Henare v R [2017] NZHC 2397 (29 September 2017)

Last Updated: 25 October 2017

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2017-412-000035

CRI-2017-412-000036 [2017] NZHC 2397

BETWEEN	TYRONE KAMAL HENARE Appellant
AND	THE CROWN Respondent

Hearing:	13 September 2017
Appearances:	J A Westgate for the Appellant S L Graham for the Police
Judgment:	29 September 2017

_{JUDGMENT OF NATION J}

[1] Mr Henare was sentenced to two years, four months’ imprisonment on one charge of unlawfully taking a motor vehicle, one charge of aggravated driving while disqualified and one charge of receiving.¹ He appeals that sentence, saying it is manifestly excessive.

The offending

[2] The charges arose from two separate incidents. Mr Henare was charged jointly with a Joshua McLaughlan with receiving a motorcycle. A number of tools and a motorcross bike valued at $11,000 were taken from a garage in October 2015. Mr Henare and McLaughlan sold the motorcycle around that time to someone in

_{Dunedin and delivered it to that person on 24 October 2015. Mr McLaughlan told}

¹ _{R v Henare [2017] NZDC 11801.}

HENARE v R [2017] NZHC 2397 [29 September 2017]

the Police that Mr Henare had asked if he wanted to buy a motorcycle. Mr McLaughlan then arranged to sell the motorcycle for $1,300 and arranged for Mr Henare to take it to the purchaser. Mr Henare was the person riding the motorcycle when it was delivered.

[3] The second incident occurred in May 2016 when Mr Henare was on bail for the receiving charge. He went to a farm, on a rural road, more than 30 kilometres from Dunedin, where a utility vehicle was parked with the keys in the ignition. He drove the vehicle out of the property and over 100 kilometres from the Woodside address to Mataura, where he was finally sighted and confronted by the owner who had given chase when he discovered the vehicle was missing. There was a brief struggle but the owner managed to secure the vehicle. At the time, Mr Henare was disqualified from driving following a drink driving conviction.

[4] Mr Henare told police he had been taking the vehicle for a ‘test drive’.

[5] Initially, Mr Henare pleaded not guilty and elected trial by Judge alone. There was then a sentencing indication on 21 October 2016 which Mr Henare rejected, before changing his election to trial by jury. At a very late stage Mr Henare entered guilty pleas.

District Court decision

[6] Judge Phillips recounted the facts before describing the effect the offending has had on the victims, in particular changing the way the vehicle owner “lives and operates as a farmer.” The Judge noted the need for denunciation and deterrence, particularly in light of Mr Henare’s long criminal history, including extensive driving offending and some serious violent offending. The Judge expressed reservations about the pre-sentence report which, while assessing the appellant as a high risk of reoffending, recommended community work. His Honour said he “discount[ed] the whole report” as it had “not been properly and fully investigated”.

[7] His Honour noted the need for parity with the co-offender’s sentence on the receiving charge, although commented that such sentence was “too light”. The Judge adopted a nine month starting point on that charge. On the unlawful taking

charge he adopted a starting point of 15 months, saying “it was blatant, it was planned in my inference from the facts”.

[8] He added a four month uplift for the driving while disqualified charge, noting that this was Mr Henare’s fourth conviction of that type. He added a further three months for the fact that the unlawful taking and driving while disqualified offences happened while on bail, and a further three months for his previous criminal history. That took the total to 34 months.

[9] The Judge was of the view that no discount should be given for the appellant’s willingness to attend restorative justice, as no restorative justice conference in fact occurred

[10] The Judge allowed a discount of 10 per cent for the guilty pleas which he said could not have been any later. He said that this discount also took into account other matters mentioned by Mr Henare’s counsel. Finally, in assessing the totality of the offending, the Judge reduced the overall sentence by a further two months to reach the end sentence of two years, four months. Reparation of $1,630 was also ordered.

Jurisdiction and principles on appeal

[11] The appellant appeals as of right.² This Court can only allow the appeal if it is satisfied there is an error in the sentence imposed and that an alternative sentence should be imposed.³ If the sentence under appeal can be properly justified, having regard to relevant sentencing principles, this Court cannot substitute its own views for those of the sentencing Judge. The sentence must be either manifestly excessive or inappropriate if the sentencing Judge’s discretion is to be interfered with.

