Huiarangi v R [2021] NZCA 628 (26 November 2021)

Last Updated: 30 November 2021

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA421/2021 [2021] NZCA 628

	BETWEEN	NORMAN WILLIAM HUIARANGI Appellant
	AND	THE QUEEN Respondent

Hearing:	2 November 2021
Court:	Kós P, S France and Katz JJ
Counsel:	H E Juran for Appellant J J Rhodes and T C T Riley for Respondent
Judgment:	26 November 2021 at 9 am

JUDGMENT OF THE COURT

1. The conviction appeal is dismissed.
2. 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 convicted and sentenced to one year of imprisonment, to be followed by six months of standard and special release conditions.^[2]
• [2] Mr Huiarangi appeals both his conviction and sentence. He says that one of the Crown’s witnesses gave inadmissible hearsay evidence at trial and that, to compound the problem, the Judge repeated those hearsay statements in her summing‑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 manifestly excessive, and not in parity with the sentence given to his co-offender, Richard Raumati. Mr Juran, counsel for Mr Huiarangi, submitted that the least restrictive sentence that was appropriate in the circumstances is one of intensive supervision.

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 socialising at Mr Raumati’s home.
• [5] The complainant was a boarder at that address. His board payment was due that day. He went out twice to try and withdraw cash to pay, but returned empty‑ handed. This angered Mr Raumati, who began to act aggressively towards the complainant. As a result, the complainant retreated to his room and began packing his belongings, with help from his fiancée and Ms Walker.
• [6] Mr Raumati attempted to enter the complainant’s room, but the door was locked. After he began banging on the door with a steering wheel lock, Ms Walker opened it. Mr Raumati entered the room and swung the steering wheel lock with both hands at the complainant, striking him hard in the face.
• [7] At sentencing, the Judge set out her findings that once the complainant had been hit with the weapon, Mr Huiarangi pushed him towards the wall of the room.^[3] When the complainant’s back hit the wall, the complainant slid down towards the corner of the room. While he slid, Mr Huiarangi attacked him, punching him once in the face with a closed fist. The Judge’s findings mirrored a statement that Ms Walker made to the police immediately after the offending. It is implicit from the jury’s guilty finding 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, left eye socket and left cheek bone.

Appeal against conviction

Grounds of appeal

• [9] Mr Huiarangi appeals his conviction under s 232 of the Criminal Procedure Act 2011 (the CPA). We must allow the appeal if we are satisfied that, having regard to the evidence, the jury’s verdict was unreasonable, or a miscarriage of justice has occurred for any reason.^[4] A miscarriage of justice includes any error, irregularity, or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial or a trial that was 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 effect that Mr Huiarangi had been told, prior to the assault taking place, that she had been raped, or was being raped, by the complainant (the rape evidence). Mr Juran submitted that the possibility of the jury relying on the rape evidence to reason that Mr Huiarangi had a motive to assault the complainant had led to a miscarriage of justice. Mr Juran further submitted that the trial Judge compounded the risk by referring to the rape evidence in her summing-up, despite neither counsel having referred to it in their closing 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 gave evidence that during the fight Mr Raumati “was egging [Mr Huiarangi] on” and that she heard afterwards that Mr Raumati had told Mr Huiarangi that she was being raped 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 her presence.
• [12] This evidence was admissible under s 27 of the Evidence Act 2006 as a defendant’s statement offered by the prosecution. It is not surprising then, that no issue was taken with this evidence by defence counsel at the first trial. The first trial had to be aborted, however, as Mr Huiarangi was exposed to measles and had to self‑isolate.
• [13] The rape evidence at the second trial emerged somewhat differently, and in a more confused and contradictory manner. Ms Walker referred several times to her understanding that Mr Huiarangi had entered the room and assaulted the complainant because he believed that the complainant had raped her. For example, during Ms Walker’s evidence-in-chief she stated that after the assault someone had told her that Mr Huiarangi had got “pulled in” to the argument because he had been told that she 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 heard that Mr Huiarangi thought she had been raped after “they all got arrested” but she did not say who she heard it from.
• [14] Ms Walker was subsequently declared hostile and the prosecution was given leave 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 following evidence regarding Mr Huiarangi’s belief that she was being raped:
  1. I didn’t know, [Mr Huiarangi] helped me, he helped me ’cos I heard he was – I was getting raped and he stopped [Mr Raumati] with the weapon.
• [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 the following exchange took place:

Q. Right, but your brother is much –

1. He – he helped ’cos – he actually said to my brother, recalling them to drinking, while I was helping them packing, that I was getting raped from whoever was in the room with me.

