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Te Huia v R [2020] NZCA 647 (15 December 2020)

Last Updated: 23 December 2020

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA382/2020
[2020] NZCA 647

	BETWEEN	BRIAN EDWARD TE HUIA Appellant
	AND	THE QUEEN Respondent

Hearing:	11 November 2020
Court:	Brown, Duffy and Nation JJ
Counsel:	G Walsh for Appellant R Thomson for Respondent
Judgment:	15 December 2020 at 10.30 am

JUDGMENT OF THE COURT

A The application for an extension of time to appeal is granted.

B The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Introduction

[1] Following a sentence indication Mr Te Huia pleaded guilty to several charges, primarily for dishonesty offences. He was sentenced in the District Court at Hamilton to five years and nine months’ imprisonment with a 50 per cent minimum period of imprisonment.^[1] He appeals against that sentence on two grounds:

(a) the starting point of seven years’ imprisonment was too high; and

(b) insufficient discount was allowed for his personal circumstances.

[2] Mr Te Huia’s appeal was filed over four months out of time. It appears that the delay was primarily attributable to disruption occasioned by the COVID-19 pandemic. The Crown accepts there is no prejudice as a consequence of the delay and does not oppose an extension of time. Accordingly the extension of time to appeal is granted.

Factual background

[3] Mr Te Huia was charged with eight representative charges of burglary. His targets were rest-homes and retirement villages. As the sentencing notes record:^[2]

You would walk around the facilities looking for residents who may have been away from their home. You tried to fit into the environment by wearing clothing that was appropriate. You held a clipboard or paper in your hand so it looked as if you had a right to be there. Once you had identified a target you then broke into their home and you would take items of value, jewellery, purses, wallets and credit cards ...

[4] The unlawful use of those credit cards gave rise to 16 charges of dishonestly using a document, one of which was representative.
[5] The offending comprised a number of episodes spanning the period from 2016 to 2018:
- During July and October 2016 Mr Te Huia stole cash, jewellery, wallets and credit cards from several retirement home units in and around Auckland.
- When interrupted by staff members on 5 October he leapt from a second storey balcony to avoid capture and struggled violently with and made threats against staff members who restrained him until police arrived. This gave rise to three assault charges. On arrival police found cannabis in Mr Te Huia’s pocket.
- After pleading guilty to the 2016 charges Mr Te Huia was admitted to the Alcohol and Other Drug Treatment Court (AODT Court) in March 2017. However, he absconded from the programme in January 2018. The following month he stole from two units in a Pakuranga retirement village, on one occasion waking the 71-year-old occupant.
- Also in February 2018, Mr Te Huia committed seven burglaries at retirement villages in Hamilton.
[6] On 9 February 2018 when driving a stolen vehicle and while pursued by police cars, Mr Te Huia recklessly overtook several vehicles and continued driving even after his tyres had been spiked. He eventually lost control of the vehicle and crashed into a tree. He attempted to punch a police officer s as they arrested him. Inside the stolen vehicle Mr Te Huia had an imitation military-style rifle, a methamphetamine pipe and a small amount of cannabis.

District Court sentencing notes

[7] On Mr Te Huia’s request for a sentence indication Judge Saunders indicated:
- a starting point on the dishonesty offending of seven years’ imprisonment;
- an uplift of 12 months for the assaults, resisting arrest, driving and drug charges, but no uplift for offending while on bail;
- a 20 per cent discount for guilty pleas; and
- a 50 per cent minimum period of imprisonment.

