TE HUIA v R [2020] NZCA 647

TE HUIA v R [2020] NZCA 647 [15 December 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA382/2020[2020] NZCA 647BETWEEN BRIAN EDWARD TE HUIAAppellantAND THE QUEENRespondentHearing: 11 November 2020Court: Brown, Duffy and Nation JJCounsel: G Walsh for AppellantR Thomson for RespondentJudgment: 15 December 2020 at 10.30 amJUDGMENT OF THE COURTA 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[1] Following a sentence indication Mr Te Huia pleaded guilty to several charges,primarily for dishonesty offences. He was sentenced in the District Court at Hamiltonto five years and nine months' imprisonment with a 50 per cent minimum period ofimprisonment.1 He appeals against that sentence on two grounds:1 R v [Te Huia] [2020] NZDC 3141 [District Court sentencing notes].(a) the starting point of seven years' imprisonment was too high; and(b) insufficient discount was allowed for his personal circumstances.[2] Mr Te Huia's appeal was filed over four months out of time. It appears that thedelay 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 notoppose an extension of time. Accordingly the extension of time to appeal is granted.Factual background[3] Mr Te Huia was charged with eight representative charges of burglary.His targets were rest-homes and retirement villages. As the sentencing notes record:2You would walk around the facilities looking for residents who may have beenaway from their home. You tried to fit into the environment by wearingclothing that was appropriate. You held a clipboard or paper in your hand soit looked as if you had a right to be there. Once you had identified a targetyou then broke into their home and you would take items of value, jewellery,purses, wallets and credit cards [4] The unlawful use of those credit cards gave rise to 16 charges of dishonestlyusing a document, one of which was representative.[5] The offending comprised a number of episodes spanning the period from2016 to 2018:• During July and October 2016 Mr Te Huia stole cash, jewellery, walletsand credit cards from several retirement home units in and aroundAuckland.• When interrupted by staff members on 5 October he leapt from a secondstorey balcony to avoid capture and struggled violently with and madethreats against staff members who restrained him until police arrived.This gave rise to three assault charges. On arrival police found cannabisin Mr Te Huia's pocket.2 At [2].• After pleading guilty to the 2016 charges Mr Te Huia was admitted tothe Alcohol and Other Drug Treatment Court (AODT Court) inMarch 2017. However, he absconded from the programme in January2018. The following month he stole from two units in a Pakurangaretirement village, on one occasion waking the 71-year-old occupant.• Also in February 2018, Mr Te Huia committed seven burglaries atretirement villages in Hamilton.[6] On 9 February 2018 when driving a stolen vehicle and while pursued by policecars, Mr Te Huia recklessly overtook several vehicles and continued driving even afterhis tyres had been spiked. He eventually lost control of the vehicle and crashed into atree. He attempted to punch a police officer s as they arrested him. Inside the stolenvehicle Mr Te Huia had an imitation military-style rifle, a methamphetamine pipe anda small amount of cannabis.District Court sentencing notes[7] On Mr Te Huia's request for a sentence indication Judge Saunders indicated:• a starting point on the dishonesty offending of seven years' imprisonment;• an uplift of 12 months for the assaults, resisting arrest, driving and drugcharges, but no uplift for offending while on bail;• a 20 per cent discount for guilty pleas; and• a 50 per cent minimum period of imprisonment.Mr Te Huia pleaded guilty. Both a pre-sentence report and a cultural report wereordered.33 Sentencing Act 2002, ss 26 and 27.[8] At sentencing the Judge recorded that since 1985 Mr Te Huia had amassed363 previous convictions, 329 of which were for dishonesty offending, 21 beingconvictions for burglary or entering with intent, which had resulted in numeroussentences of imprisonment.4 However, the Judge further noted that there does come apoint in life when an offender says enough is enough. The Judge considered that thematerial before him indicated that Mr Te Huia had reached that stage.5 The issue forthe Judge was what further discount was available given the pre-sentence and culturalreports.