Haapu v R [2014] NZHC 1273 (6 June 2014)

Last Updated: 25 July 2014

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2014-441-000021 [2014] NZHC 1273

BETWEEN	MATENE HAAPU Appellant
AND	THE QUEEN Respondent

Hearing:	4 June 2014
Counsel:	R B Philip for Appellant R Guthrie for Respondent
Judgment:	6 June 2014

_{JUDGMENT OF KATZ J}

This judgment was delivered by me on 6 June 2014 at 3:30 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Bate Hallett Lawyers, Hastings

_{Elvidge & Partners, Crown Solicitor, Napier}

HAAPU v THE QUEEN [2014] NZHC 1273 [6 June 2014]

Introduction

[1] The appellant, Matene Haapu, pleaded guilty in the District Court at Napier to two representative counts of receiving. He was sentenced by Judge A J Adeane to three years and nine months’ imprisonment, with a minimum period of imprisonment of two years. The sole issue on appeal is whether the Judge was wrong to impose a minimum period of imprisonment.

[2] An appeal against sentence is an appeal against the exercise of a discretion. Under s 250 of the Criminal Procedure Act 2011, the appeal must be allowed if an appeal court is satisfied that there was an error in the sentence imposed and that a different sentence should be imposed. If so, the court may set aside the sentence and impose another sentence, vary the sentence, or remit the sentence to the court that imposed it.

The offending

[3] Between 1 January 2011 and 27 May 2013, Mr Haapu acted as a receiver of stolen property for various burglars. Text message data obtained by the police revealed that the offending was well organised and premeditated. Mr Haapu would receive text messages from a number of different associates, detailing the stolen goods that they had available for purchase. On some occasions Mr Haapu would text associates to place “orders” for goods he was specifically looking for.

[4] The stolen property consisted of a diverse range of items, including clothing, cigarettes, computers, quad bikes, tools, hunting gear, trailers, chainsaws and landscaping equipment. The police estimate that the value of the stolen property Mr Haapu either conspired to receive, or actually received, was $177,696.31.

[5] In addition, Mr Haapu had a side business “re-birthing” stolen Toyota Hilux vehicles. He would buy wrecked or damaged Hilux vehicles off the internet and then use those vehicles’ identification details for stolen vehicles, in order to pass them off as legitimate. The Crown identified at least four vehicles Mr Haapu has “re-birthed” in this way.

The sentencing

[6] Mr Haapu was charged with two representative counts of receiving, one of which was a count of conspiring to receive.¹ The agreed summary of facts recorded his involvement in extensive receiving activities during the relevant period, as outlined at [3] to [5] above.

[7] The Judge noted that Mr Haapu is now 31 and has a 15 year history of dishonesty, although there is little record of recent offending. The Judge considered that this was probably due to Mr Haapu settling down in terms of his lifestyle, but noted that it could also be contributed to by the fact that in 2003 Mr Haapu was sentenced to four years six months’ imprisonment for aggravated robbery. (It appears that he was released from prison in late 2005).

[8] The Judge considered Mr Haapu’s submission that he is a good worker and colleague and that he was motivated to provide for his family. He observed, however, that there are two sides to his character. One side is a deeply dishonest person. The offending was not merely passive. As the total property involved exceeded $170,000 Mr Haapu was ‘a big player’.

[9] The Judge adopted a starting point of five years. That sentence was discounted by 25 per cent, to reflect Mr Haapu’s guilty plea. This resulted in an end sentence of three years and nine months imprisonment. A minimum period of imprisonment of two years was imposed.

Did the Judge err in imposing a minimum period of imprisonment?

The statutory requirements for imposing a minimum term of imprisonment

[10] A minimum term of imprisonment can be imposed on sentences of more than two years where the Court is satisfied that the ordinary non parole period is

¹ An offence under s 246 of the Crimes Act 1961 punishable by up to seven years’ imprisonment.

insufficient for all or any of the following purposes:²

(a) holding the offender accountable for the harm done to the victim and the community by the offending:

(b) denouncing the conduct in which the offender was involved:

(c) deterring the offender or other persons from committing the same or a similar offence:

(d) protecting the community from the offender.