Q. Well, you don’t know who said that.

1. Well, I heard it ’cos he told me before. He (inaudible: 15:04:53)^[7] [Mr Raumati] said I was getting raped.

Q. So –

1. So that’s how I just left it, I didn’t know anything after that when I called yous.

• [17] Counsel for Mr Raumati then put it to Ms Walker that she had discussed the case 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 from someone ... that told him”. The trial Judge intervened at this point and stopped counsel from pursuing this line of questioning further. Counsel continued, however, to ask questions about Ms Walker and Mr Huiarangi discussing the case. During this exchange Ms Walker confirmed that her brother had told her “heart to heart [t]hat he just wanted to protect me”.
• [18] The issue was touched on again in the following exchange between counsel for Mr Raumati and Ms Walker:

Q. But you didn’t – you didn’t see Mr Raumati giving anyone a hiding –

1. No, I (inaudible: 15:09:43) it was gonna – like, you know, it was gonna 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,” was because he told me that (inaudible: 15:09:55) [Mr Raumati] was gonna – was telling him that I got raped and I then – I – that’s when I was on the street with the weapon –

(emphasis added.)

• [19] The context of this evidence was that in Ms Walker’s 111 call to the police she had said that her brother was running after her and that he was “a giant”. When the above exchange is viewed in its full context, including the surrounding evidence in the transcript, Ms Walker appears to have been attempting to convey that the reason her brother was running after her that night was to tell her that Mr Raumati had told him that she had been raped by the complainant.
• [20] Whatever the broader context, however, in this passage Ms Walker identifies Mr Huiarangi as the source of the information, stating that “[Mr Huiarangi] told me that ... [Mr Raumati] ... was telling him that I got raped”.
• [21] The final relevant exchange between Ms Walker and counsel for Mr Raumati occurred when it was put to Ms Walker that she had exaggerated Mr Raumati’s role in the assault. She denied this suggestion and explained that she had “took off with the weapon” and called the police because:

I had to – well [Mr Raumati] already done the damage doing the swings with the 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 correct transcription of which would appear to be:

I had to – well [Mr Raumati] already done the damage doing the swings with the 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 Walker identified the complainant’s fiancée as the source of the rape information:
  17. Is it possible that you told the police that [Mr Huiarangi had hit the complainant], because you heard it from someone else, even though you didn’t see it?

A. Heard the rape? It was from [the complainant’s fiancée], when the –

17. 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 –
1. No, no; it was – nah, never heard it from anyone. I only heard what happened when [Mr Raumati] was saying that I was getting raped from [the complainant]. It came out of his fiancée’s mouth.

