Henare v R [2018] NZHC 900 (1 May 2018)

Last Updated: 22 May 2018

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CRI-2018-416-3 [2018] NZHC 900

KAREMOANA EMILIO HAAMI HORI TUNNY HENARE

v

THE QUEEN

Hearing:	1 May 2018
Counsel:	N Wright for Appellant C Gullidge for Crown
Oral Judgment:	1 May 2018

ORAL JUDGMENT OF CHURCHMAN J

Introduction

[1] Mr Henare pleaded guilty to seven separate charges which arose out of five separate incidents. The charges included:

(a) unlawfully taking a motor vehicle;¹

(b) theft (under $500);²

(c) attempting to pervert the course of justice;³

1. Crimes Act 1961, s226(1). Maximum sentence of seven years’ imprisonment. Offence occurred on 10 June 2017.
2. Crimes Act 1961, s 219 and 223(d). Maximum sentence of three months’ imprisonment. Offence occurred on 10 June 2017.

³ Crimes Act 1961, s 117(e). Maximum sentence of seven years’ imprisonment. Offence occurred

HENARE v R [2018] NZHC 900 [1 May 2018]

(d) failure to answer district court bail;⁴

(e) giving false details;⁵

(f) resisting arrest;⁶ and

(g) a second charge of giving false details (on a subsequent date).⁷

[2] Mr Henare originally messaged his ex-partner asking her to drop the first charge of unlawfully taking a motor vehicle, and that resulted in the charge of attempting to pervert the course of justice. He subsequently pleaded guilty to that charge. Although Ms Wright, for the appellant, has made the point that a lesser charge such as intimidation may have been laid, the Court is obliged to deal with the charges as they were laid and pleaded to.

[3] On 16 January 2018 in the Gisborne District Court, Judge Cathcart sentenced Mr Henare to 14 months’ imprisonment with leave to apply for home detention.⁸

[4] On 26 March 2018, Mr Henare’s sentence was cancelled and substituted with a five months and two weeks’ sentence of home detention.⁹ This took into account the proportion of the sentence of imprisonment Mr Henare had already served. This has rendered the final sentence appealed against effectively a sentence of seven months’ home detention (what Mr Henare would have been sentenced with if he had originally received a sentence of home detention). There appears to be no challenge to the availability and suitability of home detention as sentence.

on 29 June 2017.

4. Bail Act 2000, s 38. Maximum sentence of one year imprisonment or a fine of $2,000. Offence occurred on 19 July 2017.
5. Land Transport Act 1998, s 44. Maximum sentence of $10,000 fine. Offence occurred on 29 July 2017.
6. Summary Offences Act 1981, s 23(a). Maximum sentence of three months’ imprisonment or a fine of $2,000. Offence occurred on 25 August 2017.
7. Land Transport Act 1998, s 44. Maximum sentence of $10,000 fine. Offence occurred on 25 August 2017.

⁸ R v Henare [2018] NZDC 636.

⁹ R v Henare [2018] NZDC 6294 [Henare home detention].

[5] Ms Wright, on behalf of Mr Henare, appeals the sentence on the basis that the sentence of imprisonment was manifestly excessive because the starting point adopted for the lead charge of attempting to pervert the course of justice was too high and in particular it was too high in relation to a number of cases which she has taken the Court through which she says involve similar factual backgrounds where the starting point has been lower than that applied by the Court here.

[6] The Crown opposes the appeal and argues that the starting point adopted by sentencing Judge for the lead charge of attempting to pervert the course of justice was well within the range available. The Crown also points to the fact that it is the totality of the offending that is relevant to the ultimate sentence and not just the lead charge itself. Mr Gullidge says that the end sentence was not substantially or significantly more severe than it ought to have been having regard to the totality of the offending and the overall circumstances.

Factual background

[7] There were five separate incidents from which the present charges arise and I address each of them sequentially.

10 June 2017: unlawful taking of a motor vehicle and theft (under $500)

[8] The first of these incidents occurred on 10 June 2017 and resulted in the charges of the unlawful taking of a motor vehicle and theft (under $500). Mr Henare and the complainant (who were in a relationship at the time) had begun driving in the morning from Gisborne to Whanganui. Mr Henare was meant to be dropped off in Whanganui with a relative, but once they arrived Mr Henare told the complainant that his plans had fallen through. The complainant told Mr Henare she was not going back to Gisborne for a few days. Mr Henare then asked the complainant if he could be dropped off in Palmerston North at another relative’s home. The complainant agreed to do this.