[11] In R v Brown the Full Court of Appeal stated that:³

[T]he power to impose a minimum sentence for a serious offender must be intended for cases of such seriousness that the court considers that, even if there is no danger to the community, release after one-third of the sentence has been served would represent insufficient denunciation, punishment and deterrence in all the circumstances. That means that sentencing judges are empowered, in effect, to over-ride the general policy that all offenders, including violent offenders, are to be eligible for parole after serving one- third of the sentence imposed.

The Judge’s imposition of a minimum period of imprisonment

[12] The Crown submitted at the sentencing hearing that a minimum period of imprisonment should be imposed for the following reason:

Given the circumstances of the offending and the harm the defendant has caused to so many people within his community both directly and indirectly by his offending it is appropriate that the Court order that a minimum period of imprisonment is served.

[13] Counsel for Mr Haapu opposed the imposition of a minimum period of imprisonment.

[14] The Judge concluded, however, that a minimum period of imprisonment of two years was warranted. The primary reason given for this was the “pressing need”

² _{Sentencing Act 2002, s 86(2).}

³ R v Brown [2002] 3 NZLR 670 (CA) at [23].

in the Hawkes Bay/Gisborne community to take steps to suppress the commercial occurrence of burglary (burglars acting commercially and earning an easy living). In this respect, the Judge had earlier observed in his Sentencing Notes that:

[8] The police have recently supplied statistics concerning the rates of offending per head of population throughout New Zealand Mr Haapu. So far as burglary is concerned, Hawke’s Bay/Gisborne, the Eastern policing region has the unfortunate distinction of leading the pack. Burglaries are more prevalent per head of population throughout this area than even in Central Auckland which has traditionally been the hotbed of such activity.

[15] The Judge noted that the position of receivers is facilitative of burglary offending. Receiving stolen property is accordingly as deplorable as the offending of the primary burglar. The Judge’s view was that there is a need to deter and denounce this kind of offending in “this community at the moment”.

[16] The Judge also considered that there was a likelihood that Mr Haapu would reoffend, as he had seven sets of prior dishonesty convictions, which had not prevented him from continuing to behave dishonestly. The Judge accordingly concluded that it was necessary to impose a minimum period of imprisonment in order to ensure “that the community is safe from your activities, at least for a moderate period of time”. A minimum non-parole period of two years was accordingly imposed.

Submissions on appeal

[17] Mr Haapu submitted that the Judge’s decision to impose a minimum period of imprisonment was unduly influenced by his concern with the burglary statistics in the Hawke’s Bay. This prevented the Judge from correctly weighing that concern against other factors, such as Mr Haapu’s guilty plea, his personal circumstances, his remorse, his lack of convictions since 2003 (during which time he has settled down and started a family) and the fact that the current offending was not outside the range for offending of its kind. It was submitted that if the Judge had taken these factors into account he would not have imposed a minimum period of imprisonment. The Judge’s focus should have been on denouncing the conduct of Mr Haapu for the actual offences he committed, rather than punishing him for the criminal activity of others in the region.

[18] The respondent submitted, on the other hand, that the Judge accurately identified a clear and pressing need to denounce and deter this kind of offending in the Hawke’s Bay community. The normal non-parole period, which would be 15 months in this case, would be insufficient to meet the need for denunciation and deterrence. Further, the persistence of Mr Haapu’s prior offending means that his prospects for reform following completion of his sentence were questionable. A minimum term would protect the community from the risk of Mr Haapu reoffending for a slightly longer period (nine months) than would be the case if Mr Haapu was granted parole at the first available opportunity.

Discussion

[19] I have been persuaded that the Judge did err in concluding that a minimum period of imprisonment was warranted in all the circumstances of this case.

[20] Turning first to the issue of the extent to which it was appropriate to take into account the prevalence of burglary in the Hawke’s Bay/Gisborne region, I note that the Court of Appeal in Christofides v R held that sentencing levels can be adjusted where there is a regional problem which requires specific deterrence.⁴ However, the Court cautioned that:⁵

We accept that judges at first instance may perceive that a particular type of offending has significantly increased in volume and/or scale in their locality. Before any such perception is acted upon, however, it is important to obtain information confirming that the perception is correct. Unless there is access to accurate and relevant statistical information, judges have no reliable means of ensuring that is the case. If sentencing levels are increased in a particular locality based on perception alone, there is a risk that sentencing levels in that locality will become out of kilter from those being applied in the remainder of the country, without any adequate justification. That could result in injustice for those offenders sentenced in that area.