[12] It is not enough that the Judge made an error in his or her reasoning: the focus is on the sentence imposed rather than the process by which the sentence was

_reached.⁴

² _{Criminal Procedure Act 2011, s 244.}

³ _{Criminal Procedure Act, s 250.}

⁴ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

Submissions

Appellant

[13] Mr Westgate, for Mr Henare, objected to two aspects of the sentence. First, he said the 15 month starting point for the unlawful taking was too high. In support of this, he cited this Court’s decision in De Seymour v Police, where a starting point of 24 months was reduced to 12 months on appeal. In that case, an item of $12,000 was taken and returned in such a state that $11,000 reparation was ordered.⁵ Here, he submitted, the offending was opportunistic, unsophisticated and less serious than that in De Seymour.

[14] Second, Mr Westgate submitted that more than 10 per cent was appropriate in terms of discounts. Referring to the sentencing indication, he said there should have been a further 10 per cent discount for the offer to attend restorative justice and the positive pre-sentence report.

Respondent

[15] Ms Graham cited a number of cases which she claimed showed that a broad range of sentence lengths was available to the Judge in respect of the unlawful taking charge, and that 15 months was within range. Here, she said, there were a number of aggravating features, including the entering of a residential property, the high value of the item taken, the impact on the victim and premeditation.

[16] As to the discounts, Ms Graham said that, while the Judge was wrong to bundle the guilty plea discount with other factors, in substance, the Judge rejected the other factors and applied the correct discount for the guilty plea. She said there is no obligation on sentencing judges to provide a discount for willingness to attend restorative justice. Further, the Judge was correct to find no discount was appropriate for a ‘positive’ pre-sentence report, and the appellant has failed to show

_{why this was relevant.}

⁵ De Seymour v Police [2013] NZHC 2232.

Analysis

Discounts

[17] There is no requirement on a sentencing Judge to provide a discount for an offer to attend restorative justice. It is a discretionary decision. Here, especially in light of the fact the appellant has shown little remorse, the Judge was entitled to exercise that discretion in the way he did. With the Criminal Procedure Act now allowing for involvement in the restorative justice process as a matter of course, a mere indication that someone is willing to participate in the process may, of itself, mean little. That willingness is to be given more weight when it is coupled with other evidence that shows an offender has taken responsibility for his offending and wishes, in a meaningful way, to atone for it as best he can. A mere indication that he will participate in the process may reveal little of this. There was nothing in the probation officer’s report to suggest Mr Henare was remorseful for his offending. When interviewed for that report, he still claimed, quite untruthfully, that he had taken the stolen vehicle for a test drive and was challenged by the owner.

[18] Similarly, it was not incumbent on the Judge to provide a discount for a “positive pre-sentence report”. Pre-sentence reports exist to assist the Judge in selecting an appropriate sentence. Here the Judge did not find the pre-sentence report useful and, given his (in my view reasonable) conclusions about its inadequacies, it would be somewhat odd for him to have used it as the basis for a discrete discount. It is also difficult to discern any information in the report that was positive for Mr Henare. It did refer to Mr Henare identifying the birth of his first child as a factor for future change but the report said this child was now aged three. His pattern of previous offending had continued over the three years since the child’s birth. The 10 per cent discount was, on my reading of the sentencing note, entirely for the guilty pleas. Those pleas were entered at a very late stage. Mr Henare could not have been entitled to any more than a 10 per cent discount for those guilty pleas given the earlier steps he had taken in the proceedings.

Starting point for unlawful taking

[19] There is no tariff judgment for unlawful taking. The maximum penalty is seven years’ imprisonment.

[20] I agree with Ms Graham, for the respondent, that there were a number of aggravating features of this offending. The high value of the vehicle and the distance travelled with it are relevant, as is the fact that it was taken from the victim’s property. The vehicle was parked outside the home on a farm and taken at 5.30 in the evening when the owner or members of his family were likely to be at home, so there was risk of confrontation.

