Waharoa v The King
[2023] NZHC 3751
•18 December 2023
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CRI-2023-442-17
[2023] NZHC 3751
BETWEEN AARON JAMES WAHAROA
Appellant
AND
THE KING
Respondent
Hearing: 19 October 2023 Appearances:
R A Harrison for the Appellant J M Webber for the Respondent
Judgment:
18 December 2023
JUDGMENT OF PALMER J
Counsel/Solicitors
R A Harrison, Barrister, Blenheim O’Donoghue Webber, Nelson
WAHAROA v R [2023] NZHC 3751 [18 December 2023]
What happened?
[1] Mr Aaron Waharoa, aged 47, pleaded guilty to eight offences of burglary, one offence of receiving property worth less than $500, two offences of theft of a motor vehicle, one offence of unlawfully taking a motor vehicle, and two offences of theft of goods worth less than $500.1 These offences were committed between December 2019 and March 2020 in Nelson and the Tasman region. He:
(a)stole a backpack from a dwelling in Maybank;
(b)burgled and trashed the Tahunanui Tennis Club;
(c)burgled and ransacked a house in Brightwater and took a vehicle;
(d)took potted plants from a roadside stall in Brightwater;
(e)burgled a building site in Brightwater;
(f)burgled a work yard and office in Annesbrook, taking a vehicle and trailer;
(g)burgled a van belonging to the Nelson Kitchen Studio;
(h)took petrol from the Richmond BP station;
(i)burgled a vehicle belonging to Micro Plumbing;
(j)burgled a campervan in Toi Toi, stole a vehicle, and a horse-float trailer; and
(k)burgled commercial premises of Motor Rewind Specialists.
1 Crimes Act 1961, s 231(1)(a) (maximum penalty of 10 years’ imprisonment); ss 246 and 247(c) (maximum penalty of three months’ imprisonment); ss 219 and 223 (maximum period of seven years’ imprisonment); s 226 (maximum penalty of seven years’ imprisonment); ss 219 and 223(d) (maximum penalty of three months’ imprisonment).
[2] On 2 February 2022, Mr Waharoa received a formal sentencing indication for some of those charges and others, which he declined to accept. He spent two years and three months in custody. He was granted bail to complete a rehabilitation programme in Auckland and was then granted bail with his whānau until his sentencing. He subsequently asked for an informal updated sentencing indication. Judge J E Rielly gave him that indication on 1 June 2023, concluding by stating “the ultimate outcome will most certainly be a term of imprisonment” which would be over two years. He accepted the indication. On 8 September 2023, in the District Court at Nelson, Judge Rielly sentenced Mr Waharoa to three years’ imprisonment:2
(a)She set a starting point of three years and nine months’ imprisonment for the burglaries, with a nine-month uplift for the other dishonesty offending, for an overall starting point of four years and six months’ imprisonment.3
(b)She noted that Mr Waharoa had rehabilitated extremely well in the community.4 She referred to:
(i)A reference from Man Up, where he completed a programme and remained connected.
(ii)A pre-sentence report by the Department of Corrections which recommended home detention.
(iii)A report on Mr Waharoa’s person background by Ms Shelley Turner under s 27 of the Sentencing Act 2002. That report outlined Mr Waharoa’s deprivation, psychological abuse, alignment with his uncles in the Mongrel Mob, and addiction to methamphetamine which he sustained through criminal activity. The report noted he had been drug-free for two and a half years at 2 September 2023, had been engaging in church services, in regular contact with a sponsor, and engaging with a kaumatua
2 R v Waharoa [2023] NZDC 19636 [Judgment on Appeal] at [56].
3 At [8].
4 At [27].
for cultural advice. The Judge accepted Mr Waharoa’s offending behaviour was tied to his abuse of methamphetamine.5
(c)The Judge made discounts to Mr Waharoa’s sentence of 19 months in total, composed of: 10 per cent for his guilty pleas; 10 per cent for his addiction issues which were causative of his offending; 10 per cent for his rehabilitation efforts; and five per cent for his willingness to pay reparation to the victims.6
(d)She uplifted the sentence by six months for Mr Waharoa’s previous convictions and his offending while on bail.7
(e)She stated:
[46] I entirely understand why Mr Harrison, on your behalf, urges the Court to structure the sentence in a way that will mean that an alternative to a term of imprisonment is appropriate. That is argued because you have made such extensive and positive and successful efforts at rehabilitation.