[9] However, once arriving at Palmerston North, the complainant got out of the car to go to the bathroom leaving the keys in the ignition. Mr Henare got into the driver’s seat and drove the car back towards Gisborne.
[10] On his way back to Gisborne, Mr Henare stopped in Wairoa because he needed more petrol. He pulled into a petrol station where he put $51.23 worth of petrol into his car with no intention of paying. He then got back into the car and drove away.

[11] On 14 June 2017, some four days later, Mr Henare arrived at a mutual friend’s home in Gisborne where he left the car.

[12] On 21 June 2017, he was located, arrested and interviewed. He admitted he took the car without permission to drive to Gisborne, and further admitted he stole the petrol. He explained his behaviour by saying he wanted to get home and didn’t have any other way to do so.

29 June 2017: attempting to pervert the course of justice

[13] On 28 June 2017, Mr Henare appeared before the Gisborne District Court on the two charges mentioned above. One of the conditions of Mr Henare’s bail was that he was not to contact the complainant in relation to the theft and motor vehicle offending.

[14] On the evening of 29 June 2017 which was the day after Mr Henare had been bailed with the non-association provision, Mr Henare sent a Facebook message to the complainant which said, “Drop those charges bro”. About 40 minutes later he sent another message which said, “Bae did you hear me”. The complainant did not respond to any of these messages but said she was afraid because Mr Henare knew where she lived and worked.

19 July 2017: failure to answer District Court bail

[15] On 19 July 2017, Mr Henare failed to appear at court for the offences that he had been bailed on. He therefore failed to answer his District Court bail.

29 July 2017: giving false details

[16] On 29 July 2017, Mr Henare was driving a car in Gisborne. He was pulled over and asked to provide his details. He gave the details of a first cousin who was disqualified from driving. The car was therefore impounded because of his cousin’s
disqualified status, and he was issued with a summons to appear on 23 August 2017. Mr Henare did not appear in court on 23 August 2017 because he had given his cousin’s details. The Gisborne District Court issued an arrest warrant for Mr Henare’s cousin because of this.

25 August 2017: giving false details and resisting arrest

[17] On 25 August 2017, Mr Henare was observed acting suspiciously on CCTV by the police in Gisborne. A constable located and spoke to him, when asked for his details, he again gave his first cousin’s details. These details were checked, and the constable was alerted to the fact that there was an active arrest warrant out of Mr Henare’s cousin (arising from Mr Henare previously using his cousin’s name).

[18] When Mr Henare was told he was under arrest and his rights were read to him, he took a small bag he was wearing and threw it away from where he was standing. The constable went to retrieve the bag, and Mr Henare ran away. He ran into McDonalds, entered a staff only area and tried to lock the door. This did not work, and he was taken into custody. He continued to use his cousin’s name until his DNA, fingerprints and photograph were taken. He finally admitted who he was.

[19] His explanation for giving false details was that he knew there was an arrest warrant out for him under his own name.

Details about Mr Henare

[20] Mr Henare is 21 years of age. He had six previous convictions, coming to a total of 13 including the convictions presently at issue. He committed his first offence in 2013. The only relevant offending for the present matter are three convictions for breaching his standard or special release conditions.

District Court decision

[21] The sentencing Judge made it very clear from the outset that attempting to pervert the course of justice is a serious offence because it “strikes at the heart of the administration of justice when offenders try dissuade complainants and witnesses from
coming forward to Court.”¹⁰ The Judge did, however, recognise that Mr Henare’s offending was not of the most serious kind.¹¹ Indeed in his oral submissions today, Mr Gullidge acknowledged that as an example of this type of offending, this case would fall toward the lower end of the spectrum.

[22] I note that the messages sent were in breach of the bail conditions as to non- association, but also note that beyond the two messages sent by Facebook some 40 minutes apart, there was no other contact with the complainant.

[23] The sentencing Judge agreed with the Crown that the charge of attempting to pervert the course of justice was the lead offence,¹² and there is no challenge to that in this appeal. He began with a starting point of 16 months’ imprisonment in relation to the lead offence.¹³ In doing so the sentencing Judge expressly rejected both the starting point of two years’ imprisonment put forward by the Crown, and six to nine months’ imprisonment put forward by Ms Wright for Mr Henare. The Judge stated the Crown’s starting position was too high and it did not consider the core facts. He also said he felt the defence’s position in terms of starting point was too lenient and did not consider the serious nature of the offence, or the principles that govern sentencing.

