HUIARANGI v R [2021] NZCA 628

HUIARANGI v R [2021] NZCA 628 [26 November 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA421/2021[2021] NZCA 628BETWEEN NORMAN WILLIAM HUIARANGIAppellantAND THE QUEENRespondentHearing: 2 November 2021Court: Kós P, S France and Katz JJCounsel: H E Juran for AppellantJ J Rhodes and T C T Riley for RespondentJudgment: 26 November 2021 at 9 amJUDGMENT OF THE COURTA The conviction appeal is dismissed.B The sentence appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Katz J)[1] Following a jury trial before Judge Moala in the District Court at Manukau,Norman Huiarangi was found guilty of assault with intent to injure.1 He was convictedand sentenced to one year of imprisonment, to be followed by six months of standardand special release conditions.21 Crimes Act 1961, s 193. Maximum penalty of three years' imprisonment.2 R v Huiarangi [2021] NZDC 10919.[2] Mr Huiarangi appeals both his conviction and sentence. He says that one ofthe Crown's witnesses gave inadmissible hearsay evidence at trial and that, tocompound the problem, the Judge repeated those hearsay statements in hersumming-up. As a result, Mr Huiarangi claims, there has been a miscarriage of justice.[3] In addition, Mr Huiarangi says that his sentence of imprisonment is manifestlyexcessive, and not in parity with the sentence given to his co-offender,Richard Raumati. Mr Juran, counsel for Mr Huiarangi, submitted that the leastrestrictive sentence that was appropriate in the circumstances is one of intensivesupervision.The offending[4] On 8 May 2017, Mr Huiarangi, his sister Aranoa Walker, Mr Raumati,the complainant, the complainant's fiancée, and several other people were socialisingat Mr Raumati's home.[5] The complainant was a boarder at that address. His board payment was duethat day. He went out twice to try and withdraw cash to pay, but returnedempty- handed. This angered Mr Raumati, who began to act aggressively towards thecomplainant. As a result, the complainant retreated to his room and began packing hisbelongings, with help from his fiancée and Ms Walker.[6] Mr Raumati attempted to enter the complainant's room, but the door waslocked. After he began banging on the door with a steering wheel lock, Ms Walkeropened it. Mr Raumati entered the room and swung the steering wheel lock with bothhands at the complainant, striking him hard in the face.[7] At sentencing, the Judge set out her findings that once the complainant hadbeen hit with the weapon, Mr Huiarangi pushed him towards the wall of the room.3When the complainant's back hit the wall, the complainant slid down towards thecorner of the room. While he slid, Mr Huiarangi attacked him, punching him once inthe face with a closed fist. The Judge's findings mirrored a statement that Ms Walker3 At [3].made to the police immediately after the offending. It is implicit from the jury's guiltyfinding that they accepted that aspect of Ms Walker's police statement as true.[8] The complainant suffered multiple fractures to his nasal bones, upper jaw, lefteye socket and left cheek bone.Appeal against convictionGrounds of appeal[9] Mr Huiarangi appeals his conviction under s 232 of the Criminal ProcedureAct 2011 (the CPA). We must allow the appeal if we are satisfied that, having regardto the evidence, the jury's verdict was unreasonable, or a miscarriage of justice hasoccurred for any reason.4 A miscarriage of justice includes any error, irregularity, oroccurrence in or in relation to or affecting the trial that has created a real risk thatthe outcome of the trial was affected, or has resulted in an unfair trial or a trial thatwas a nullity.5 The statutory threshold of a "real risk" requires consideration of"whether there is a reasonable possibility another verdict would have been reached."6[10] Mr Juran submitted that Ms Walker gave hearsay evidence at trial to the effectthat Mr Huiarangi had been told, prior to the assault taking place, that she had beenraped, or was being raped, by the complainant (the rape evidence). Mr Juran submittedthat the possibility of the jury relying on the rape evidence to reason that Mr Huiarangihad a motive to assault the complainant had led to a miscarriage of justice. Mr Juranfurther submitted that the trial Judge compounded the risk by referring to the rapeevidence in her summing-up, despite neither counsel having referred to it in theirclosing addresses.Ms Walker's evidence that Mr Huiarangi believed she had been raped[11] Mr Huiarangi's first trial commenced on 7 October 2019. Ms Walker gaveevidence that during the fight Mr Raumati "was egging [Mr Huiarangi] on" and thatshe heard afterwards that Mr Raumati had told Mr Huiarangi that she was being raped4 Criminal Procedure Act 2011, s 232(2)(a) and (c).5 Section 232(4).6 Misa v R [2019] NZSC 134, [2020] 1 NZLR 85 at [48].by the complainant. Ms Walker went on to add that, during the fight itself,Mr Huiarangi said something about Ms Walker being raped by the complainant, in herpresence.