• [24] In summary, Ms Walker gave varying explanations as to the source of her understanding 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 the complainant’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 inadmissible hearsay evidence, because it was not relied on for the truth of its contents, namely that Ms Walker had been raped.
• [26] We agree that the prosecution was not relying on this evidence at trial to prove that Ms Walker had been raped. Rather, what was in issue was the truth of the various statements that someone had told Ms Walker that Mr Huiarangi believed she had been raped. It was that belief that provided a potential motive for Mr Huiarangi to assault the complainant. The relevant statements were therefore inadmissible hearsay unless the source of the information was Mr Huiarangi himself, in which case the relevant statements would be admissible under s 27 of the Evidence Act as a defendant’s statements offered by the prosecution.
• [27] As set out above, in our view Ms Walker identified Mr Huiarangi as the source of the information twice. Those passages of her evidence are accordingly admissible against Mr Huiarangi (only) pursuant to s 27 of the Evidence Act.
• [28] On other occasions Ms Walker identified either an unknown person or the complainant’s fiancée as the person who told her that Mr Huiarangi had been told she had been raped. Those passages of evidence were hearsay. In our view, however, no miscarriage of justice has arisen as a result of their admission. On the contrary, it would likely have been detrimental to the defence for the Judge to direct the jury to disregard those passages and instead focus solely on the evidence in which Ms Walker identified Mr Huiarangi as the source of the rape information. The fact that Ms Walker’s evidence on the rape issue was confused and contradictory (like most of her evidence in court) significantly undermined any impact the passages might otherwise have had.
• [29] The fact that Mr Huiarangi was identified as the source of the rape evidence at least once (and probably twice) in the second trial, combined with the fact that Mr 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’s evidence at the second trial. If such an objection had been taken, however, the Crown would have been able to cross-examine Ms Walker on her clear statements at the first trial that Mr Huiarangi was the source of the rape evidence (given that Ms Walker had been declared hostile). This would have likely further reinforced Mr Huiarangi as the source of this information, to the detriment of the defence. Strategically, therefore, it was in the interests of the defence not to object to the statements by Ms Walker that identified someone other than Mr Huiarangi as the source of the rape evidence.
• [30] The rape evidence was not an issue that featured prominently in either counsel’s closing address, although the prosecutor did refer to Mr Huiarangi being angry 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 err in 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 most of 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 that in order to find Mr Huiarangi guilty they would have to rely on Ms Walker’s police statement and “reject all of the evidence that she gave to you [in court]”. That appears to have been exactly what they did.
• [32] For the reasons outlined, the conviction appeal must fail.

Appeal against sentence

Grounds of appeal

• [33] Mr Huiarangi appeals his sentence under s 244 of the CPA. The court must allow the appeal if it is satisfied that for any reason there is an error in the sentence imposed on conviction and a different sentence should be imposed.^[8]
• [34] The grounds of Mr Huiarangi’s sentence appeal are that the starting point adopted by the Judge was too high; no uplift should have been imposed for prior offending; imprisonment was not the least restrictive sentence that was appropriate in the circumstances; and Mr Huiarangi’s sentence was not in parity with that of his co‑offender, Mr Raumati.

District Court sentencing

• [35] The Judge adopted a starting point of 15 months’ imprisonment. That was then uplifted by one month to account for Mr Huiarangi’s prior convictions for violent offending.^[9] Her Honour then applied a discount of four months to recognise the background factors contained in a cultural report prepared under s 27 of the Sentencing Act 2002 and the positive steps Mr Huiarangi had taken in custody.^[10] The end sentence was therefore one of 12 months’ imprisonment. This was to be followed by six months of standard and special release conditions.^[11]

Was the starting point too high?

• [36] The Judge was referred to two sentencing decisions involving assaults with intent to injure — Tamihana v R^[12] and Lopeti v Police.^[13] In Tamihana a starting point of 12 months’ imprisonment was adopted.^[14] In Lopeti a starting point of 10 months’ imprisonment was adopted.^[15]
• [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 second attacker striking an already injured and vulnerable complainant.^[16] Mr Huiarangi’s offending 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 starting point of 15 months’ imprisonment was therefore within the available range, although towards 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 assaults female, one of injuring with intent, one of threatening to kill or do grievous bodily harm, and two for indecent assault. This offending all took place against Mr Huiarangi’s former partner.
• [39] Mr Juran submitted that the Judge erred by imposing a one-month uplift to reflect these convictions. In particular, he submitted that they are somewhat historical and occurred in a completely different context, namely family violence against Mr 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 restrictive sentence than imprisonment.
• [42] Section 16 of the Sentencing Act provides that when considering the imposition of a sentence of imprisonment for any particular offence, the court must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community. Further, the court must not impose a sentence of imprisonment unless it is satisfied that the sentence is being imposed for any or all of the purposes set out in s 7(1)(a) to (c), (e), (f), or (g) of the Sentencing Act, that those purposes cannot be achieved by a sentence other than imprisonment, and that no other sentence would be consistent with the application of the 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 a presumption for or against commutation, either generally or for particular types of offence. The decision calls for the case by case exercise of judgment against the statutory principles and purposes of sentencing. Those principles and purposes sometimes point, as here, in opposing directions, meaning that the sentencing judge is called upon to assess whether home detention can respond adequately to the seriousness of the offending. As the Court explained in R v D (CA253/2008), it can be very difficult in a marginal case to articulate reasons for preferring one approach to another. In consequence, the margin of appreciation extended to sentencing judges is usually significant.