Mr Te Huia pleaded guilty. Both a pre-sentence report and a cultural report were ordered.^[3]

[8] At sentencing the Judge recorded that since 1985 Mr Te Huia had amassed 363 previous convictions, 329 of which were for dishonesty offending, 21 being convictions for burglary or entering with intent, which had resulted in numerous sentences of imprisonment.^[4] However, the Judge further noted that there does come a point in life when an offender says enough is enough. The Judge considered that the material before him indicated that Mr Te Huia had reached that stage.^[5] The issue for the Judge was what further discount was available given the pre-sentence and cultural reports.
[9] After noting Mr Te Huia’s longstanding drug addiction, the impact of the death of his father when he was only 13 and the consequences of his becoming institutionalised, spending the last 40 years in and out of prison,^[6] the Judge said:

[11] There are some personal stress factors there for you but it seems that you are now ready to change. You have written a letter that I have read that expresses remorse and insight and as a way of healing you have started to write a book Mr [Te Huia] and that I am sure must be quite a cathartic exercise for you and I am told you now want to embrace your Māori culture. I will give a further discount to you for your personal life because I think notwithstanding the fact that there has been ample opportunity in your past to change I suspect you have now got to that part where you are willing to do so but as I have said it is not going to be easy by any means and is going to take real strength of character. Why now? Well perhaps age is the answer to that Mr [Te Huia].

...

[13] Turning then to the contents of the cultural report and the nexus between your life and I hope I did not send a signal of disservice to you because I did not go into detail on what is in the report because I have read it all in its entirety. I just see little to be gained by going through it verbatim, but I have read it in its entirety. There is a nexus there. I do not accept there is a nexus in terms of the drug addiction but certainly for your background. There is that [causative] link between your childhood and your recidivist offending and in my assessment that would in my view warrant a further discrete discount of between 10 to 15 percent so the end sentence is going to be one of imprisonment for five years and nine months.

[10] In the event the Judge calculated a final sentence of five years and nine months’ imprisonment.^[7]

The appeal

[11] No issue is taken with the 12-month uplift for the further charges, the 20 per cent discount for guilty pleas or the imposition of a minimum period of imprisonment. However the ultimate sentence is challenged as being manifestly excessive as a consequence of the starting point being too high and insufficient discount being allowed for Mr Te Huia’s personal circumstances as explained in the cultural report.
[12] The sentence appeal is brought under s 244 of the Criminal Procedure Act 2011. Hence the Court must allow the appeal only if satisfied that there was an error in the sentence and a different sentence should be imposed.^[8]

First ground of appeal: starting point

[13] Noting that there is no tariff for burglary,^[9] Mr Walsh for Mr Te Huia placed reliance on two decisions of this Court as being suitable comparators which supported a starting point of less than seven years’ imprisonment.
[14] In Williams v R the appellant was sentenced to five years and nine months’ imprisonment on nine charges of burglary, six charges of dishonestly using a document, two charges of receiving stolen property and one representative charge of supplying a class A controlled drug.^[10] Over a six-month period, the appellant burgled nine homes stealing credit cards and other possessions, using the credit cards to make various purchases and withdraw cash. Her mode of operation included targeting elderly persons in affluent suburbs and breaking into their homes. An initial starting point was adopted of six years’ imprisonment with an uplift of 18 months’ imprisonment for other dishonesty charges, a further 12 months’ imprisonment for drug offending and a further six months’ imprisonment to reflect the appellant’s 30 prior burglary convictions. A six-month discount was applied for totality.
[15] From the nominal end sentence of eight years and six months’ imprisonment, discounts were allowed of 21 months for personal matters (remorse and reparation, hardship and time spent on EM bail) and 12 months for guilty pleas, resulting in the final sentence of five years and nine months’ imprisonment. On appeal, this Court held the six-year starting point was high but within range, the uplifts were also within range and the totality principles were applied appropriately.^[11]
[16] The other authority relied upon was Paku v R where this Court dismissed an appeal against a sentence of five years and six months’ imprisonment imposed for one charge of participation in an organised criminal group, four charges of burglary of residential properties (three committed by the appellant alone and one with others) and four charges of receiving property from burglaries committed by others.^[12] The starting point of five and a half years’ imprisonment was considered to be well within range.^[13]
[17] On the basis of those authorities, particularly Williams, Mr Walsh submitted that the appropriate starting point was six years’ imprisonment.
[18] For the Crown, Ms Thomson emphasised that Mr Te Huia had targeted vulnerable members of the community, knowing from past experience he was likely to find unlocked doors, cash and valuables and that he would be able to bluff his way out of confrontation. He burgled the homes of 26 elderly people resulting in eight representative charges. With the benefit of stolen bank cards he stole thousands of dollars.
[19] We agree with Ms Thomson’s submission that the seven-year starting point for Mr Te Huia’s offending was well justified. In particular we agree with her submission that the cases cited on behalf of Mr Te Huia support that conclusion. The starting point of six years in Williams related to just nine burglaries. Although Mr Te Huia faced fewer charges, he stole from significantly more victims. The focus of argument in Mr Paku’s case was the culpability for his role in the organised criminal group. Ms Thomson observed that Mr Paku’s culpability was not primarily driven by the harm he had personally caused by committing the burglary spree himself. In fact this Court observed that Mr Paku had “done rather well” with the starting point.^[14]
[20] In our view the starting point of seven years’ imprisonment for Mr Te Huia’s extensive dishonesty offending was well within the available range.

