HENARE v R [2019] NZHC 1153

HENARE v R [2019] NZHC 1153 [24 May 2019]IN THE HIGH COURT OF NEW ZEALANDGISBORNE REGISTRYI TE KŌTI MATUA O AOTEAROATŪRANGANUI-A-KIWA ROHECRI-2019-416-5[2019] NZHC 1153BETWEEN KAREMOANA EMILIO HAAMI HORITUNNY HENAREAppellantAND THE QUEENRespondentHearing: 7 May 2019Appearances: N Wright for AppellantF E Cleary for RespondentJudgment: 24 May 2019JUDGMENT OF GRICE JBackground[1] Mr Henare was sentenced to 27 months' (two years and three months')imprisonment on one charge of aggravated burglary1 in the Gisborne District Court on15 March 2019.2 He also received a first strike warning.[2] Mr Henare appeals his sentence on the grounds it was manifestly excessivebecause the Judge erred by:(a) Adopting a starting point that was too high; and(b) Failing to provide a discount to the starting point for time spent onelectronically monitored (EM) bail.1 Crimes Act 1961, ss 232(1)(a) and 66(2); maximum penalty of 14 years' imprisonment.2 R v Henare [2019] NZDC 4842.BackgroundThe offending[3] On 19 September 2018 Mr Henare and an associate discussed burgling arestaurant in Gisborne. In the early hours of the next morning they went into thealleyway at the rear of the closed restaurant, smashed a window and entered therestaurant though that window. Each of the co-offenders carried butchers' knives.They went to the bar area where they took bottles of wine and spirts. Mr Henareattempted to remove the cash register, but had difficulty doing so. His co-offenderused his knife to cut the cord. They were in the building for only three minutes beforethey left through the broken window.[4] They took several bottles of spirts and expensive imported wine together withthe register which had around $500 in cash in it, and restaurant gift vouchers. Thesame restaurant was burgled again by two other people later that evening.[5] The District Court noted that the alcohol was worth $5,200.The sentencing[6] On 15 March 2019 the Judge sentenced Mr Henare. He began by givingMr Henare his first strike warning.[7] The Judge indicated that the facts were not disputed and noted this was aserious offence. He took issue with the description of the offending employed bydefence counsel as a "technical" aggravated burglary.3 The Judge said that althoughthe knife was not used it was still carried. He said a flat denial of the substantiveoffence was wrong, and Mr Henare was guilty of the charge.[8] The Judge noted that the opportunity for confrontation was limited, butnevertheless it was still an aggravated burglary.3 At [6].[9] Turning to the victim impact statement, the Judge noted that the owners of therestaurant were new to Gisborne and the financial loss was significant for them.[10] Turning to aggravating factors, the Judge noted the presence of two knives waspart of the offence therefore he did not give an uplift to the sentence for that matter.He did note there was an element of planning, due to the entry through the window,but considered it was not great.[11] The Judge referred to Kaponga v Police and Hape-Kino v R to assist toestablish a starting point.4 He also took guidance from the Court of Appeal caseestablishing sentencing bands for aggravated robbery, R v Mako, but with appropriateadjustment as the offence here was aggravated burglary.5 The Judge noted that defencecounsel referred to the decisions of Melgren v R and R v Shirley.6[12] The Judge adopted a starting point of three years and three months'imprisonment.[13] The Judge gave a discount of three months' imprisonment for Mr Henare'sremorse, youth (he was aged 22 years) and his willingness to engage in restorativejustice. A further nine months' discount was given for an early guilty plea. This lefta total of two years and three months' imprisonment.[14] The Judge noted that even if the sentence had allowed the option, he would nothave considered home detention on the facts.Standard of appeal[15] Mr Henare has brought his appeal under s 250 of the Criminal Procedure Act2011. An appeal against sentence is an appeal against a discretion. Therefore it canonly be allowed if the Court is satisfied that there has been (for any reason): first, anintrinsic error in the sentence imposed and, secondly, a different sentence should be4 Kaponga v Police HC Invercargill CRI-2007-425-19, 2 July 2007; Hape-Kino v R [2017] NZHC2599.5 R v Mako [2000] 2 NZLR 170 (CA); R v Watson CA224/03, 24 October 2003.6 Melgren v R [2016] NZHC 2482; R v Shirley [2009] NZCA 216.imposed.7 The focus is on the final sentence and whether it was in the available range,rather than on the exact process by which it was reached.8 As articulated in R v Peters:9[13] As this Court has indicated on many occasions, the issue whether asentence is manifestly excessive or manifestly inadequate or inappropriatemust