[24] A four-month uplift was applied for the balance of the offending, expressly excluding the charges of giving false details which are only punishable by a fine.¹⁴ The sentencing Judge stated that Ms Wright, for Mr Henare, recognised that an uplift should be given to reflect the other charges.¹⁵

[25] Indeed, in response to a question from me, Ms Wright confirmed that no issue was taken with any of the uplifts or reductions applied by the sentencing Judge and the only matter in issue in this appeal was whether or not the starting point for the index offence was appropriate.

¹⁰ R v Henare, above n 8, at [1].

¹¹ At [6].

¹² At [10].

¹³ At [13].

¹⁴ At [15].

¹⁵ At [10].

[26] An uplift of one month was given to recognise that some of the offending had occurred while Mr Henare was on bail, and this ultimately lead to a sentence of 21 months’ imprisonment.

[27] A discount of two months and two weeks’ imprisonment was applied as a recognition of Mr Henare’s youth, and I agree with Mr Gullidge’s submission that this was a generous discount. In giving this discount, the Judge also recognised that it was a discount that was reduced slightly because of Mr Henare’s conviction history and that no uplift had been given for this matter. The Judge did stress the impact that prison can have on young offenders, and express his concern that Mr Henare had already served a prison sentence when he was 17 years of age.¹⁶

[28] A further discount of one month was applied to recognise Mr Henare’s remorse. The Judge noted that although he thought Mr Henare’s remorse was genuine, this discount was reduced because there was little objective evidence to show that he was truly remorseful.¹⁷

[29] Finally, a 20 per cent (or three months and two weeks’ imprisonment) discount was applied to recognise Mr Henare’s guilty plea. This brought a final end sentence to 14 months’ imprisonment.

[30] The Crown submitted that home detention was not sufficient in this case because of the need for deterrence and denunciation. The Crown further stressed that Mr Henare had previously been convicted for non-compliance with release conditions. The Judge noted that it was well established that home detention could meet the principles of deterrence and denunciation, depending on circumstances. The Judge stated that no address had formally been advanced for the purposes of a home detention sentence, so that further inquiries were needed. Mr Henare was given leave to apply for home detention which he did and which was subsequently granted.¹⁸

[31] Mr Henare was sentenced on all of the offending concurrently and the sentences were effectively:

¹⁶ At [17].

¹⁷ At [20].

¹⁸ At [27].

(a) one months’ imprisonment for theft (under $500) and reparation of
$51.23;

(b) four months’ imprisonment for unlawfully taking a vehicle;

(c) one months’ imprisonment for resisting a constable;

(d) conviction and discharge for both charges of giving false details; and

(e) one month imprisonment for failure to answer district court bail.

[32] This produced a final sentence of 14 months’ imprisonment and $51.23 in reparation.

Home detention decision

[33] On 26 March 2018, Mr Henare had his sentence of imprisonment cancelled, and a sentence of home detention substituted for it. This sentence was five months and two weeks recognising the portion of the sentence that Mr Henare had already served in prison. Therefore, this appeal is effectively against the seven months of home detention that Mr Henare would have been sentenced to.

Approach to appeal

[34] The appeal is under s 250 of the Criminal Procedure Act 2011. It is an appeal against sentence and an appeal against a discretion. An appeal against sentence must be allowed if the Court is satisfied for any reason, there is an intrinsic error in the sentence imposed and a different sentence should be imposed.¹⁹ The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.²⁰

¹⁹ Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482.

²⁰ Ripia v R [2011] NZCA 101 at [15].

Mr Henare’s position

[35] Ms Wright, for Mr Henare, submits that the sentence was manifestly excessive because the starting point of 16 months’ imprisonment adopted for the lead charge was too high. She stressed that the starting point should have been nine to 11 months at its absolute maximum in light of other similar authorities.

[36] Ms Wright began by canvasing the cases that she had cited at the original sentencing including the R v Churchward²¹ and stating that there had been no reference to this case by the sentencing Judge. She argued that this case was factually similar to the present case in that it involved text messaging. It also provided useful guidance as to what factors should be considered in establishing the seriousness of the offending. A starting point of 12 months was adopted in that case, which Ms Wright argues is more serious than the present case. In Churchward, the defendant sent a text requesting the complainant sign a statement saying he didn’t assault them, called them repeatedly, and threatened that he would a grudge forever if the complainant did not comply.

