HAJNAL-HUATA v NEW ZEALAND POLICE [2020] NZHC 424

HAJNAL-HUATA v NEW ZEALAND POLICE [2020] NZHC 424 [6 March 2020]IN THE HIGH COURT OF NEW ZEALANDGISBORNE REGISTRYI TE KŌTI MATUA O AOTEAROATŪRANGANUI-A-KIWA ROHECRI-2020-416-000003[2020] NZHC 424BETWEEN PARIS FRASER-LEE HAJNAL-HUATAAppellantAND NEW ZEALAND POLICERespondentHearing: 3 March 2020Counsel: M Lynch for the AppellantL Marshall for the RespondentJudgment: 6 March 2020JUDGMENT OF DOOGUE JIntroduction[1] Leave to file this appeal out of time was granted by France J on3 February 2020.[2] The appellant, Mr Paris Hajnal-Huata, appeals against a sentence of 28 months'imprisonment imposed by Judge Cathcart on 3 December 2019 in the GisborneDistrict Court.1[3] The charges are possession of cannabis for the purpose of supply,2 andtwo charges of possession of a cutdown .22 rifle.31 Police v Hajnal-Huata [2020] NZDC 26459.2 Misuse of Drugs Act 1975, s 6(1)(f). Category 3. Maximum penalty of eight years' imprisonment.3 Arms Act 1983, s 45(1). Category 3. Maximum penalty of four years' imprisonment or a fine of$5,000.[4] Mr Hajnal-Huata appeals on three grounds:(a) that the Judge erred in relying on Kawiti v R in adopting a starting pointthat was too high;4(b) that it would have been appropriate to convert a qualifying sentence ofimprisonment to home detention; and(c) that, in any event, an error in calculation meant that the end sentenceshould have been 27 months.[5] In addition, if the appeal is allowed, Mr Hajnal-Huata seeks leave for anyqualifying sentence to be converted to home detention.Factual background[6] The police located the first firearm concealed in a bag in the bedroom of oneof the children of Mr Hajnal-Huata, when they executed a search warrant. Theylocated the second firearm at the alleged co-offender's address, when they executed adifferent search warrant.[7] The police also located approximately 11 pounds of cannabis head material atthe alleged co-offender's address, some of which was in a bag in a linen cupboard inthe hallway of the address. The remainder was in a sports bag under a bed in a secondbedroom. The cannabis had been vacuum-packed, sealed and bagged, each bagweighing approximately one pound. It is estimated to have a street value of $44,000.$4,000 in cash was located on the kitchen table of the address. Police locatedsix mature cannabis plants growing in the alleged co-offender's yard, and a smallamount of cannabis inside the house. The alleged co-offender admitted to growingthese plants, and having possession of the small amount of cannabis for personal use.[8] When interviewed by police, Mr Hajnal-Huata stated that both of the firearmswere his, as was the 11 pounds of cannabis.4 Kawiti (aka Brown) v R [2014] NZCA 222.District Court decision[9] The Judge held that the offending fell within category 2 of R v Terewi,5 asadjusted for possession of cannabis for supply offending according to R v Keefe.6 TheJudge referred to the competing submissions as to the starting point and referred toKawiti v R, finding that it had similarity with Mr Hajnal-Huata's offending.7 In Kawitithe Court of Appeal dealt with an appeal where the original starting point of threeyears, nine months' imprisonment in respect of a charge of possession of cannabis wasnot challenged.8 The estimated yield of the cannabis and head material found was5.2 kilograms to the value of somewhere between $46,000 and $52,000 if sold by theounce. The Judge also referred to the decisions cited by counsel for Mr Hajnal-Huata,namely R v Moore, R v Ngatai and R v Cooper.9[10] Having compared those cases, the Judge found it difficult to find a principle-based comparison between them as they appeared to be "out of line with oneanother".10 In the circumstances he considered the best approach was to return to firstprinciples while being guided by these cases. He then said that given the amount ofcannabis found and the fact that it was for the purpose of supply, he considered astarting point of three years, four months' imprisonment was appropriate by referenceto such principles.[11] The Judge gave an uplift, finding the firearm offending linked to the drugoffending was an aggravating factor. He set the uplift for this at six months. He alsogave an uplift for Mr Hajnal-Huata's earlier convictions for the use of firearms. Hegave an uplift of two months in accordance with Orchard v R.11[12] He then turned to issues of mitigation. He considered the cultural assessment(prepared under s 27 of the Sentencing Act 2002), the pre-sentence report andMr Hajnal-Huata's expressions of remorse in his letter to the Court. He accepted that5 R v Terewi [1999] 3 NZLR 62 (CA).6 R v Keefe CA275/02, 28 November 2002.7 Kawiti v R, above n 48 Kawiti v R, above n 49 R v Moore [2013] NZHC 1427; R v Ngatai [2014] NZHC 186; R v Cooper [2013] NZHC 170.10 Police v Hajnal-Huata, above n 1, at [10].11 Orchard v R [2019] NZCA 529.the remorse was sufficient for him to recognise that beyond what was inherent in hisguilty pleas. He deducted two months for remorse.[13] He also gave a deduction of 10 months for personal circumstances linked tothe cultural assessment.[14] Finally, he gave a discount for early guilty pleas at the maximum rate of25 per cent. He arrived at the following sentences:(a) On the charge of possession of cannabis for supply – 28 months'imprisonment.(b) On the charge of possession of the .22 firearm – 12 months'imprisonment, concurrent.(c) An order for destruction of the firearms.