Hare-Huru v Police [2023] NZHC 3456 (30 November 2023)

Last Updated: 5 December 2023

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-464 [2023] NZHC 3456

BETWEEN	ROGAN HARE-HURU Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	27 November 2023
Appearances:	M S D Fernando for Appellant R A van Boheemen for Respondent
Judgment:	30 November 2023

JUDGMENT OF O’GORMAN J

This judgment was delivered by me on 30 November 2023 at 3 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Counsel:

M S D Fernando, Barrister, Auckland

R A van Boheemen, Barrister, Auckland

HARE-HURU v NEW ZEALAND POLICE [2023] NZHC 3456 [30 November 2023]

• [1] This is an appeal against a sentence of 27 months’ imprisonment imposed by Judge L Tremewan on the following charges in the District Court at Waitākere:¹

(a) 5 July 2021 offending: Receiving (over $1000)² and dangerous driving.³

(b) 22 March 2022 offending: Failing to remain stopped for an enforcement officer⁴ and driving while suspended (third or subsequent).⁵

(c) 27 July 2022 offending: Unlawful possession of a firearm⁶ and unlawful possession of ammunition.⁷

(d) 4 April 2023 offending: Unlawful taking of a motor vehicle.⁸

• [2] Two arguments are advanced in support of the appeal:

(a) the Judge erred by not following the two-step methodology required in

Moses v R;⁹ and

(b) inadequate discounts were given.

Legal principles

• [3] The Court must allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.¹⁰ Generally, the sentence must be shown to be manifestly excessive or

¹ New Zealand Police v Hare-Huru [2023] NZDC 19106.

² Crimes Act 1961, ss 246 and 274(a): maximum penalty of seven years’ imprisonment.

3. Land Transport Act 1998, s 35(1): maximum penalty of three months’ imprisonment or a $4,500 fine and a mandatory six months’ disqualification.

⁴ Sections 52A(1)(b) and 114: maximum penalty of a $10,000 fine.

5. Section 32(1)(c): maximum penalty of two years’ imprisonment or a $6,000 fine and a mandatory 12 months’ disqualification.

⁶ Arms Act 1983, s 45(1): maximum penalty of four years’ imprisonment and/or a $5,000 fine.

⁷ Section 51: maximum penalty of three years’ imprisonment and/or a fine not exceeding $4,000.

⁸ Crimes Act, s 226(1): maximum penalty of seven years’ imprisonment.

⁹ Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.

¹⁰ Criminal Procedure Act 2011, s 250.

wrong in principle.¹¹ The focus is on the end sentence imposed, rather than the process by which it is reached.¹²

• [4] The claim that a sentence is manifestly excessive (or inadequate) is inevitably premised on the contention of prior error, which may include questions of whether the starting point was too high given the facts, or of incorrect discounts.¹³

• [5] Appellate courts do not indulge in mere tinkering with a sentence.¹⁴ The Court generally will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.

Methodology

• [6] In Moses v R, the Court of Appeal set out a two-step methodology for sentencing:¹⁵

(a) the first step is to calculate the adjusted starting point, incorporating aggravating and mitigating features of the offences;

(b) the second step incorporates all aggravating and mitigating factors personal to the offender, together with any guilty plea discount, which should be calculated as a percentage of the adjusted starting point.

• [7] There is no challenge on appeal of the District Court adopting a starting point of 27 months’ imprisonment on the firearms charge.¹⁶ The Judge then applied an uplift of 10 months for the other offences, taking a global approach.¹⁷ In total, the Court therefore took a nominal starting point of 37 months for all of the offending.

¹¹ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35].

¹² At [36].

¹³ At [32].

¹⁴ R v Boyd [2004] NZCA 342; (2004) 21 CRNZ 169 at [38].

¹⁵ Moses v R, above n 9, at [46].

¹⁶ New Zealand Police v Hare-Huru, above n 1, at [17].

¹⁷ At [13].

• [8] The appellant’s complaint relates to how the second limb methodology was applied. The appellant says that 25 per cent was afforded by way of discount for guilty pleas, and a combined 10 per cent discount was afforded for the two different factors of hardship/deprivation and rehabilitation/remorse. The complaint is that a further 10 per cent discount should have been afforded for two further mitigating factors:

(a) mental health (five per cent is claimed as appropriate); and

(b) time spent on electronically monitored (EM) bail (a further five per cent discount is claimed is appropriate).

• [9] Accordingly, the allegation is that, if the Moses methodology had been followed properly, an end sentence of less than two years’ imprisonment would have been reached.