For that reason it should generally be for the Crown to indicate that it considers a prescribed sentencing level to be too low having regard to circumstances that have arisen in a particular locality. The Crown has access to national statistics, and will be able to provide the court with data justifying its stance. It will then be for the court to determine whether the submission has merit.

⁴ _{Christofides v R [2011] NZCA 126 at [12].}

⁵ At [14]-[15]

[21] In this case the Crown did not submit at sentencing that there was a regional issue with burglary offending that required a more severe sentencing response. Nor did the statistics the Judge relied on in reaching that conclusion emanate from the Crown. If the matter had been raised by the Crown, then the defence would have been forewarned of the issue and would have been able to address it in submissions, including (if appropriate) challenging the robustness of any statistics relied upon. For example, how current are the relevant statistics? Does Hawke’s Bay lead other regions in this category of offending by a significant margin or are any differences fairly minor? Have the statistics been “skewed” by any particular factors – for example one or two prolific offenders who have now been dealt with? Are the most recent statistics an aberration for any other reason?

[22] Counsel advised that the issue of whether a sterner response was required due to a particular regional problem with burglary offending was not raised during the sentencing hearing by either the prosecution or the Judge. The first mention of the issue was during the course of the Judge’s sentencing comments. The Judge did not specify what particular statistics he was relying on.

[23] The statistics relied upon may well be robust and identify a serious regional problem that needs addressing. However, in the absence of counsel having an opportunity to consider and test the relevant information, Mr Haapu must be given the benefit of the doubt on this issue. I therefore conclude that this factor should be put to one side in considering whether a minimum term of imprisonment was justified.

[24] I now turn to consider the other ground the Judge relied on as justifying the imposition of a minimum period of imprisonment. In particular, the Judge considered that there was a likelihood that Mr Haapu would reoffend, as he had seven sets of prior dishonesty convictions. The Judge accordingly concluded that it was necessary to impose a minimum period of imprisonment in order to ensure “that the community is safe from your activities, at least for a moderate period of time”.

[25] Would this ground, on its own, have justified the imposition of a minimum period of imprisonment? Counsel for Mr Haapu submitted that it would not.

[26] In this context it is relevant that Mr Haapu’s most recent prior dishonesty conviction was in 2003. His prior dishonesty convictions accordingly relate to offending that is more than ten years old, dating from his youth (when he was aged

21 and under). Changes in Mr Haapu’s life since 2003, such as his stable employment, relationship, young children and community involvement all impact on his risk profile. Further, the pre-sentence report writer noted that Mr Haapu appeared genuine in his remorse for the victims of his offending. His risk of re-offending was assessed as moderate, rather than high. Counsel for Mr Haapu further submitted that his offending on this occasion, while serious, was not “outside the range” for this type of offending.

[27] It appears from the Judge’s Sentencing Notes that his primary rationale for the imposition of a minimum period of imprisonment was the need for a specific regional response to the levels of burglary offending in the Hawke’s Bay/Gisborne area. That consideration must be put to one side, for the reasons I have outlined above. Once that factor is taken out of the equation, however, it is far from clear that that a minimum period of imprisonment is justified, based on the extent of Mr Haapu’s current offending, considered against the background of his prior dishonesty offending.

[28] Serving 15 months’ imprisonment before an appearance before the Parole Board is a significant period of time for Mr Haapu to reflect on his circumstances and the need to change his ways. Further, there is no guarantee that Mr Haapu will be released after 15 months. Rather, it is at that stage that the Parole Board would first be able to reach its own conclusions surrounding whether Mr Haapu is ready to be released in to the community.

[29] I accept counsel for Mr Haapu’s submission that undue emphasis appears to have been placed on the locality of the offending. Taking into account Mr Haapu’s guilty plea, his apparent remorse, the lack of any dishonesty offending since 2003, and the changes in Mr Haapu’s life since then, the imposition of a minimum period of imprisonment is not, in my view, warranted.

Result

[30] The appeal is allowed and the minimum period of imprisonment of two years is quashed.

Katz J