[15] The sentencing exercise is summarised in table format below:Description Date Starting PointPossession of cannabis for supply 17 October 2019 40 monthsUplift for two possession of a cut down .22 rifle charges + 6 monthsUplift for previous convictions for use of firearms + 2 monthsReduction for remorse - 2 monthsReduction for personal circumstances - 10 monthsGuilty plea discount - 8 months (25%)End sentence 28 monthsApproach to appeal[16] This appeal is brought under s 250 of the Criminal Procedure Act 2011. Anappeal against sentence is an appeal against a discretion and therefore must only beallowed if the Court is satisfied that there has been (for any reason) an intrinsic errorin the sentence imposed, and that a different sentence should be imposed.12[17] The sentence must be either manifestly excessive or inappropriate if theappellate court is to interfere with the discretion.13[18] The focus is on the final sentence rather than the exact process by which it wasreached, and whether the sentence was in the available range.14 As articulated inR v Peters:15As this Court has indicated on many occasions, the issue whether a sentenceis manifestly excessive or manifestly inadequate or inappropriate must beexamined in terms of the sentence actually passed, rather than the preciseprocess by which it is reached. Thus, if a sentence might be the product of astarting point which is itself manifestly excessive but it 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.[19] The appeal poses three questions:(a) Did the Judge err in relying on Kawiti v R in adopting a starting pointthat was too high?(b) If the appeal is successful on the first point, and should the freshsentence be within the range of 24 months, would it be appropriate toconvert the sentence to home detention?(c) Was there, in any event, an error in calculation meaning that the endsentence should have been 27 months?12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.13 Affleck v Police [2017] NZHC 3220 at [9].14 Ripia v R [2011] NZCA 101 at [15].15 R v Peters CA12/03, 14 May 2003 at [13].Did the Judge adopt a starting point that was too high?Appellant's submissions[20] Mr Lynch for Mr Hajnal-Huata submitted that the Judge placed heavy relianceon Kawiti, which involved cultivation, possession for supply and manufacturingcannabis charges relating to 8.8 kilograms of cannabis.16 Further, Mr Lynch submittedthat the Judge did not take sufficient account of the additional charges in that case.The defendant in Kawiti also had 3.5 kilograms of cannabis leaf – which could beturned into cannabis oil – raising the value from the $46,000 to $52,000 estimate(which only related to the cannabis head). The starting point in Kawiti took intoaccount the additional facts that Mr Kawiti was growing the cannabis andmanufacturing cannabis oil, too.17 Those were seriously aggravating features notpresent in this case.[21] Mr Lynch cited other cases to illustrate that there have been a significantnumber of cases involving more serious offending and yet lower starting points thanin the present case.18[22] Mr Lynch argued that the offending falls into band two of the Terewi decision,19with reference to Keefe,20 in other words, small-scale cannabis offending involving acommercial purpose. The Court in those cases said the starting point was generallybetween two and four years, perhaps less where sales are infrequent and to a verylimited extent.21[23] Mr Lynch submitted that the Judge was wrong to place the offending at thehigh end of band two. He said the features which appear to have led him to do this arethe amount of cannabis and the potential yield. He characterised Mr Hajnal-Huata'srole as someone acting at a level slightly higher than a street dealer. That, he said,16 Kawiti v R, above n 417 Kawiti v R, above n 418 R v Cooper, above n 9; R v Moore, above n 9; R v Sharpe HC Rotorua CRI-2010-063-004641, 22July 2011; Kennedy v Police [2017] NZHC 3066; R v Akuhata DC Gisborne CRI-2016-016-000761, 14 July 2017; Akuhata v R [2017] NZHC 2237.19 R v Terewi, above n 5.20 R v Keefe, above n 6.21 R v Terewi, above n 5, at [4].means that the starting point should have been at the lower end of band two fromTerewi,22 and a starting point of something in the region of two years to two years,six months' imprisonment should have been imposed. That being the case, hesubmitted that the difference between what the Judge imposed as a starting point(three years, 10 months) and the suggested starting point (two years, six months)makes the sentence imposed manifestly excessive.Respondent's submissions[24] Ms Marshall for the respondent acknowledged the initial error in calculationof one month but submitted that the starting point was not too high, that the uplift forfirearm possession was modest and the discount for personal circumstances wasgenerous. She submitted that in adopting a starting point of five months less than inKawiti, the Judge did acknowledge and account for the differences in severity ofoffending.23 She cited Police v Bevans and R v Duncan, which had starting points oftwo years, six months and three years respectively, arguing that they were adopted forsignificantly less serious offending involving cannabis.24[25] Ms Marshall accepted the starting point was towards the upper end of the bandbut submitted this was justified by the firearms offences which she characterised as aserious aggravating feature.25 Whilst acknowledging that the starting point ofthree years, 10 months was stern, Ms Marshall argued it was available to the Judge, orat the very least it was not manifestly excessive.