• [44] The difficulty confronting the Judge when sentencing Mr Huiarangi was that his criminal and bail history provides little confidence that he will comply with a community-based sentence.
• [45] Mr Huiarangi was scheduled to be sentenced on 3 September 2020, following an earlier adjournment for reasons beyond his control. The 3 September hearing was adjourned, however, because there was no pre-sentence report. This was because Mr Huiarangi had failed to attend a number of scheduled interviews with the report writer.
• [46] Mr Huiarangi then failed to appear at the adjourned sentencing date of 30 October 2020 and a warrant for his arrest was issued. He was brought before the court on 3 November 2020, readmitted to bail, and a new sentencing date was set down for 12 February 2021.
• [47] On 18 January 2021, Mr Huiarangi was arrested for breaching bail, but was readmitted 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 and brought before the Court on 23 February 2021. No application for bail was advanced on 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 was arrested for leaving his EM bail address without approval. He maintained that he did have 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 readmitted him to EM bail, but with a warning.
• [50] Mr Huiarangi breached his EM bail again on 14 and 17 April 2021, both times for failing to return to his EM bail address after an approved absence. On both occasions, he was again readmitted to EM bail, with further warnings.
• [51] Finally, Mr Huiarangi was again arrested for breaching EM bail on 19 April 2021. He was located at an address, having been involved in a family violence incident with his then partner. Police enquiries cast doubt on Mr Huiarangi’s excuse that he had left his EM bail address to attend the birth of his child; that he had got on the wrong 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 to be readmitted to EM bail. Mr Huiarangi remained in custody until his sentencing on 1 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 to comply with their sentence conditions. Mr Huiarangi’s repeated breaches of bail, failure to engage with the pre-sentence report writer, and failures to appear for sentence, indicate an entrenched disregard for court orders and court-imposed conditions. This raises serious concern as to his suitability for a community-based sentence. Given this background, a sentence of imprisonment was within the significant margin of appreciation afforded to the sentencing Judge in terms of Palmer.^[18]
• [53] Finally, we note that Mr Huiarangi was released from prison on 6 September 2021. He is now subject to post-release conditions. Should Mr Huiarangi continue to comply with those conditions then he will not return to prison. Mr Juran nevertheless urged us to impose additional post-release conditions on Mr Juran, and to extend the duration of his post-release conditions, on the basis that this may assist Mr Huiarangi’s rehabilitation.
• [54] We are satisfied that the post-release conditions imposed by the Judge are appropriate. Among other things, they include a condition enabling Mr Huiarangi’s probation officer to direct him to “attend and complete any counselling, treatment or programme”. 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 sentences between Mr Huiarangi and Mr Raumati. He noted that Mr Raumati was sentenced to home detention,^[19] even though the Judge acknowledged that Mr Raumati was the primary 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 is proportionate to their respective culpability. Beyond that, the sentences are only affected by factors personal to the offenders.^[21] There can be no argument that Mr Huiarangi should have received the same discounts as Mr Raumati. The discounts applied rely on the unique personal circumstances of each offender.

Result

• [57] The appeal against conviction is dismissed.
• [58] The appeal against sentence is dismissed.

Solicitors:
Crown Solicitor, Manukau for Respondent

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^[1] Crimes Act 1961, s 193. Maximum penalty of three years’ imprisonment.

^[2] R v Huiarangi [2021] NZDC 10919.

^[3] At [3].

^[4] 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].

^[7] We have listened to the relevant passage from the audio recording of the hearing and the inaudible word appears to be “koro”.

^[8] 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].

^[16] See generally Tamihana v R, above n 12, at [4].

^[17] Palmer v R [2016] NZCA 541 (footnotes omitted).

^[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].