[9] After noting Mr Te Huia's longstanding drug addiction, the impact of the deathof his father when he was only 13 and the consequences of his becominginstitutionalised, spending the last 40 years in and out of prison,6 the Judge said:[11] There are some personal stress factors there for you but it seems thatyou are now ready to change. You have written a letter that I have read thatexpresses remorse and insight and as a way of healing you have started towrite a book Mr [Te Huia] and that I am sure must be quite a catharticexercise for you and I am told you now want to embrace your Māori culture.I will give a further discount to you for your personal life because I thinknotwithstanding the fact that there has been ample opportunity in your past tochange I suspect you have now got to that part where you are willing to doso but as I have said it is not going to be easy by any means and is going totake real strength of character. Why now? Well perhaps age is the answerto that Mr [Te Huia].[13] Turning then to the contents of the cultural report and the nexusbetween your life and I hope I did not send a signal of disservice to youbecause I did not go into detail on what is in the report because I have read itall in its entirety. I just see little to be gained by going through it verbatim, butI have read it in its entirety. There is a nexus there. I do not accept there is anexus in terms of the drug addiction but certainly for your background. Thereis that [causative] link between your childhood and your recidivist offendingand in my assessment that would in my view warrant a further discretediscount of between 10 to 15 percent so the end sentence is going to be one ofimprisonment for five years and nine months.[10] In the event the Judge calculated a final sentence of five years and nine months'imprisonment.74 District Court sentencing notes, above n 1, at [6].5 At [7].6 At [10].7 At [16].The appeal[11] No issue is taken with the 12-month uplift for the further charges, the20 per cent discount for guilty pleas or the imposition of a minimum period ofimprisonment. However the ultimate sentence is challenged as being manifestlyexcessive as a consequence of the starting point being too high and insufficientdiscount being allowed for Mr Te Huia's personal circumstances as explained in thecultural report.[12] The sentence appeal is brought under s 244 of the Criminal Procedure Act2011. Hence the Court must allow the appeal only if satisfied that there was an errorin the sentence and a different sentence should be imposed.8First ground of appeal: starting point[13] Noting that there is no tariff for burglary,9 Mr Walsh for Mr Te Huia placedreliance on two decisions of this Court as being suitable comparators which supporteda starting point of less than seven years' imprisonment.[14] In Williams v R the appellant was sentenced to five years and nine months'imprisonment on nine charges of burglary, six charges of dishonestly using adocument, two charges of receiving stolen property and one representative charge ofsupplying a class A controlled drug. 10 Over a six-month period, the appellant burglednine homes stealing credit cards and other possessions, using the credit cards to makevarious purchases and withdraw cash. Her mode of operation included targetingelderly persons in affluent suburbs and breaking into their homes. An initial startingpoint was adopted of six years' imprisonment with an uplift of 18 months'imprisonment for other dishonesty charges, a further 12 months' imprisonment fordrug offending and a further six months' imprisonment to reflect the appellant's30 prior burglary convictions. A six-month discount was applied for totality.8 Criminal Procedure Act 2011, s 250(2).9 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].10 Williams v R [2019] NZCA 199.[15] From the nominal end sentence of eight years and six months' imprisonment,discounts were allowed of 21 months for personal matters (remorse and reparation,hardship and time spent on EM bail) and 12 months for guilty pleas, resulting in thefinal sentence of five years and nine months' imprisonment. On appeal, this Courtheld the six-year starting point was high but within range, the uplifts were also withinrange and the totality principles were applied appropriately.11[16] The other authority relied upon was Paku v R where this Court dismissed anappeal against a sentence of five years and six months' imprisonment imposed for onecharge of participation in an organised criminal group, four charges of burglary ofresidential properties (three committed by the appellant alone and one with others) andfour charges of receiving property from burglaries committed by others.12 The startingpoint of five and a half years' imprisonment was considered to be well within range.13[17] On the basis of those authorities, particularly Williams, Mr Walsh submittedthat the appropriate starting point was six years' imprisonment.