HENARE v R [2020] NZCA 188

HENARE v R [2020] NZCA 188 [28 May 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA492/2019[2020] NZCA 188BETWEEN STEPHEN JAMES HENAREAppellantAND THE QUEENRespondentHearing: 11 May 2020Court: Collins, Duffy and Edwards JJCounsel: J N Bioletti for AppellantM R Heron QC for RespondentJudgment: 28 May 2020 at 10.30 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] On 28 August 2019, Muir J sentenced Mr Henare to 5 years and 2 months'imprisonment in relation to five charges of theft by a person in a special relationshipand one charge of attempting to pervert the course of justice.1 Mr Henare pleadedguilty to those charges on the fourth day of his trial.1 R v Henare [2019] NZHC 2126.[2] Mr Henare appeals his sentence. He contends Muir J failed to give sufficientcredit to factors that Mr Henare says should have resulted in a lower sentence. It isalso submitted on behalf of Mr Henare that the High Court Judge misunderstoodaspects of the evidence relating to Mr Henare's offending.[3] The arguments advanced in support of the appeal are:(a) Muir J mischaracterised Mr Henare's offending as being driven in partby a sense of self-entitlement.(b) Insufficient credit was given to the consequences of a prison sentenceupon Mr Henare's former wife, who is seriously ill.(c) The sentencing Judge did not sufficiently consider Mr Henare's age.(d) The sentencing Judge should have recognised the impact ofMr Henare's state of whakamā when sentencing him.Background[4] On 1 September 1987, the Māori Trustee took control of a 511.83 ha block ofMāori land located in the Taitokerau District. The land was held in a trust referred toas the "Parengarenga 3G Trust" (P3G Trust). Mr Henare made it his mission to havethe control of the land returned to his people. This was achieved to some degree when,on 8 June 2012, the Māori Land Court appointed Mr Henare, his sister,Margaret Dixon, and five other people as the trustees of the P3G Trust in place of theMāori Trustee. There are approximately 400 beneficial owners of the land owned bythe P3G Trust.[5] The land had been leased to forestry companies and progressively surrenderedback to the P3G Trust prior to the Māori Land Court decision in June 2012.[6] Mr Henare and Ms Dixon opened a bank account in the name of the P3G Trustand arranged for themselves to be the signatories.[7] The P3G Trust received the following payments:(a) $1,037,696.47 from the Māori Trustee on 7 August 2012;(b) $59,122.87 from the Māori Trustee on 14 August 2012; and(c) $54,480.00 from a carbon markets broker on 17 August 2013.[8] Between 8 August 2012 and 13 January 2014, almost all of the money receivedby the Trust was transferred to accounts controlled by Mr Henare, Ms Dixon and othermembers of their immediate whānau. By 4 August 2014, when Mr Henare andMs Dixon were removed as trustees by the Māori Land Court, just $13.41 remainedin the P3G Trust's bank accounts.2[9] Mr Henare was the principal recipient of the money that was stolen. Hepersonally received $853,000, which was used to finance his gambling addictions andlavish lifestyle. Ms Dixon, who appears to have received $130,836 pleaded guilty toher role in the offending and was sentenced to 12 months' home detention and orderedto pay $5,000 by way of reparation.[10] The charge of attempting to pervert the course of justice arose from evidenceMr Henare gave to the Māori Land Court on 22 January 2013, when he and Ms Dixonresisted an application by another of the P3G trustees to have them removed from theTrust. Mr Henare was questioned by the Court about the status of the P3G accounts.He assured the Court that there was "just under a million" in the account. That was alie. At the time of the hearing approximately $400,000 remained in the account. TheCourt appears to have accepted Mr Henare's assurances and declined to remove himas a trustee at that time.Sentencing decision[11] Muir J had before him a number of victim impact statements that recounted thedevastating impact of Mr Henare's offending upon the beneficiaries of the P3G Trust.2 Slade – Parengarenga 3G (2014) 84 Taitokerau MB 134 (84 TTK 134).The harm inflicted by Mr Henares's offending was not confined to the financial andeconomic devastation wrought by his conduct. Those who provided victim impactstatements spoke in heartfelt terms about the humiliation, shame and loss of manaMr Henare's offending has caused to beneficiaries of the Trust and their whānau.[12] The High Court Judge also had the benefit of a comprehensive cultural reportprepared pursuant to s 27 of the Sentencing Act 2002. That report recorded the abusesMr Henare had witnessed and suffered when growing up. It also explained thatMr Henare and his wife separated in 2013 and Mr Henare commenced a relationshipwith another woman. Although Mr Henare and his wife were separated, he stillassumed responsibility for her care. She has a number of debilitating medicalconditions, including Alzheimer's disease. Mr Henare explained to the s 27 reportwriter that he started gambling in 2011 and that this infliction evolved into profoundaddiction by 2013.[13] The pre-sentence report presented to the Judge stated Mr Henare had limitedinsight into his offending and that he did not appear to accept the severity of theconsequences of his actions.[14] Muir J adopted a starting point of 5 years and 6 months' imprisonment for thelead offence of theft by a person in a special relationship. The Judge added a further12 months to that starting point, to reflect the attempt to pervert the course of justicecharge and then made a 6-month deduction to take account of the totality principle.From the overall starting point of 6 years' imprisonment, Muir J deducted 10 monthsfor factors personal to Mr Henare and his guilty pleas. This resulted in an end sentenceof 5 years and 2 months' imprisonment comprising 4 years and 4 months'imprisonment for the theft by a person in a special relationship charges and 10 months'imprisonment for the attempting to pervert the course of justice charge.