be examined in terms of the sentence actually passed rather than theprecise process by which it is reached. Thus, if a sentence might be the productof a starting point which is itself manifestly excessive but is in the resultameliorated by allowances made for mitigating factors so as ultimately to bebrought to a point of acceptability, this Court will be disinclined to intervenethrough concern over any particular component. This is very much such a casehere.Submissions and analysisStarting point[16] Ms Wright, for Mr Henare, argued that the Judge failed to take propercognisance of the fact that aggravated robbery and aggravated burglary are differentoffences. She also takes issue with the Judge's characterisation of the submission thatthis was a "technical aggravated burglary". She says this characterisation had beenmade to emphasise that this was a case at the lower end of the scale.[17] There is no tariff case for aggravated burglary. However, it has beenconsistently accepted that the principles contained in the tariff case for aggravatedrobbery, R v Mako,10 can apply equally to aggravated burglary.11[18] Ms Wright submits:(a) Mako provided an appropriate analysis subject to the appropriateadjustment down for to account for aggravated burglary.127 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482.8 Ripia v R [2011] NZCA 101 at [15].9 R v Peters CA12/03, 14 May 2003 at [13].10 R v Mako, above n 511 R v Watson, above n 5, at [27]; R v Drewett [2007] NZCA 48 at [15]; Archbold v R [2015] NZCA493 at [9].12 R v Mako, above n 5.(b) The Judge put to one side, without reasons or proper consideration,cases put forward on behalf of the defendant including Melgren andShirley which were cases involving aggravated burglary.13(c) In this case the factors, put in context, were less serious than those inShirley and Melgren and comparing them to a number of other caseswere not as serious.14[19] Ms Wright submitted that in this case it was burglary with a knife that was notused. Mr Henare was only on the premises for three minutes. While she accepted thevalue of the property was high. But it was unfortunate as the value was first in thefine wines taken and Mr Henare would not have appreciated they were worth a lot ofmoney, and secondly in unusable gift vouchers. In her submission the offending wasunsophisticated. Ms Wright said Mr Henare had a chance meeting at a pokie bar withsome associates and hours later broke into an unoccupied restaurant which had noaccommodation attached at a time of night when they were unlikely to come acrossanyone on the premises. She said the Judge mischaracterised the fact Mr Henare wason the premises and then out the window in a time of three minutes as some level ofplanning. She argued it was in fact spontaneous. She also submitted the damage waslimited – the till and wiring was damaged but nothing approaching that in Hape-Kino.15[20] Ms Wright says Melgren was a significantly worse case in which the leadcharge of aggravated robbery resulted in a starting point of three and a half years'imprisonment being taken.16 That was a case where it was a residence that was burgledand the defendant and associate wore masks and had a knife. Other charges in the caseincluded a charge of wilful damage and of being armed with intent to commit burglary.The Judge uplifted the starting point by three months for those other charges, leadingto an adjusted term of three years and nine months before the application of otherfactors.13 Melgren v R, above n 6; R v Shirley, above n 614 Kaponga v Police, above n 4; Hape-Kino v R, above n 4.15 Hape-Kino v R, above n 4.16 Melgren v R, above n 6.[21] However, it is difficult to compare factors. While Melgren involved aresidence, not a commercial premise, in both cases the offending was carried out by anumber of co-defendants. In addition, there was a substantial amount of propertytaken and the victim impact report indicates the victims were significantly affected bythe offending.[22] It is now useful to consider the offending here in terms of the categories inMako. The Court of Appeal in Mako said:[54] Different combinations of the features of the offending in the presentcase can be taken by way of example to indicate appropriate starting pointlevels. The robbery of commercial premises where members of the public canbe expected to be present, targeting substantial sums in tills or a safe by agroup, with a lethal weapon, disguises and other indications of preparation,should attract for adult perpetrators after a defended trial a starting point of 6,or perhaps more, years. Where firearms are loaded or the danger of harm isincreased in other ways, or if actual violence is used, the starting point wouldbe 8 years or more. To take the facts of the present case, that it had thehallmarks of a gang operation and the treatment of the tavern patrons wouldhave justified a starting point of 8 years and, in the case of the respondent, thefurther feature of presenting the firearm to the police at the end of a dangerouscar chase would require a starting point of at least 9 years for the overalloffending.[56] A further example can be given taking another combination of featurestypical of many aggravated robberies. This envisages a robbery of a smallretail shop by demanding money from the till under threat of the use of aweapon such as a knife after ensuring no customers are present, with orwithout assistance from a lookout or an accomplice waiting to facilitategetaway. The shopkeeper is confronted by one person with face covered.There is no actual violence. A small sum of money is taken. The starting pointshould be around four years. Should the shopkeeper be confined or assaulted,or confronted by multiple offenders, or if more money and other property istaken five years, and in bad cases six years, should be the starting point.[59] At the other end of the scale would be street robbery by demandingthat the victim hand over money or property such as an item of clothing, wherea knife or similar weapon is produced or where offenders acting together bybullying or menacing conduct enforce the demand though no actual violenceoccurs. Depending upon the circumstances the starting point would bebetween 18 months and 3 years. Actual physical enforcement might wellrequire a higher starting point.[23] The present offending contained a mixture of factors from the three scenariosoutlined above. It is less serious than the first two but more serious than the third.This placement supports the starting point of three years and three months'imprisonment adopted by the Judge.[24] The Judge correctly assessed the fact situation: there were two offenders (botharmed); planning and pre-determination occurred although it was to an unsophisticateddegree; the amount of property taken was substantial and the harm and impact to thevictims was significant.[25] There was no further charge which attracted an uplift, such as the furthercharges in in Melgren.17[26] I am of the view that the starting point adopted by the Judge was within theappropriate range.Discount for EM bail[27] Ms Wright noted that the Judge should have given Mr Henare a discount forthe five weeks spent on EM bail. She accepted that at best it would allow a couple ofweeks discount on the sentence.[28] Section 9(2)(h) of the Sentencing Act 2002 (the Act) notes the Court must takeinto account time spent on EM bail as a mitigating factor. This is further specifiedunder s 9(3A) which notes that the Court must consider:(a) The period of time spent on EM bail;(b) The relative restrictiveness of the EM condition, including thefrequency and duration of the offenders authorised absences from therelevant address;(c) The offender's compliance with their bail conditions during this period;and(d) Any other relevant matter.17 Melgren v R, above n 6.[29] The reduction given to recognise time spent on EM bail is not a matter ofarithmetical equivalence,18 but the issue is advanced on the basis that the Judge didnot turn his mind to the factors set out in s 9(3A) of the Act.[30] The usual allowance for EM bail is for a reduction equating to half the timespent on EM bail where restrictive conditions are imposed.19 Mr Henare spent justover one month on EM bail. A two-week reduction would likely be the maximumavailable.[31] In a footnote in his decision the Judge noted:20At the end of the judgment, I immediately informed both counsel I gave nodiscount for EM Bail because of the period on that bail was very short.[32] This illustrates that he was cognisant of the need to consider EM bail.Ms Wright accepted the Judge had noted the EM bail issue as an addendum.[33] In my view the Judge did take into account EM bail and this is recorded. Inany event the short time involved of itself would not merit interference on appeal. Theapproach was open to the Judge. The Judge made no error.Conclusion[34] I consider the Judge adopted a starting point within the appropriate range, andthe discounts he allowed were appropriate, in fact generous, in the circumstances. Thesentence was not manifestly excessive. He also considered the time spent on EM bail.[35] The appeal is dismissed._________________Grice J18 Parata v R [2017] NZCA 48 at [10] and [12]; Chea v R [2016] NZCA 207 a [110]; Keown v R[2010] NZCA 492 at [12]; Baillie v R [2010] NZCA 507 at [18]; and R v Tamou [2008] NZCA at[19].19 R v Rose [2017] NZHC 1488 at [46]; Prattley v Police [2014] NZHC 486 at [31]; R v Mihaka[2014] NZHC 2921 at [43]; R (CA528/16) v R [2017] NZCA 210 at [14]20 R v Henare, above n 2, at [23], n 4.