[18] For the Crown, Ms Thomson emphasised that Mr Te Huia had targetedvulnerable members of the community, knowing from past experience he was likelyto find unlocked doors, cash and valuables and that he would be able to bluff his wayout of confrontation. He burgled the homes of 26 elderly people resulting in eightrepresentative charges. With the benefit of stolen bank cards he stole thousands ofdollars.[19] We agree with Ms Thomson's submission that the seven-year starting point forMr Te Huia's offending was well justified. In particular we agree with her submissionthat the cases cited on behalf of Mr Te Huia support that conclusion. The starting pointof six years in Williams related to just nine burglaries. Although Mr Te Huia facedfewer charges, he stole from significantly more victims. The focus of argument inMr Paku's case was the culpability for his role in the organised criminal group.Ms Thomson observed that Mr Paku's culpability was not primarily driven by the11 At [9]–[11].12 Paku v R [2011] NZCA 269.13 At [13].harm he had personally caused by committing the burglary spree himself. In fact thisCourt observed that Mr Paku had "done rather well" with the starting point.14[20] In our view the starting point of seven years' imprisonment for Mr Te Huia'sextensive dishonesty offending was well within the available range.Second ground of appeal: personal circumstances[21] In support of his submission that Mr Te Huia's personal circumstanceswarranted a greater discount of 20 per cent Mr Walsh highlighted aspects ofMr Te Huia's history in this way:His father's death when the appellant was 13 years old saw the appellantbecome angry and 'out of control'. He was sent to Queen Mary Hospital inHanmer Springs Taha Maori Programme for five weeks. Following hisexperience there, he returned home 'worse than before'. Social Welfareintervened and he was placed in the Hodeville Boys Home for about two years.During that time, he was sexually abused. After his time at Hodeville BoysHome, he went to live with an aunt. By the age of 16 years old, he was in andout of trouble with Police and at age 17 years, in corrective training at Rangipoin Turangi. Over the next 40 years, the appellant was in and out of prison,picking up addictions along the way.(Footnote omitted.)[22] Mr Walsh submitted that the appellant's upbringing demonstrated factors suchas dislocation from family culture and alcohol and drug abuse to such an extent that ithad impaired choice and diminished moral culpability so as to establish a causativecontribution to the offending.[23] As noted above, in discussing the cultural report the Judge acknowledgeda nexus between Mr Te Huia's childhood and his recidivist offending, although theJudge rejected that such a nexus existed between Mr Te Huia's drug addiction and theoffending.15[24] Ms Thomson noted that in 2016 Mr Te Huia was referred to the AODT Courtbecause of his acceptance of his drug addiction, his personal insights into how hischildhood had shaped his behaviour and his impetus to change. However, regrettably14 At [11].15 At [9] above.he left the AODT Court programme and went into hiding. His 2018 offending thenensued.[25] Ms Thomson submitted that the discount for the factors in the cultural reportwas generous and that Mr Te Huia's personal agency and his choices to avoidrehabilitative interventions must moderate the influence his childhood had on this setof offences.[26] Having reviewed the cultural report, we consider that the range of discountwhich the Judge identified was appropriate in the circumstances of this case. Theultimate choice of an eight-month (10 per cent) discount for Mr Te Huia's childhoodand personal circumstances cannot be said to have been in error.Conclusion[27] It is only when a sentence is manifestly excessive that the court is justified insubstituting its views for those of the sentencing judge. As this Court said inTutakangahau v R the focus is on the sentence imposed rather than the process bywhich the sentence was reached.16[28] In our view the sentence imposed on Mr Te Huia was not excessive. Even if,contrary to our view, there was some reservation about either the level of the startingpoint or the extent of the discount for personal circumstances, we consider thatMr Te Huia benefited significantly from the Judge's refusal to impose uplifts eitherfor his criminal history or for his offending while on bail. In addition we consider thatthe 20 per cent discount for guilty pleas was also generous given that, while pleas tothe 2016 charges were promptly made, it was more than 18 months before he pleadedguilty to the 2018 charges.16 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].Result[29] The application for an extension of time to appeal is granted.[30] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent