Te Huia v The Queen - [2020] NZCA 647

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA382/2020
[2020] NZCA 647

BETWEEN	BRIAN EDWARD TE HUIA Appellant
AND	THE QUEEN Respondent

Hearing:	11 November 2020
Court:	Brown, Duffy and Nation JJ
Counsel:	G Walsh for Appellant R Thomson for Respondent
Judgment:	15 December 2020 at 10.30 am

JUDGMENT OF THE COURT

A The application for an extension of time to appeal is granted.

B The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Introduction

Following a sentence indication Mr Te Huia pleaded guilty to several charges, primarily for dishonesty offences. He was sentenced in the District Court at Hamilton to five years and nine months’ imprisonment with a 50 per cent minimum period of imprisonment.[1] He appeals against that sentence on two grounds:

(a)the starting point of seven years’ imprisonment was too high; and
(b)insufficient discount was allowed for his personal circumstances.
[1]R v [Te Huia] [2020] NZDC 3141 [District Court sentencing notes].

Mr Te Huia’s appeal was filed over four months out of time. It appears that the delay was primarily attributable to disruption occasioned by the COVID-19 pandemic. The Crown accepts there is no prejudice as a consequence of the delay and does not oppose an extension of time. Accordingly the extension of time to appeal is granted.

Factual background

Mr Te Huia was charged with eight representative charges of burglary. His targets were rest-homes and retirement villages. As the sentencing notes record:[2]
You would walk around the facilities looking for residents who may have been away from their home. You tried to fit into the environment by wearing clothing that was appropriate. You held a clipboard or paper in your hand so it looked as if you had a right to be there. Once you had identified a target you then broke into their home and you would take items of value, jewellery, purses, wallets and credit cards …
[2]At [2].
The unlawful use of those credit cards gave rise to 16 charges of dishonestly using a document, one of which was representative.
The offending comprised a number of episodes spanning the period from 2016 to 2018:
·     During July and October 2016 Mr Te Huia stole cash, jewellery, wallets and credit cards from several retirement home units in and around Auckland.
·     When interrupted by staff members on 5 October he leapt from a second storey balcony to avoid capture and struggled violently with and made threats against staff members who restrained him until police arrived. This gave rise to three assault charges. On arrival police found cannabis in Mr Te Huia’s pocket.
·     After pleading guilty to the 2016 charges Mr Te Huia was admitted to the Alcohol and Other Drug Treatment Court (AODT Court) in March 2017. However, he absconded from the programme in January 2018. The following month he stole from two units in a Pakuranga retirement village, on one occasion waking the 71-year-old occupant.
·     Also in February 2018, Mr…

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 Te Huia v The Queen

Details

AGLC: Te Huia v The Queen [2020] NZCA 647
Case: [2020] NZCA 647
Decision Date: 15 December 2020 at 10.30 am

CaseChat Overview and Summary

Brian Edward Te Huia appeals against his sentence imposed by the District Court at Hamilton. He was sentenced to five years and nine months’ imprisonment with a 50 per cent minimum period of imprisonment, following a guilty plea to charges of dishonesty offences. Te Huia submits that the starting point of seven years’ imprisonment was too high and that insufficient discount was allowed for his personal circumstances. The Court of Appeal considers these issues in turn. The Court agrees that the starting point of seven years’ imprisonment for Te Huia’s extensive dishonesty offending was well within the available range. The Court also considers that the range of discount which the Judge identified was appropriate in the circumstances of this case. The ultimate choice of an eight-month (10 per cent) discount for Te Huia’s childhood and personal circumstances cannot be said to have been in error. The Court concludes that the sentence imposed on Te Huia was not excessive. The appeal is dismissed.

The Court grants the application for an extension of time to appeal, having regard to the disruption occasioned by the COVID-19 pandemic. The Crown accepts there is no prejudice as a consequence of the delay and does not oppose an extension of time.

Orders