[37] Ms Wright then referred to other additional authorities including, R v Bishop and argued that this case provided a useful analysis of the relevant authorities.²² It held that a starting point of 10 months’ imprisonment was appropriate for a spontaneous outburst by the defendant. She then moved on to R v McIlroy which she characterised as more serious and therefore distinguishable.²³ The starting point adopted in this case was 12 months’ imprisonment. It was aggravated by the fact that the offending occurred in a domestic violence context, and began immediately after the defendant’s release from Court against a bail condition not to associate. A number of requests were made to drop the charges.

[38] Ms Wright put forward her case, based on the above authorities, that in the context of these three cases the starting point of 16 months’ imprisonment is too high. She submits that when an analysis of analogous authorities is undertaken, the Court

²¹ R v Churchward CA 439/05, 1 March 2006.

²² R v Bishop HC Gisborne CRI 2010-016-2882, 29 July 2011.

²³ R v McIlroy [2017] NZDC 2858.

should intervene to adjust the starting point adopted by the sentencing Judge and correct Mr Henare’s sentence to avoid an unjust and manifestly excessive end result.

[39] Ms Wright contends that at most, Mr Henare should have faced a starting point of nine to 11 months’ imprisonment.

Crown’s position

[40] During the course of the hearing, Mr Gullidge referred to the decision in Ledgerwood v R.²⁴ This is a decision in April of last year of Dunningham J in Dunedin. He also referred to the facts of that case which do not appear from the High Court’s judgment but Mr Gullidge had available to him a copy of the decision of Judge Crosbie and he read extracts from that decision. The facts appear to include swearing, abuse, the use of the term “nark” and a challenge to a fight. That case involved a starting point of three years, substantially in excess of the starting point used in the present case, and to that extent appears to be out of the standard range of starting points used in all of the other cases that the parties have referred to me. It is, on its own, a troubling case because it does appear to be so inconsistent with the other relevant authorities that the parties had relied on, particularly when it was acknowledged as only being a ‘moderately’ serious example of that type of offending. I am bound to say that a starting of three years does not seem to be consistent with any of the authorities that I am aware of in relation to an instance where there has not been any actual violence, any sustained attempt at interference, or an actual impact on the willingness or otherwise of a witness to give evidence.

[41] The Crown submits that the appeal ought to be dismissed. Mr Gullidge said that the starting point of 16 months’ imprisonment was well within the range that was available, and that the end sentence was not substantially more severe than it should have been.

²⁴ Ledgerwood v R [2017] NZHC 822.

Relevant law

[42] Mr Gullidge again listed the relevant law on sentencing in cases of attempted to pervert the course of justice. He highlighted that the cases indicated that there was no tariff case for attempting to pervert the course of justice, and drew my attention to the fact that the Court in the case of R v Churchward recognised that all but the most exceptional cases will be met with moderately lengthy terms of imprisonment.²⁵ I note that these comments have been reinforced in the more recent Court of Appeal decisions such that of McQuilkin v R²⁶ where the Court said:²⁷

[14] The maximum penalty for attempting to pervert the course of justice is seven years’ imprisonment. There is no tariff judgment, it being well settled that the circumstances in which such offending occurs vary so widely that there would be insufficient utility in attempting to grade appropriate sentences into definable categories of such offending. Given the grave seriousness of disruption to criminal court proceedings, the sentencing considerations of denunciation and deterrence are routinely important ones.

[43] The Crown referred to the earlier 2013 decision of the Court of Appeal in M v
R.²⁸ That case criticised R v Hillman, which appeared to set a benchmark of three years’ imprisonment for serious offending “of this kind”.²⁹ Rather, the Court argued that an approach that was more consistent with the Sentencing Act 2002 was to sentence defendants committing crimes of a more serious kind close to the maximum sentence that could be imposed. Therefore, in the case of attempting to pervert the course of justice, where the maximum sentence is seven years’ imprisonment, there was no reason to view three years’ imprisonment as the starting point for serious offending.³⁰

[44] Finally, Mr Gullidge turned to the Court of Appeal decision in Miller v R.³¹ That case noted that the real focus in each case must be the intention behind the attempt, and its potential effect.³²

²⁵ R v Churchward, above n 21, at [14].

²⁶ McQuilkin v R [2017] NZCA 283.