• [10] In terms of the second step, the District Court in fact took the following approach:

(a) The nominal starting point was discounted by a total of 35 per cent to mark all the mitigating features. This included a full 25 per cent credit for guilty pleas,¹⁸ and a further 10 per cent discount for other factors including the work the appellant had been doing in the Recovery Oranga unit at the prison, any issues that there might be relating to his background, and any small credit that there might be for time spent under strict bail conditions.¹⁹

(b) The Judge then applied a three-month uplift to take into account the appellant’s previous conviction history, which included a firearms offence. This approach is entirely consistent with the Moses methodology.²⁰

¹⁸ At [14].

¹⁹ At [15]–[16].

²⁰ See Stewart v R [2021] NZCA 539 at [16]; Mo’unga v R [2023] NZHC 1976 at [28]–[34]; and Matthew Downs (ed) Adams on Criminal Law – Sentencing Levels and Guidelines (online ed, Thomson Reuters) at [SAC3].

• [11] Based on this analysis, I reject the assertion that the two-stage methodology in Moses was not followed correctly. Rather, the points taken on appeal in substance relate entirely to the alleged inadequacy of the discounts afforded, addressed separately below.

Mitigating factors and available discounts

• [12] As described above, the appellant submits that he was entitled to a further 10 per cent for mitigating factors. In respect of each of the issues raised by the appellant:

(a) Section 27 factors — the appellant submits that a credit of a further five per cent might be available to recognise the difficulties that he endured in respect of hardship, deprivation and cultural factors as identified in the Provision of Advice to Courts (PAC) report. The Judge expressly recognised relevant issues in the appellant’s background referred to in the PAC report, and credit was given for this as part of the global discount. There was no s 27 report before the District Court, and it is not clear what particular aspects in his background would justify any additional discount. I cannot see any error in the approach taken by the Judge on this issue.

(b) Rehabilitative work in prison — the appellant alleges that the Judge failed to consider the appellant’s significant efforts to rehabilitate and address his substance abuse, and in turn this failed to recognise his acceptance of responsibility and remorse. As referred to, the appellant’s work at the Recovery Oranga unit was expressly recognised by the Judge and included as part of the global discount. However, the District Court held that any recognition for rehabilitation was limited by the fact that he had gone on to reoffend after completing the programme and being granted bail.²¹ Again, I do not see any basis for interfering with the Judge’s assessment on this issue.

²¹ New Zealand Police v Hare-Huru, above n 1, at [15].

(c) Remorse — the appellant seeks an extra discount for his willingness to participate in a restorative justice process, even if it did not take place. The submission is that it is a further demonstration of remorse deserving of an additional discount in the region of five per cent. This offer to participate in restorative justice was not addressed by the District Court in the sentencing notes, and it is not clear whether it was raised before the Judge. However, it is common for restorative justice to be recognised within a discount for remorse²² and remorse was expressly accounted for in the global 10 per cent discount. I do not regard this aspect as justifying any separate discount.

(d) Time spent on EM bail — the appellant spent 134 days on EM bail. The District Court noted that the appellant had been given EM bail, then reoffended, then ended up back in the Recovery Oranga unit at the prison. Whatever those details, the Court observed that it could be seen as generous to still give the 10 per cent global credit. In particular, the sentencing Judge said that only a small credit was appropriate for time spent under strict EM bail conditions, but that must be “minimal given the further offending”.²³ I accept that this approach is consistent with the principles in Gage v R and not an error.²⁴

(e) Mental health — it is accepted that a sentencing discount may be available to recognise mental health issues where there is an evidential basis for concluding that mental health issues contributed to the offending.²⁵ The appellant expressed that he was suffering from depression and was anxious after the passing of his mother. However, there was no evidential basis to substantiate that this materially contributed to his offending or diminished his responsibility for the offending. I therefore do not see any error in the District Court not giving any discount for this aspect.

²² Pou v Police [2021] NZHC 1068 at [22(c)].

²³ New Zealand Police v Hare-Huru, above n 1, at [16].

²⁴ Gage v R [2014] NZCA 140 at [26].

²⁵ R v M [2008] NZCA 148 at [33]; and R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372 at [45].

• [13] I have also considered whether the overall end sentence was manifestly excessive. It could be argued that the global discount of 10 per cent is low for the combination of factors that merit a discount as mitigating features. However, I accept the overall end sentence is not manifestly excessive in the circumstances. As noted by the District Court, the starting point, while in the available range, could have been higher. The uplift for the totality of the remaining offending could have been greater, and an uplift could have been considered for the fact that the offending occurred while the appellant was subject to a sentence of intensive supervision or otherwise on bail.

• [14] Overall, I am not satisfied that there is any error in the sentence imposed, or that a different sentence should be imposed.

Result

• [15] Accordingly, I dismiss the appeal.

O’Gorman J