[12] This evidence was admissible under s 27 of the Evidence Act 2006 as adefendant's statement offered by the prosecution. It is not surprising then, that noissue was taken with this evidence by defence counsel at the first trial. The first trialhad to be aborted, however, as Mr Huiarangi was exposed to measles and had toself-isolate.[13] The rape evidence at the second trial emerged somewhat differently, and in amore confused and contradictory manner. Ms Walker referred several times to herunderstanding that Mr Huiarangi had entered the room and assaulted the complainantbecause he believed that the complainant had raped her. For example, duringMs Walker's evidence-in-chief she stated that after the assault someone had told herthat Mr Huiarangi had got "pulled in" to the argument because he had been told thatshe was being raped. She said that she did not know, however, who had told her this,and that she only learned of it after the event. Ms Walker then said she had only heardthat Mr Huiarangi thought she had been raped after "they all got arrested" but she didnot say who she heard it from.[14] Ms Walker was subsequently declared hostile and the prosecution was givenleave to cross-examine her on her police statement. The contents of her statement(significant parts of which she denied) were then put to her. She gave the followingevidence regarding Mr Huiarangi's belief that she was being raped:A. I didn't know, [Mr Huiarangi] helped me, he helped me 'cos I heardhe was – I was getting raped and he stopped [Mr Raumati] with theweapon.[15] In addition, the following exchange is relevant:Q. You said your brother was trying to protect you?A. Yeah, 'cos I told you I was getting raped from – someone spread it.[16] Counsel for Mr Raumati then cross-examined Ms Walker, during which thefollowing exchange took place:Q. Right, but your brother is much –A. He – he helped 'cos – he actually said to my brother, recalling themto drinking, while I was helping them packing, that I was getting rapedfrom whoever was in the room with me.Q. Well, you don't know who said that.A. Well, I heard it 'cos he told me before. He (inaudible: 15:04:53)7[Mr Raumati] said I was getting raped.Q. So –A. So that's how I just left it, I didn't know anything after that when Icalled yous.[17] Counsel for Mr Raumati then put it to Ms Walker that she had discussed thecase with Mr Huiarangi, and that he had told her that he believed she was being raped.She denied having discussed this issue with her brother and said she "got told fromsomeone that told him". The trial Judge intervened at this point and stoppedcounsel from pursuing this line of questioning further. Counsel continued, however,to ask questions about Ms Walker and Mr Huiarangi discussing the case. During thisexchange Ms Walker confirmed that her brother had told her "heart to heart [t]hat hejust wanted to protect me".[18] The issue was touched on again in the following exchange between counsel forMr Raumati and Ms Walker:Q. But you didn't – you didn't see Mr Raumati giving anyone a hiding –A. No, I (inaudible: 15:09:43) it was gonna – like, you know, it wasgonna be a hiding, ended up to be a hiding. Not (inaudible: 15:09:50)[my] phone call and I said, "My brother's running after me," wasbecause he told me that (inaudible: 15:09:55) [Mr Raumati] wasgonna – was telling him that I got raped and I then – I – that's whenI was on the street with the weapon –(emphasis added.)7 We have listened to the relevant passage from the audio recording of the hearing and the inaudibleword appears to be "koro".[19] The context of this evidence was that in Ms Walker's 111 call to the police shehad said that her brother was running after her and that he was "a giant". When theabove exchange is viewed in its full context, including the surrounding evidence in thetranscript, Ms Walker appears to have been attempting to convey that the reason herbrother was running after her that night was to tell her that Mr Raumati had told himthat she had been raped by the complainant.[20] Whatever the broader context, however, in this passage Ms Walker identifiesMr Huiarangi as the source of the information, stating that "[Mr Huiarangi] told methat [Mr Raumati] was telling him that I got raped".[21] The final relevant exchange between Ms Walker and counsel for Mr Raumatioccurred when it was put to Ms Walker that she had exaggerated Mr Raumati's role inthe assault. She denied this suggestion and explained that she had "took off with theweapon" and called the police because:I had to – well [Mr Raumati] already done the damage doing the swings withthe weapon and then what, it's only – my brother (inaudible 15:14:20) raped.[22] We have listened to the relevant passage in the audio recording, the correcttranscription of which would appear to be:I had to – well [Mr Raumati] already done the damage doing the swings withthe weapon and then what, saying to my brother I was getting raped.(emphasis added.)