[47] Despite that, this is concerning offending behaviour, and I have to make sure that I am consistent in the way that I approach sentencing for your offending behaviour taking into account not just your interests in sentencing, but the victims’ interests and also the wider community’s interests. Burglaries and thefts are offences that people have significant concern about.
(f)In an addendum to the sentencing, the Judge deducted five months from the sentence for the 15 months Mr Waharoa had spent on electronically monitored (EM) bail.8
Appeal and application
[3] Mr Waharoa appeals his sentence and applies to adduce further evidence of certificates showing the courses Mr Waharoa undertook in prison and while on EM bail. For further evidence to be adduced on appeal, it must be fresh, credible, and
5 At [33].
6 At [39]–[43].
7 At [44].
8 At [52].
cogent.9 Mr Harrison, for Mr Waharoa, accepts the documents were not fresh but submits it was in the interests of justice that they be admitted. Mr Webber, for the Crown, submits the material is not fresh but is neutral on the application because it makes little difference to the appeal.
[4] The evidence is not fresh. Mr Harrison says some of the documents were not before the District Court. But some of it was before the District Court, as the sentencing makes clear.10 And the comprehensive report by Ms Turner makes clear the extent of Mr Waharoa’s rehabilitation activities. The additional evidence does not add anything to the evidence before the sentencing court. I decline the application to admit it.
[5] Under s 250(2) of the Criminal Procedure Act 2011, I must allow the appeal if I am satisfied that there is an error in the sentence imposed and a different sentence should be imposed. I must be satisfied that the sentence is manifestly excessive.11 The focus is on whether the end sentence was within the range available.12
Issue 1: Sentencing methodology
[6] Mr Harrison’s written submissions were that there was an error in the sentencing methodology applied by the Judge because the uplifts were added after the discounts. Mr Webber submits there was no error, in light of the Court of Appeal’s decision in Moses v R.13 Mr Webber is correct, as Mr Harrison conceded at the hearing. The Court in Moses made clear that the first step in sentencing is to calculate an adjusted starting point, incorporating aggravating and mitigating features of the offence.14 The second step incorporates all aggravating and mitigating factors personal to the offender, together with any guilty plea discount, calculated as a percentage of the adjusted starting point. That is what the Judge did. I dismiss this ground of appeal.
9 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120]. This approach was more recently confirmed in Ellis v R [2021] NZSC 77 at [29]–[30]; and Mark v R [2019] NZCA 121 at [16].
10 Judgment on Appeal, above n 2, at [26] and [30].
11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27], [33], and [35].
12 Ripia v R [2011] NZCA 101 at [15].
13 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.
14 At [46].
Issue 2: Insufficient discounts
[7] Mr Harrison submits the Judge erred in giving insufficient discounts to Mr Waharoa’s sentence. Mr Webber submits otherwise. I take the issues in turn.
[8] First, Mr Harrison submits the addiction and rehabilitation discounts should each have been higher than 10 per cent because the addiction arose from deprivation because his offending was not as serious as in Berkland v R.15 Mr Webber submits the comparison with Berkland is flawed.
[9] I agree that the relevance of Berkland is limited here. The Supreme Court made clear there that the key focus is on how the identified factors have impacted the individual’s agency and moral culpability, the weight to be afforded to sentencing purposes, including as denunciation and deterrence, and how the factors could impact the effect a certain sentence has on an individual.16 This assessment is different from case to another, depending in its circumstances.