Second ground of appeal: personal circumstances

[21] In support of his submission that Mr Te Huia’s personal circumstances warranted a greater discount of 20 per cent Mr Walsh highlighted aspects of Mr Te Huia’s history in this way:

His father’s death when the appellant was 13 years old saw the appellant become angry and ‘out of control’. He was sent to Queen Mary Hospital in Hanmer Springs Taha Maori Programme for five weeks. Following his experience there, he returned home ‘worse than before’. Social Welfare intervened and he was placed in the Hodeville Boys Home for about two years. During that time, he was sexually abused. After his time at Hodeville Boys Home, he went to live with an aunt. By the age of 16 years old, he was in and out of trouble with Police and at age 17 years, in corrective training at Rangipo in Turangi. Over the next 40 years, the appellant was in and out of prison, picking up addictions along the way.

(Footnote omitted.)

[22] Mr Walsh submitted that the appellant’s upbringing demonstrated factors such as dislocation from family culture and alcohol and drug abuse to such an extent that it had impaired choice and diminished moral culpability so as to establish a causative contribution to the offending.
[23] As noted above, in discussing the cultural report the Judge acknowledged a nexus between Mr Te Huia’s childhood and his recidivist offending, although the Judge rejected that such a nexus existed between Mr Te Huia’s drug addiction and the offending.^[15]
[24] Ms Thomson noted that in 2016 Mr Te Huia was referred to the AODT Court because of his acceptance of his drug addiction, his personal insights into how his childhood had shaped his behaviour and his impetus to change. However, regrettably he left the AODT Court programme and went into hiding. His 2018 offending then ensued.
[25] Ms Thomson submitted that the discount for the factors in the cultural report was generous and that Mr Te Huia’s personal agency and his choices to avoid rehabilitative interventions must moderate the influence his childhood had on this set of offences.
[26] Having reviewed the cultural report, we consider that the range of discount which the Judge identified was appropriate in the circumstances of this case. The ultimate choice of an eight-month (10 per cent) discount for Mr Te Huia’s childhood and personal circumstances cannot be said to have been in error.

Conclusion

[27] It is only when a sentence is manifestly excessive that the court is justified in substituting its views for those of the sentencing judge. As this Court said in Tutakangahau v R the focus is on the sentence imposed rather than the process by which the sentence was reached.^[16]
[28] In our view the sentence imposed on Mr Te Huia was not excessive. Even if, contrary to our view, there was some reservation about either the level of the starting point or the extent of the discount for personal circumstances, we consider that Mr Te Huia benefited significantly from the Judge’s refusal to impose uplifts either for his criminal history or for his offending while on bail. In addition we consider that the 20 per cent discount for guilty pleas was also generous given that, while pleas to the 2016 charges were promptly made, it was more than 18 months before he pleaded guilty to the 2018 charges.

Result