[23] Finally, while being cross-examined by Mr Huiarangi's counsel, Ms Walkeridentified the complainant's fiancée as the source of the rape information:Q. Is it possible that you told the police that [Mr Huiarangi had hit thecomplainant], because you heard it from someone else, even thoughyou didn't see it?A. Heard the rape? It was from [the complainant's fiancée], when the –Q. No, no, that you heard that [Mr Huiarangi] had hit [the complainant],had punched [the complainant], or pushed [the complainant] even;that you'd heard that from other people, even though you –A. No, no; it was – nah, never heard it from anyone. I only heard whathappened when [Mr Raumati] was saying that I was getting rapedfrom [the complainant]. It came out of his fiancée's mouth.[24] In summary, Ms Walker gave varying explanations as to the source of herunderstanding that someone had told Mr Huiarangi that the complainant had raped her(or was raping her) including that she did not know, that "someone spread it", that thecomplainant's fiancée had told her, and that her brother, Mr Huiarangi, had told her.She also stated that her brother had told her that he just wanted to protect her which,in context, was clearly linked to the rape evidence.Was "the rape evidence" inadmissible hearsay evidence?[25] Mr Juran submitted that the rape evidence was inadmissible hearsay evidence.The Crown disagreed, and submitted that the rape evidence was not inadmissiblehearsay evidence, because it was not relied on for the truth of its contents, namely thatMs Walker had been raped.[26] We agree that the prosecution was not relying on this evidence at trial to provethat Ms Walker had been raped. Rather, what was in issue was the truth of the variousstatements that someone had told Ms Walker that Mr Huiarangi believed she had beenraped. It was that belief that provided a potential motive for Mr Huiarangi to assaultthe complainant. The relevant statements were therefore inadmissible hearsay unlessthe source of the information was Mr Huiarangi himself, in which case the relevantstatements would be admissible under s 27 of the Evidence Act as a defendant'sstatements offered by the prosecution.[27] As set out above, in our view Ms Walker identified Mr Huiarangi as the sourceof the information twice. Those passages of her evidence are accordingly admissibleagainst Mr Huiarangi (only) pursuant to s 27 of the Evidence Act.[28] On other occasions Ms Walker identified either an unknown person or thecomplainant's fiancée as the person who told her that Mr Huiarangi had been told shehad been raped. Those passages of evidence were hearsay. In our view, however, nomiscarriage of justice has arisen as a result of their admission. On the contrary, itwould likely have been detrimental to the defence for the Judge to direct the jury todisregard those passages and instead focus solely on the evidence in which Ms Walkeridentified Mr Huiarangi as the source of the rape information. The fact thatMs Walker's evidence on the rape issue was confused and contradictory (like most ofher evidence in court) significantly undermined any impact the passages mightotherwise have had.[29] The fact that Mr Huiarangi was identified as the source of the rape evidence atleast once (and probably twice) in the second trial, combined with the fact thatMr Huiarangi was clearly identified as the source of this information at the first trial,may well explain why no hearsay objection was taken to this aspect of Ms Walker'sevidence at the second trial. If such an objection had been taken, however, the Crownwould have been able to cross-examine Ms Walker on her clear statements at the firsttrial that Mr Huiarangi was the source of the rape evidence (given that Ms Walker hadbeen declared hostile). This would have likely further reinforced Mr Huiarangi as thesource of this information, to the detriment of the defence. Strategically, therefore, itwas in the interests of the defence not to object to the statements by Ms Walker thatidentified someone other than Mr Huiarangi as the source of the rape evidence.[30] The rape evidence was not an issue that featured prominently in eithercounsel's closing address, although the prosecutor did refer to Mr Huiarangi beingangry and there "to protect his sister" which was clearly a reference to this evidence,although the word "rape" was not expressly used. The trial Judge did not therefore errin referring to the rape evidence, in passing, when summing up the Crown case.[31] It seems apparent from their verdict that the jury must have disregarded mostof what Ms Walker said in Court, preferring to rely instead on her police statement.Indeed, we note that in his closing address at trial Mr Juran submitted to the jury thatin order to find Mr Huiarangi guilty they would have to rely on Ms Walker's policestatement and "reject all of the evidence that she gave to you [in court]". That appearsto have been exactly what they did.