²⁷ At [14] (footnotes omitted).

²⁸ M v R [2013] NZCA 385.

²⁹ R v Hillman [2005] 2 NZLR 681.

³⁰ M v R, above n 28, at [11].

³¹ Miller v R [2014] NZCA 382.

³² At [11].

Relevant authorities

[45] The Crown identified three cases that it was felt to be relevant.

[46] First, the Court of Appeal decision in R v Kingi.³³ The appellant in that case was sentenced on domestic violence charges, one charge of forgery, and one charge of attempting to pervert the course of justice. The appellant had written from prison to the complainant (his partner) to persuade her not to give evidence. The letters contained an undercurrent of violence. A starting point of two years’ imprisonment was adopted for the charge of attempting to prevent the course of justice.

[47] Secondly, R v Hillman.³⁴ In this case, a sentence of 18 months’ imprisonment was imposed for a charge of attempting to pervert the course of justice. No starting point was indicated in this case. Here, Mr Hillman had attempted to persuade the complainant (his partner) to withdraw her complaint about another offender in a gang. He visited her two other times the same day to ask her to drop the charges. No express threats were made, and he left when asked. This case, however, as highlighted, has been superseded by M v R.³⁵

[48] Finally, the Crown turned to the High Court decision in Mita v Police.³⁶ In this case the appellant was sentenced on domestic violence charges and one charge of attempting to pervert the course of justice. A starting point of two to three years’ imprisonment was held available for a charge of attempting to pervert the course of justice. There were 52 phone calls to the complainant (who was his partner) while the defendant was remanded in custody, and most of these calls were amicable. During some of these 52 calls, the appellant pressured the victim to provide him with assistance. Through persistence and threats the appellant, in that case, persuaded the victim to file a false affidavit and retract her statement.

³³ R v Kingi CA360/01, 1 May 2002.

³⁴ Hillman v R, above n 29.

³⁵ M v R, above n 28.

³⁶ Mita v Police [2017] NZHC 2573.

Relevant factors

[49] The Crown identified a number of factors that it said were relevant in the present case.

[50] It said there was direct pressure by the defendant on victim in the sense that Mr Henare directly texted the complainant to try to get her to drop the charge.

[51] It says there was premeditation and that the messages were not spontaneous as they were 40 minutes apart. In this case, on the issue of premeditation, I am prepared to accept the two text messages were relatively close in time and do not believe that it can be said that premeditation is an aggravating feature.

[52] Mr Gullidge also referred to the fact that there was a breach of the non- association order which was a Court order. That is, in this case, an aggravating feature.

[53] Mr Gullidge referred to the potential effect and, obviously, the potential effect of this offending was that the complainant may have felt sufficiently concerned to amend her evidence. The actual effect appears to have been frightening for the victim.

[54] Gang intimidation was mentioned by Mr Gullidge as a relevant factor although Ms Wright took issue with this. The reality is there is no particular evidence relating to a gang association, and I set that issue in terms of an aggravating feature to one side.

[55] Finally, Mr Gullidge referred to intention behind the attempt and here the intention appears to have been to have the unlawful taking of a vehicle, and the theft of petrol charges withdrawn.

The Crown’s analysis

[56] The Crown viewed the present offending as more serious than that in Bishop, McIlroy and Churchward. This was because it said Bishop and Churchward involved a third party pressuring the victim, rather than the offender as we have here. It said that the direct pressure was inherently more intimidating than an indirect approach. That is a proposition that will often be true, although is not always an absolute
proposition and there will be occasions when an indirect approach can be equally as intimidating as a direct approach.

[57] I agree with the Crown that contravention of a non-association condition is a matter which would distinguish this from the truly spontaneous outburst such as in Bishop.

[58] I note that McIlroy did not involve a non-association order and direct pressure by the defendant, but it was an unusual case. The victim in that case was a willing participant in the sequence of communication and the pressure applied was different as the victim did not initially take the defendant seriously. In the present case, the victim was unwilling to communicate and took the appellant seriously.

[59] The Crown argued that Hillman is the case that bore the most similarity to the present factual circumstances although there was also reliance as an indicator of the appropriate starting point on Ledgerwood.

[60] Kingi and Mita were identified as being more serious than the present case, especially in light of the two and three years starting point adopted in those cases and the involvement of domestic violence. The absence of domestic violence in the present case is a matter that Ms Wright put some emphasis on in her oral submissions. It is also noted that in those cases, the defendants were more persistent and threatening than in the present case. Although there were non-association orders also in those cases.