[10] Mr Waharoa’s offending was not as serious as Mr Berkland’s but it was repetitive, which itself can weigh against larger discounts for personal circumstances which were causative contributions to the offending.17 And Mr Berkland’s 10 per cent discount was for what the Supreme Court described as exceptional efforts at rehabilitation, in becoming a role model for other prisoners.18 Considering the personal circumstances of Mr Waharoa overall, I cannot say that the Judge erred in awarding discounts of 10 per cent for his addiction and for his rehabilitation efforts. Those discounts were within the ranges available.
[11] Second, Mr Harrison submits a discount of at least seven or eight months should have been made for Mr Waharoa’s 15 months on EM bail. Mr Webber submits the time on EM bail was adequately recognised.
15 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [94] and [151]–[162].
16 At [89]–[92]; and Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [137]–[138].
17 See Berkland v R, above n 15, at fn 105.
18 At [159]–[160].
[12] There are no guidelines for the extent of discount for time spent on EM bail. But restrictive bail conditions are not treated as equivalent to custody.19 Percentages between 30 and 50 per cent of the time spent on EM bail are often used, with the Court of Appeal noting than an allowance of up to 50 per cent are not uncommon.20 The discount here, of 33 per cent, was at the lower end of the usual range. But Mr Waharoa’s EM bail conditions were not particularly onerous. He was allowed to attend counselling, church, and work commitments. His bail was varied twice, to attend a tangi and a wedding. EM bail allowed Mr Waharoa to engage in a lot of pro-social activity which was reflected in the discount for rehabilitation. A discount of five months for 15 months spent on EM bail is not outside the available range.
[13] Third, Mr Harrison submits a discount of 10 per cent, rather than five per cent, was warranted for Mr Waharoa’s arrangement of full reparation of $9,100 from his whānau, which he will repay. Mr Webber submits the discount for the reparations was appropriate in the circumstances.
[14] Section 10 of the Sentencing Act requires the court to take account of any offer of amends. Discounts for reparations are highly fact specific, with relevant factors including: the nature of the offer; the effect of payment on the offender; whether it is voluntary; and the extent to which the offer mitigates the victims’ loss.21 Mr Waharoa has not yet paid the reparation he offered. The offer does not make up the victims’ losses. I cannot say the Judge erred in awarding a discount of five per cent for the offer of reparation.
[15] Overall, I consider the Judge did not err in discounting Mr Waharoa’s sentence. I dismiss this ground of appeal.
Issue 3: Manifestly excessive
[16] Finally, Mr Harrison submits the sentence was manifestly excessive in all the circumstances, with Mr Waharoa having spent 23 months in custody and 15 months
19 Paora v R [2021] NZCA 559 at [50].
20 At [53]; Parata v R [2017] NZCA 48 at [15]; R v R [2017] NZCA 210 at [14]; Chea v R [2016]
NZCA 217 at [111]; and Hall v R [2020] NZCA 183 at [37].
21 Watene v R [2023] NZHC 441 at [50].
on EM bail. The principles of denunciation and deterrence have been served and the focus should be on continuing with his rehabilitation. Imprisonment was out of all proportion to the circumstances and gave insufficient weight to Mr Waharoa and his rehabilitation. He should be released on the basis of time-served and returned to a pro- social environment. Mr Webber submits that what Mr Waharoa seeks would amount to constructing the sentence backwards, starting with the desired end sentence and casting around for ways to get there, involving discounts of 66 per cent. The sentence is not manifestly excessive.
[17] I do not consider the sentence is manifestly excessive either. Mr Waharoa pleaded guilty to a spree of 14 burglaries and thefts throughout the Tasman region over four months. The Judge carefully set the starting point, uplifts, and discounts. Mr Waharoa’s time in custody will go towards his sentence and his time on EM bail was taken into account. I cannot identify an error in the sentencing. The end sentence was consistent with the totality of the offending.
Result
[18] The application to adduce further evidence is declined. The appeal is dismissed.
Palmer J
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