NAERA v R [2023] NZHC 2784

NAERA v R [2023] NZHC 2784 [5 October 2023]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2023-463-15[2023] NZHC 2784BETWEEN QUENTON NAERAAppellantAND THE KINGRespondentHearing: 4 October 2023Appearances: D Hall (on behalf of A Burns) for AppellantT Afoa for RespondentJudgment: 5 October 2023JUDGMENT OF LANG J[on appeal against sentence]This judgment was delivered by Justice LangOn 5 October 2023 at 12.45 pmRegistrar/Deputy RegistrarDate:Solicitors/counsel:Gordon Pilditch, Office of the Crown Solicitor, RotoruaBOP Law Ltd/D Hall, Barrister, Rotorua[1] Mr Naera pleaded guilty in the District Court to one charge each of being inpossession of an offensive weapon, using a document for a pecuniary advantage,unlawfully taking a motor vehicle, driving whilst forbidden, being in possession of amethamphetamine pipe and two charges of theft.[2] On 19 January 2023, Judge A J S Snell sentenced Mr Naera to two years onemonth imprisonment on all charges.1 Mr Naera appeals against his sentence. He saysthe sentence is manifestly excessive because his counsel did not obtain a cultural reportthat would have identified further mitigating factors that would have reduced thesentence below that imposed by the Judge.The charges[3] On 6 June 2022, Mr Naera and his partner were living at a motel in Rotorua.The motel manager went to their unit because another resident had reported hearing afemale screaming within the unit. When the motel manager knocked on the door,Mr Naera came to the door and directed vitriolic abuse at the motel manager. As hedid so he was holding a baseball bat in a menacing manner. The motel managerimmediately left the unit and called the police. Mr Naera was then arrested andreleased on bail.[4] Just over three months later, on 22 September 2022, Mr Naera went to a hotpool complex in Rotorua and forced open the door of a storage locker in the malechanging rooms. He took several items from the locker including a cellphone, a set ofcar keys and a wallet. Mr Naera then left the complex and gained access to a Holdenmotor vehicle using the keys had stolen from the storage locker. He drove away in thevehicle, which had a value of approximately $40,000.[5] Over the next two hours, Mr Naera drove around Rotorua using credit cards hefound in the wallet to purchase several items. He then stole further personal itemsfrom the vehicle before locking it and leaving it on the street where it was subsequentlydiscovered by the police.1 New Zealand Police v Naera [2022] NZDC 756.[6] On the following day, the police found Mr Naera driving a motor vehicle inRotorua. When they stopped him, they discovered that he was driving whilstforbidden. When the police looked inside the vehicle he was driving, they could seea methamphetamine pipe.The sentence[7] On the lead charge of unlawfully taking a motor vehicle, the Judge selected astarting point of 16 months imprisonment. He then added an uplift of six months toreflect the remaining dishonesty charges. The Judge also applied an uplift of sixmonths to reflect the charge relating to the unlawful possession of the baseball bat thatMr Naera used to threaten the motel manager.[8] The Judge noted that Mr Naera has an appalling record of dishonesty offendingin both New Zealand and Australia. This goes back many years and he has servednumerous sentences of imprisonment on them. The Judge applied an uplift of fourmonths to reflect this factor.[9] From the resulting sentence of two years four months imprisonment, the Judgeapplied a discount of seven months, or 25 per cent, to reflect guilty pleas. Applyingthe four-month uplift for prior offending, an end sentence of two years one monthimprisonment was reached.The cultural report[10] Mr Burns now seeks leave to provide a cultural report he has obtained forMr Naera. Mr Naera says he raised the possibility of obtaining such a report withcounsel who appeared on his behalf in the District Court but she told him there wasinsufficient time before sentencing to enable a report to be prepared. I grant leave forthe report to be adduced in support of the appeal.[11] The cultural report records that Mr Naera began stealing items at school froman early age. This resulted in him being sent to Australia for two years when he was11 years of age before returning to Rotorua as a teenager. He was then expelled fromtwo separate schools for bad behaviour and stealing. At this point he discovered a lovefor kapa haka and he also began playing rugby league. However, he ceased to beinvolved in these pro-social activities as he became immersed in a criminal lifestyle.This included the consumption of cannabis on a significant scale from the age of16 years.[12] When he was 21 years of age Mr Naera went to live in Australia and heremained there for approximately 22 years. He initially did well in Australia but beganoffending again after becoming involved in an organisation that distributed drugs.This led to his deportation from Australia in 2015. He stole items from a vehicleshortly after his return to New Zealand and this resulted in him being sent to prisonfor 17 months in February 2016. Thereafter he has received sentences ofimprisonment on four occasions, excluding the present, after being convicted oncharges involving allegations of dishonesty.[13] The report states that Mr Naera's offending was caused by poor livingconditions when he was a child but little detail of this is provided. The report saysonly that Mr Naera was exposed to drugs, alcohol, parties and theft from as young ashe can remember. It also says he was subject to physical and mental abuse at the handsof his father and other family members. This information appears to have come solelyfrom Mr Naera and does not appear to have been confirmed by the family members towhom the report writer spoke.[14] The report also records that Mr Naera is now motivated to get a good job andrehabilitate himself. I view these observations with considerable scepticism in lightof his criminal history to date. I see nothing concrete in the report to suggest thatMr Naera is now determined to alter the course he has taken to date. It seems muchmore likely that he will continue to offend opportunistically as he did on 22 September2022.[15] Reading the cultural report as a whole, I consider it provides little informationbeyond what was contained in the pre-sentence report that was before the Judge.Further, at 46 years of age, Mr Naera must now be regarded as a prolific and recidivistdishonesty offender. He has certainly had ample opportunity in the past to pursue adifferent path if that was his desire. I do not consider the factors identified in thecultural report help to explain the present offending other than in the broadest of terms.[16] However, I accept that the Judge may well have given Mr Naera a very modestdiscount if the report had been available when Mr Naera was sentenced. I thereforepropose to make an allowance of one month to reflect the possibility that the rootcauses of his offending may be found in his early family environment. This reducesthe sentence to one of 24 months imprisonment.[17] The Judge ended his remarks by stating that he would not have grantedMr Naera home detention even if the end sentence had been less than two years. I takethe same view. Mr Naera needs to understand that he has now reached the point wherea sentence of imprisonment is now the only realistic outcome for dishonest offendingof the type reflected in the present charges.Result[18] The appeal against sentence is allowed. The sentence of two years one monthimprisonment imposed on the charge of unlawfully taking the motor vehicle is setaside. In its place I impose a sentence of two years imprisonment. All other sentencesremain intact._________________________Lang J