[61] The Crown submits that, although in the present case the victim was not expressly threatened, she felt threatened. As noted in Miller, the real focus needs to be on the intention behind the attempt and on its potential effect.³⁷ Here, the two messages did show an intent to pervert the course of justice and had the potential to do so.

³⁷ Miller v R, above n 31, at [11].

[62] The Crown submits that given the similarities with Hillman, the final starting point of 16 months’ imprisonment was well within the available range, and indeed when compared to Ledgerwood may be seen as lenient.

Analysis

[63] This case has caused me some anxious consideration and one of the reasons for that is the range of cases including the Ledgerwood case which Mr Gullidge drew the Court’s attention to this morning.

[64] It is important that there is consistency in sentencing for offences where the facts are broadly similar. It is also obviously important that in any particular locality there be a consistency in sentencing for similar offences committed in that area in similar circumstances.

[65] As identified in McQuilkin v R, there is no tariff case because the factual circumstances are infinitely variable.

[66] On balance, it is my view that the authorities relied upon by the appellant appear to be more closely analogous than the authorities relied upon by the Crown. I agree with the sentencing Judge that the index offence is not of the most serious kind due to the lack of expressed threats, lack of violence, and the fact that only two brief messages (relatively close together) were sent.

[67] I have come to the conclusion that the Judge, in his final starting point, did not appropriately recognise that this was an example, at the lower end, in terms of seriousness of an offence of this nature.

[68] It is my view that of all the cases identified by both parties Churchward is the most similar.³⁸ That case involved a man called Mr Peacock who hit the complainant in the face with a bottle causing a nasty wound. He was charged with wounding with intent to injure. Ms Churchward sent a text message to the partner of the complainant, followed by a call asking if the complainant would sign a statement saying Mr Peacock

³⁸ R v Churchward, above n 21.

didn’t do it. Ms Churchward wanted to speak to Mr Forrest. A text message was sent the next day requesting the same thing, and then phone calls followed with no response. Mr Peacock threatened to hold a grudge forever against the complainant if he wouldn’t comply. A starting point of 12 months’ imprisonment was adopted by the Court of Appeal.

[69] As Ms Wright conceded in response to a question from me, there were factors both of an aggravating and mitigating nature present in Churchward that are not present in the present case. These include:

(a) the existence of a non-association order;

(b) the fact that Mr Henare is facing six other charges – four of which can be punished with imprisonment;

(c) fewer text conversations in the present case;

(d) no phone calls occurred in the present case;

(e) the defendant had been pressuring the victim directly in the present case and it was indirect in Churchward; and

(f) no threats were actually made.

[70] I think the Crown is right in identifying that the Facebook messages sent had the ability to intimidate the complainant and were done with that intention.

[71] However, overall, I think that this case is slightly more serious than Churchward and the particular aggravating features are that the defendant in Churchward was only before the Court on one charge. She was not subject to a non- association provision as a condition of bail, and the pressure she exerted that was via a third party rather than direct.
[72] Overall and after reflecting on the matter, I think that the appropriate starting point in this case in relation to the index charge should have been 13 months rather than 16 months.

[73] If one applies the same uplifts and discounts used by the sentencing Judge, and there has been no challenge to that, an uplift for four months for the balance of the offending except for the offences for which imprisonment was not an available penalty, give the subtotal of 17 months; an uplift of one month to recognise that two of the charges of resisting police occurred while on bail gives the subtotal of 18 months; a reduction of two and a half months to recognise the appellant’s youth reduces that to 15½ months; a reduction for one month for remorse takes it down 14½ months; and a reduction of 20 per cent for a guilty plea gives a sum of
11.6 months.

[74] There has been no challenge to the fact that the sentence of imprisonment was converted to a sentence of home detention and, in my view, that was appropriate and based on the re-worked sentencing, I believe a period of six months’ home detention is an appropriate sentence.

Conclusion

[75] Accordingly, I allow the appeal and what was effectively a seven months sentence of home detention, which was adjusted to allow for the time that Mr Henare had spent in prison, now becomes effectively a six months sentence of home detention. So, the time that Mr Henare will spend undertaking the sentence of home detention is reduced by one month.






Churchman J

Solicitors:

N Wright, Barrister & Solicitor, Gisborne for Appellant Crown Solicitor’s Office, Gisborne for Crown