[32] For the reasons outlined, the conviction appeal must fail.Appeal against sentenceGrounds of appeal[33] Mr Huiarangi appeals his sentence under s 244 of the CPA. The court mustallow the appeal if it is satisfied that for any reason there is an error in the sentenceimposed on conviction and a different sentence should be imposed.8[34] The grounds of Mr Huiarangi's sentence appeal are that the starting pointadopted by the Judge was too high; no uplift should have been imposed for prioroffending; imprisonment was not the least restrictive sentence that was appropriate inthe circumstances; and Mr Huiarangi's sentence was not in parity with that of hisco-offender, Mr Raumati.District Court sentencing[35] The Judge adopted a starting point of 15 months' imprisonment. That was thenuplifted by one month to account for Mr Huiarangi's prior convictions for violentoffending.9 Her Honour then applied a discount of four months to recognise thebackground factors contained in a cultural report prepared under s 27 of the SentencingAct 2002 and the positive steps Mr Huiarangi had taken in custody.10 The end sentencewas therefore one of 12 months' imprisonment. This was to be followed by six monthsof standard and special release conditions.11Was the starting point too high?[36] The Judge was referred to two sentencing decisions involving assaults withintent to injure — Tamihana v R12 and Lopeti v Police.13 In Tamihana a starting pointof 12 months' imprisonment was adopted.14 In Lopeti a starting point of 10 months'imprisonment was adopted.158 Criminal Procedure Act 2011, s 250(2).9 R v Huiarangi, above n 2, at [4].10 At [5]–[6].11 At [6].12 Tamihana v R [2015] NZCA 169.13 Lopeti v Police [2015] NZHC 3209.14 Tamihana v R, above n 12, at [33].15 Lopeti v Police, above n 12, at [20].[37] Mr Huiarangi's offending is more similar to that in Tamihana than in Lopeti,principally because both involved a group attack where the offender was the secondattacker striking an already injured and vulnerable complainant.16 Mr Huiarangi'soffending is, however, somewhat more serious than that of Mr Tamihana.Mr Huiarangi's complainant had been struck hard to the head with a metal weapon,seriously injuring him, prior to Mr Huiarangi punching him in the head. A startingpoint of 15 months' imprisonment was therefore within the available range, althoughtowards the upper end of that range.Was a one-month uplift for Mr Huiarangi's prior convictions appropriate?[38] Mr Huiarangi's criminal record includes two convictions for male assaultsfemale, one of injuring with intent, one of threatening to kill or do grievous bodilyharm, and two for indecent assault. This offending all took place againstMr Huiarangi's former partner.[39] Mr Juran submitted that the Judge erred by imposing a one-month uplift toreflect these convictions. In particular, he submitted that they are somewhat historicaland occurred in a completely different context, namely family violence againstMr Huiarangi's former partner in the aftermath of tragedy (the death of their child).[40] In our view the Judge did not err in imposing an uplift for these convictions.The uplift was modest. Further, the earlier violent offending was proximate(in 2014–2016) to the current offending (in 2017).Did the Judge err by failing to impose a community-based sentence?[41] Mr Juran submitted that the Judge erred by failing to impose a less restrictivesentence than imprisonment.[42] Section 16 of the Sentencing Act provides that when considering theimposition of a sentence of imprisonment for any particular offence, the court musthave regard to the desirability of keeping offenders in the community as far as that ispracticable and consonant with the safety of the community. Further, the court must16 See generally Tamihana v R, above n 12, at [4].not impose a sentence of imprisonment unless it is satisfied that the sentence is beingimposed for any or all of the purposes set out in s 7(1)(a) to (c), (e), (f), or (g) of theSentencing Act, that those purposes cannot be achieved by a sentence other thanimprisonment, and that no other sentence would be consistent with the application ofthe sentencing principles in s 8.[43] In Palmer v R, this Court observed that:17[19] there is nothing in the Sentencing Act 2002 to suggest apresumption for or against commutation, either generally or for particulartypes of offence. The decision calls for the case by case exercise of judgmentagainst the statutory principles and purposes of sentencing. Those principlesand purposes sometimes point, as here, in opposing directions, meaning thatthe sentencing judge is called upon to assess whether home detention canrespond adequately to the seriousness of the offending. As the Courtexplained in R v D (CA253/2008), it can be very difficult in a marginal caseto articulate reasons for preferring one approach to another. In consequence,the margin of appreciation extended to sentencing judges is usuallysignificant.[44] The difficulty confronting the Judge when sentencing Mr Huiarangi was thathis criminal and bail history provides little confidence that he will comply with acommunity-based sentence.