed by order of that Court in June 2012.
[1]Now Part 12 of Te Ture Whenua Māori Act 1993.
In August 2012, the Māori Trustee transferred to the Trust accumulated funds held on account in the sum of $1,096,819.34. The funds were paid into five accounts set up by Mr Henare and Ms Dixon in the name of the Trust. A further $54,480 was added to the accounts in August 2013 after the sale of the Trust’s carbon credits.
Between 8 August 2012 and 31 July 2013, Mr Henare either initiated or approved 125 unauthorised payments from the Trust accounts, totalling $1,083,893.30; some to his personal or family trust accounts, and some to Ms Dixon’s personal or family trust accounts. One payment was made to the Legacy Bear Company Ltd, in which Mr Henare’s interests had subscribed for shares. The payments to Mr Henare and Ms Dixon were applied to living expenses and to fund Mr Henare’s gambling addiction.
During…

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 Stephen James Henare v The Queen

Details

AGLC: Stephen James Henare v The Queen [2020] NZSC 96
Case: [2020] NZSC 96
Decision Date: 16 September 2020

CaseChat Overview and Summary

The Supreme Court of New Zealand heard an application from Stephen James Henare, who sought leave to appeal against the Court of Appeal's dismissal of his appeal against sentence. Henare, who pleaded guilty to multiple charges of theft and perverting the course of justice, was sentenced to five years and two months' imprisonment. Henare's application for leave to appeal centred on the argument that the sentencing judge should have recognised the effect of whakamā, a form of cultural shame for Māori, as a personal mitigating factor. The Court of Appeal had dismissed Henare's appeal, stating that it did not have sufficient guidance on the meaning of whakamā in the context of this case, or what recognition could be properly given in Henare's circumstances.

The Supreme Court considered whether the Court of Appeal's decision to dismiss Henare's appeal was correct. The Court noted that Henare had submitted that the sentencing judge had been provided with a s 27 report, which contained a discussion of whakamā, and that the judge had considered this in the sentencing. However, the Court concluded that there was little evidence that Henare himself was afflicted with whakamā. The Court also noted that the sentencing judge had rejected the submission that Henare should receive a discount for remorse, finding instead that Henare had a sense of entitlement to the funds he had stolen. As such, Henare was unable to demonstrate any evidential basis for the submission that he was in a state of whakamā, upon which his proposed appeal was founded.

The Supreme Court dismissed Henare's application for leave to appeal, finding that the Court of Appeal's decision to dismiss Henare's appeal was correct. The Court noted that the relevance and potential effect of whakamā in sentencing was a matter of general or public importance, but that the issue did not properly arise on the facts of this case. The Court further found that even if whakamā was relevant, it was not clear that Henare was himself afflicted with whakamā to the extent that it should have been recognised as a personal mitigating factor in his sentencing. As such, the Court dismissed Henare's application for leave to appeal.

The Supreme Court did not make any further orders in relation to the case.

Orders