[26] Further, Ms Marshall argued that the adjustments for personal aggravating andmitigating features were to Mr Hajnal-Huata's advantage. The uplift of two monthsfor prior convictions was modest, given that Mr Hajnal-Huata has20 prior convictions, including for cannabis and weapons offending. The reduction ofone year for remorse and personal circumstances was generous, especially given thatthe pre-sentence report assessed Mr Hajnal-Huata as being at a high risk of reoffendingand noted his active involvement with his local gang and drug use. I agree with this22 R v Terewi, above n 5.23 Kawiti v R, above n 424 New Zealand Police v Bevans [2013] NZHC 2066; R v Duncan [2009] NZCA 18.25 R v Faifua [2011] NZCA 152: Hedges v New Zealand Police [2014] NZHC 3240.submission. I consider that the uplift of two months for prior convictions was verymodest. I also consider that the reduction of one year for remorse and personalcircumstances was generous in the circumstances of this case.Analysis[27] The focus on appeal is whether the end sentence is manifestly excessive, ratherthan the means by which it is calculated.[28] It does appear the Judge made an error in his analysis of Kawiti.26 But the caselaw is varied and, comparisons with other cases not demonstrating a unified or evendominant direction, the cases are only of limited assistance in an overall review of thestarting point.[29] The uplifts and deductions used by the Judge were very favourable toMr Hajnal-Huata given all the factors outlined above, as well as the firearms being asignificant aggravating feature.[30] If the starting point was reduced as submitted by Mr Lynch and the uplifts anddeductions were made less favourably to Mr Hajnal-Huata (which, given the factorsoperating in this case, would be entirely justified), then the outcome would becomparable with the Judge's end sentence. Accordingly, the sentence is not manifestlyexcessive.[31] I do however, need to correct the Judge's error in calculation. One month needsto be deducted from the sentence.Would it be appropriate to convert the sentence to home detention?Submissions[32] Mr Lynch submitted that if the Court saw fit to reduce the sentence and imposea qualifying sentence (a short-term sentence of two years' imprisonment or less27),then it would be appropriate to convert the sentence to one of home detention.26 Kawiti v R, above n 4.27 Sentencing Act 2002, ss 80A(1)(a) and 15A(1)(b); Parole Act 2002, s 4.[33] He referred to the following to support his submission:(a) Mr Hajnal-Huata's early guilty plea;(b) the pre-sentence report writer's recommendation for home detention;(c) Mr Hajnal-Huata's history of complying with community-basedsentences and electronically monitored bail; and(d) Mr Hajnal-Huata's rehabilitative needs.[34] Ms Marshall did not address the appropriateness or otherwise of homedetention. By inference that must be because she was firmly of the view that theoffending was such that a qualifying sentence could not be justified on the facts of thiscase.Analysis[35] Mr Hajnal-Huata has an extensive criminal history. He has been convicted ofprocurement/possession of cannabis. He has one conviction for aggravated robbery(with a firearm), three convictions for possession of an offensive weapon, and oneconviction for presenting an object as a firearm. His other convictions includeoffending relating to violence, threatening, disorderly behaviour, property damage,breaching conditions of supervision, and escaping lawful custody. He has receivedfour previous sentences of imprisonment in 2010, 2015, 2016 and 2019, and wassentenced to home detention in 2017. Mr Hajnal-Huata had been released from hismost recent term of imprisonment approximately one month before the currentoffending. The principle of consistency does not support a reversion to a communitybased sentence now, given his prior and recent terms of imprisonment.[36] Although recommending a sentence of home detention, the pre-sentence reportalso notes Mr Hajnal-Huata is at high risk of reoffending, and poses a high risk ofharm to the public based on his offending history including violent offending and theuse of weapons. The pre-sentence report also notes that although Mr Hajnal-Huatacompleted a sentence of home detention in 2016-17 without incident, he did breach asupervision sentence in 2010, and his ability to comply with a community basedsentence was assessed as "medium". While the cultural assessment notes Mr Hajnal-Huata has recognised the impact of his offending and acknowledged his wrongdoing,the pre-sentence report records his offending related factors as anti-social associations,drug use, offending supporting attitudes, and high sense of entitlement. This is basedon his significant ties with the Black Power gang.[37] While I accept that the sentence of home detention is a serious one, I do notconsider it would have been sufficient in this case, if it had been available, to achievethe purposes of denunciation and deterrence, and I do not consider it would have beenappropriate in light of his previous offending and the risk he poses to the community.Result[38] Appeal allowed. The end sentence should be one of two years, three months'imprisonment.Doogue JSolicitors:Crown Solicitor, GisborneWoodward Chrisp Solicitors, Gisborne