[15] No issue was taken with the starting points adopted by Muir J or his decisionto treat the sentence for attempting to pervert the course of justice as cumulative to thesentence for the other charges. As foreshadowed in [2], the appeal against sentencefocuses upon the deductions made for factors that Mr Henare argues should haveresulted in a lower end sentence. We shall now examine each of those factors.Was Mr Henare's offending motivated by a sense of self-entitlement?[16] When considering the aggravating factors associated with Mr Henare'soffending, Muir J said:3Mr Henare had clear responsibilities as a trustee which he breached in a grossand flagrant way. The origins of the offending clearly lay in a sense ofpersonal entitlement evidenced by his statement to the SFO, wheninterviewed, that his role as a trustee was to "go in and get everything I amentitled to". In turn that sense of entitlement probably had its origins in aperceived injustice to his forbears in respect of the land. Whatever the reason,he abused his responsibilities as trustee to fund his own lavish lifestyle, whilethose he was called to serve suffered and continue to do so.[17] The High Court Judge made other references in his sentencing decision toMr Henare's sense of self-entitlement.4 Muir J rejected an argument that Mr Henarewas entitled to any reduction to his sentence because of the extensive work he haddone on behalf of the P3G Trust because of Mr Henare's fundamental failure to fulfilhis objective to the Trust when he masterminded the defalcations in order to supporthis gambling habit and lavish lifestyle.[18] In this Court it was argued on behalf of Mr Henare that what the Judge referredto as an overwhelming sense of entitlement was interwoven with Mr Henare's beliefthat the land had been wrongfully taken from a small group of original Māori owners,including his grandmother.[19] We accept Mr Henare did devote considerable time and energy towards havingthe land returned to its rightful owners. His criminal offending, however, occurredsoon after the Māori Land Court appointed Mr Henare, Ms Dixon and others astrustees in place of the Māori Trustee. As soon as he could do so Mr Henare, and to alesser extent Ms Dixon, divested the Trust of its money. Mr Henare used the Trustmoney to fund his gambling and expensive luxuries, such as a corporate box at rugbyleague games.[20] Within approximately 12 months of becoming a trustee, Mr Henare and hissister had stolen almost all of the Trust's money. In part he did so because he believed3 R v Henare, above n 1, at [31(c)].4 At [44]–[45].he was entitled to treat the Trust money as his own. Thus, Muir J was correct whenhe criticised Mr Henare for his sense of self-entitlement. This feature of the case wasparticularly disturbing and was properly assessed by the High Court Judge as anaggravating factor. We can see nothing wrong with the approach taken by the HighCourt Judge.Mrs Henare's illness[21] Muir J was very mindful of the impact of a prison sentence upon Mr Henare'sestranged wife. The Judge was aware of her significant health issues and wassympathetic to her plight.5 We also appreciate the impact of Mr Henare's sentenceupon his former wife.[22] Unfortunately, criminal offending often has a severe impact on the family ofthe offender, particularly when sentences of imprisonment are required in order toreflect the principles and purposes of sentencing. While all readily sympathise withMrs Henare's circumstances, we can see no basis for interfering with the approachtaken by the High Court Judge in relation to this aspect of the sentence. The impacton Mrs Henare of the sentence her husband must serve is one of many tragicconsequences that flow from Mr Henare's decision to commit large-scale thefts.Mr Henare's age[23] Mr Henare was 62 years old when he was sentenced. Mr Henare's age was nottreated as a mitigating factor in the High Court. The Judge was, however, fully awareof Mr Henare's age and in the circumstances of this case he was not required to treatMr Henare's age as a special mitigating factor.Whakamā[24] In this case, counsel for Mr Henare explained that Mr Henare is in a state ofwhakamā. Mr Henare's daughter referred to this concern when she told the writer ofthe s 27 report that:5 At [19].This is the thing that is hurting me. If my father passed I wouldn't know whereto take him. I wouldn't know who to call. He has been outcast and it has beenput publicly. It is not just about him, it is about us. How do we even go there?Our mana has been stripped, our tikanga value is gone We as a whānau, weare broken.[25] We understand the point raised by Mr Henare's daughter reflects the culturalconcept of whakamā. Some have equated whakamā with shame.6 We acknowledgethat while whakamā may involve elements of shame it may engage broader conceptsthat reflect upon the mana, not just of Mr Henare, but his whānau.[26] Unfortunately, neither the author of the s 27 report nor anyone else recognisedthis point when Mr Henare was being sentenced. Similarly, we have not had thebenefit of any guidance on what whakamā actually entails in the context of this caseand what, if any recognition can be properly given to this factor in Mr Henare'scircumstances. All we can say is that in an appropriate future case, the courts may beable to explore the possibility of treating whakamā as a unique mitigating factor whensentencing a Māori defendant.Result[27] We uphold all features of the sentencing decision of Muir J.[28] The appeal is dismissed.Solicitors:Serious Fraud Office, Auckland for Respondent6 Solicitor-General v Heta [2018] NZHC 2453, [2019] NZLR 241 at [18].