[21] The Judge was justified in dealing with this as premeditated offending. Mr Henare had to have been driven to the address from where he lived in Dunedin. I acknowledge the offending in De Seymour, where a 12 month starting point was adopted, had some similarities to the present case.⁶ There, the vehicle was for sale and the offender took it for a test drive so the original taking was not brazenly unlawful in the way that happened here. The offender did not return the car and

made alterations to it, including spray painting it and removing identifying features. It is, however, difficult to give Mr Henare credit for the fact that the stolen vehicle was promptly recovered and undamaged. That was achieved because the owner, with the assistance of friends, tracked the vehicle as it was driven through Milton and then found it in Mataura. Mr Henare had driven the vehicle some 140 kilometres from where he had taken it. There is no knowing what he would have done with or to the vehicle had he not been discovered. At the time, he was on bail for his role in selling the motorcycle which had been stolen in October 2015.

[22] In O’Sullivan, a starting point of 36 months’ imprisonment was reduced to 12 months on appeal.⁷ In that case, the appellant had taken a car parked on the street and took it for a joy ride. He was pursued by police for some 17 kilometres and reached speeds of over 150 kilometres per hour before he was finally stopped and apprehended. There, the taking lacked the premeditation involved in Mr Henare’s

_{case, Mallon J commenting there was “nothing to suggest that taking the car was}

⁶ _{De Seymour, above n 5.}

⁷ O’Sullivan v Police [2015] NZHC 2032.

anything other than impulsive behaviour”.⁸ It also did not occur in the particular

circumstances that are an aggravating feature of Mr Henare’s offending.

[23] In Duxfield v Police, cited by the respondent, the offender faced two charges of theft and one charge of unlawful taking after he broke into three cars over a four day period.⁹ For the charge of unlawful taking alone a starting point of 18 months was not disturbed on appeal. In Muir v Police, the offender was test driving a vehicle and did not return it.¹⁰ He removed the plates and continued to use it for several days. A starting point of 30 months was reduced on appeal to 15 months.

[24] Having regard to those cases, the starting point of 15 months adopted by the

Judge was within the range available to him.

[25] The uplift which the Judge adopted for the receiving charge was nine months. That was to achieve parity with the sentence imposed upon Mr McLaughlan, although Judge Phillips considered the sentence for Mr McLaughlan, consistent with an earlier indication which that offender had received, was “too light”. I agree. The starting point uplift on account of that receiving could have been higher. The information in the summary of facts for the receiving charge indicated that Mr Henare had instigated their joint involvement in the sale of the motorcycle. The receiving was closely proximate to the theft of that item. The motorcycle was of significant value. There was no information in either the pre-sentence report or through submissions of Mr Henare’s counsel to suggest there were any mitigating circumstances relating to Mr Henare’s involvement in that offending.

[26] Mr Westgate took no issue with the uplifts for the receiving charge or the four month uplift for the disqualified driving charge. As to that, the Judge considered that the starting point for a fourth conviction for driving while disqualified would normally be six months’ imprisonment. Mr Westgate took no issue with the three month uplift for the fact the unlawful taking occurred while Mr Henare was on bail on the receiving charge, nor with the further uplift on account of Mr Henare’s

_{extensive criminal history. That history included 10 convictions for unlawfully}

⁸ _{At [20].}

⁹ _{Duxfield v Police [2015] NZHC 3018.}

¹⁰ Muir v Police [2015] NZHC 1425.

taking a motor vehicle, including one from 2014 when he was sentenced to 13

months’ imprisonment, and three convictions for receiving from 2012.

[27] In this instance, there were two distinct separate instances of serious offending. The Judge allowed a further discount of two months for totality. The separate offending was dealt with at the same time only because of Mr Henare’s delay in pleading guilty to the receiving charge.

Conclusion

[28] Judge Phillips stood back, looked at the various uplifts, considered the offending and the appropriate sentence in its totality and imposed the sentence he did. I do the same. Mr Henare has not demonstrated the sentence he received was manifestly excessive. His appeal is therefore dismissed.

Solicitors:

J A Westgate, Dunedin

Crown Law, Wellington.