[45] Mr Huiarangi was scheduled to be sentenced on 3 September 2020, followingan earlier adjournment for reasons beyond his control. The 3 September hearing wasadjourned, however, because there was no pre-sentence report. This was becauseMr Huiarangi had failed to attend a number of scheduled interviews with the reportwriter.[46] Mr Huiarangi then failed to appear at the adjourned sentencing date of30 October 2020 and a warrant for his arrest was issued. He was brought before thecourt on 3 November 2020, readmitted to bail, and a new sentencing date was set downfor 12 February 2021.[47] On 18 January 2021, Mr Huiarangi was arrested for breaching bail, but wasreadmitted to bail. On 12 February 2021, he again failed to appear for sentence.The Judge issued a further warrant for his arrest. Mr Huiarangi was arrested and17 Palmer v R [2016] NZCA 541 (footnotes omitted).brought before the Court on 23 February 2021. No application for bail was advancedon that occasion. A new sentencing date of 10 May 2021 was scheduled.[48] On 31 March 2021, Mr Huiarangi was granted electronically-monitored (EM)bail pending sentence. Just over a week later on 8 April 2021, Mr Huiarangi wasarrested for leaving his EM bail address without approval. He maintained that he didhave approval and was readmitted to EM bail.[49] On 12 April 2021, Mr Huiarangi was arrested for a further breach of EM bail,again involving leaving his EM bail address without approval. The court readmittedhim to EM bail, but with a warning.[50] Mr Huiarangi breached his EM bail again on 14 and 17 April 2021, both timesfor failing to return to his EM bail address after an approved absence. On bothoccasions, he was again readmitted to EM bail, with further warnings.[51] Finally, Mr Huiarangi was again arrested for breaching EM bail on 19 April2021. He was located at an address, having been involved in a family violence incidentwith his then partner. Police enquiries cast doubt on Mr Huiarangi's excuse that hehad left his EM bail address to attend the birth of his child; that he had got on thewrong bus; and that he had gone to an address to look for a ride to the hospital.On 23 April 2021, Mr Huiarangi appeared in court again. This time he did not seek tobe readmitted to EM bail. Mr Huiarangi remained in custody until his sentencing on1 June 2021.[52] A community-based sentence, such as a sentence of supervision(as recommended in the pre-sentence report) relies upon an offender's willingness tocomply with their sentence conditions. Mr Huiarangi's repeated breaches of bail,failure to engage with the pre-sentence report writer, and failures to appear forsentence, indicate an entrenched disregard for court orders and court-imposedconditions. This raises serious concern as to his suitability for a community-basedsentence. Given this background, a sentence of imprisonment was within thesignificant margin of appreciation afforded to the sentencing Judge in terms ofPalmer.18[53] Finally, we note that Mr Huiarangi was released from prison on 6 September2021. He is now subject to post-release conditions. Should Mr Huiarangi continue tocomply with those conditions then he will not return to prison. Mr Juran neverthelessurged us to impose additional post-release conditions on Mr Juran, and to extend theduration of his post-release conditions, on the basis that this may assist Mr Huiarangi'srehabilitation.[54] We are satisfied that the post-release conditions imposed by the Judge areappropriate. Among other things, they include a condition enabling Mr Huiarangi'sprobation officer to direct him to "attend and complete any counselling, treatment orprogramme". This clearly has a rehabilitative focus.Does Mr Huiarangi's sentence breach the parity principle?[55] Mr Juran submitted that the Judge failed to consider the disparity in sentencesbetween Mr Huiarangi and Mr Raumati. He noted that Mr Raumati was sentenced tohome detention,19 even though the Judge acknowledged that Mr Raumati was theprimary offender.20[56] The parity principle has not been breached in this case. As Mr Riley submitted,the difference between Mr Raumati's starting point of three years and nine months'imprisonment and Mr Huiarangi's starting point of 15 months' imprisonment isproportionate to their respective culpability. Beyond that, the sentences are onlyaffected by factors personal to the offenders.21 There can be no argument thatMr Huiarangi should have received the same discounts as Mr Raumati. The discountsapplied rely on the unique personal circumstances of each offender.18 Palmer v R, above n 17, at [19].19 R v Raumati [2020] NZDC 27609 at [20]–[22].20 R v Huiarangi, above n 2, at [3].21 See generally R v Raumati, above n 19, at [14]–[20]; and R v Huiarangi, above n 2, at [5]–[6].Result[57] The appeal against conviction is dismissed.[58] The appeal against sentence is dismissed.Solicitors:Crown Solicitor, Manukau for Respondent