Hetaraka v R [2024] NZHC 651 (22 March 2024)

Last Updated: 12 April 2024

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

CRI-2024-404-54 [2024] NZHC 651

BETWEEN	LENA RINGATU HETARAKA Appellant
AND	THE KING Respondent

Hearing:	11 March 2024
Counsel:	J Yi for Appellant H Bell for Respondent
Judgment:	22 March 2024

JUDGMENT OF BECROFT J

[Appeal against sentence]

This judgment was delivered by me on 22 March 2024 at 4:00 pm.

Registrar/Deputy Registrar

..........................................

Solicitors/Counsel:

J Yi, Barrister, Auckland Meredith Connell, Auckland

HETARAKA v R [2024] NZHC 651 [22 March 2024]

The appeal

• [1] Ms Lena Ringatu Hetaraka appeals her sentence of 14 months’ imprisonment (with leave granted to apply for home detention) imposed by Judge B A Gibson on 16 January 2024 at the Auckland District Court.¹

• [2] The sentencing followed her guilty pleas to two charges:

(a) assault with intent to rob;² and

(b) common assault.³

Grounds of appeal

• [3] Mr Yi for Ms Hetaraka advances three grounds of appeal on the basis that there were errors in the sentence imposed and a different sentence should have been imposed because:

(a) the starting point for the lead charge, assault with intent to rob, of 12 months’ imprisonment was too high;

(b) the Judge gave insufficient or no weight to the defendant’s personal circumstances and her efforts at rehabilitation; and

(c) a sentence of community detention or of community work and intensive supervision should have been imposed.

The Crown submits that the sentence should be left undisturbed and is perfectly justified.

¹ R v Hetaraka [2024] NZDC 2840.

² Crimes Act 1961, s 236(2); maximum penalty seven years’ imprisonment.

³ Crimes Act, s 196; maximum penalty one year imprisonment.

The facts

• [4] The charges arose out of two incidents, both occurring in the middle of the day in Central Auckland.

• [5] At about 2:00 pm on 10 December 2022, the victim was walking with his partner and a female friend along Queen Street. Ms Hetaraka approached the victim’s female friend and unsuccessfully attempted to grab her handbag. Ms Hetaraka then began yelling and swearing at the group before running towards them in an aggressive manner. This time, Ms Hetaraka grabbed the male victim’s bag. He turned to face Ms Hetaraka and without hesitation punched her in the face. Using both hands, he then pushed Ms Hetaraka away. Ms Hetaraka did not obtain this victim’s bag either.

• [6] A companion of Ms Hetaraka, Mr Falwasser, then approached the victim and hit him on the head with a hammer causing a wound that immediately started bleeding. The victim felt dizzy and fell to the ground. Ms Hetaraka and Mr Falwasser then disappeared.

• [7] The second incident occurred a short time later at a sushi shop on Elliot Street. Ms Hetaraka picked up a package of sushi and attempted to leave without paying for it but was stopped by the store security guard. Her companion, Mr Falwasser, handed to Ms Hetaraka the same hammer he had used earlier. Mr Falwasser tried (but failed) to punch the security guard. Ms Hetaraka then swung the hammer at the security guard, missing him. The pair left the store and then returned in an attempt to take the sushi again. Ms Hetaraka was once again stopped by the security guard. Mr Falwasser pulled out a screwdriver and began taunting the security guard before the pair made their escape.

District Court decision

• [8] In the District Court, the learned Judge adopted a starting point of 12 months’ imprisonment for the assault with intent to rob. He noted a number of aggravating features such as the complainants being confronted on Queen Street, Auckland with the two offenders, the security guard, the use of weapons, a hammer, and in the Queen Street incident, an attack to the head and the significant impact on the victims.
• [9] Noting the maximum sentence of seven years’ imprisonment, the Judge concluded the 10 months’ starting point suggested by the Crown was too low. He set the starting point at 12 months imprisonment on the lead offence.

• [10] He then uplifted the starting point by a further three months, rather than the two months proposed by the Crown on the basis that Ms Hetaraka plainly threatened the security guard with the hammer by swinging it at him.

• [11] The Judge further uplifted the sentence by two months, “because the defendant committed these offences while she was under sentence, having been sentenced to supervision at the time.”⁴

• [12] He allowed a 15 per cent discount for her guilty plea, which equated to three months’ imprisonment resulting in an end sentence of 14 months’ imprisonment.

• [13] The learned Judge set out many of Ms Hetaraka’s personal circumstances including trauma and psychological difficulties as a result of childhood abuse and violence but felt that they were “self-reported”. The Judge made no allowance for any personal circumstances.

• [14] The Judge concluded that imprisonment must be the starting point and that it “needed to be the end point”. However, having regard to the way Ms Hetaraka had reduced her rate of offending, the Judge allowed her leave to apply to substitute that sentence with a sentence of home detention. A home detention address was not available when the pre-sentence report was provided to the Court.

• [15] Given the level of violence in a public place insofar as the assault with intent to rob was concerned, the Judge made clear that the principles of denunciation and deterrence must win out.

⁴ R v Hetaraka, above n 1, at [11].

Approach on appeal

• [16] Section 250(2) of the Criminal Procedure Act 2011 states that a court must allow a sentence appeal if satisfied that:

• for any reason, there is an error in the sentence imposed on conviction; and

• a different sentence should be imposed.

• [17] In any other case, the Court must dismiss the appeal.⁵

• [18] As has been emphasised by the Court of Appeal, the proper approach on a sentence appeal is as follows:⁶

[14] This Court must allow the appeal if it is satisfied that for any reason there was an error in the sentence imposed on conviction and a different sentence should be imposed. The focus is on the sentence imposed, rather than the process by which it is reached. The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. To this end the concept of a “manifestly excessive” sentence is well-engrained and there is no reason not to use it.

• [19] The meaning of manifestly excessive, however, is not conceptually vague and should not be considered in a vacuum. As was noted in Tutakangahau:⁷

It is simply a means of examining the significance of the error to decide whether a different sentence should be imposed. The claim that a sentence is manifestly excessive (or inadequate) is inevitably premised on the contention of a prior error which often will involve questions such as whether the starting point is too high given the facts, or of incorrect discounts or as to parity with co-offenders.

• [20] Generally, there will be an error if the sentence is manifestly excessive, involved an error in law or principle, is plainly inappropriate, or proceeded on a materially wrong or mistaken understanding of the facts.

⁵ Criminal Procedure Act 2011, s 250(3).

⁶ Campbell v R [2022] NZCA 579 (footnotes omitted).

⁷ Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32].

• [21] An appellant must point to such an error, either intrinsic to the Judge’s reasoning, or as a result of additional material submitted on the appeal, which vitiates the sentencing decision.⁸ I remind myself that as an appeal focusses on the correction of error, it is not “a second shot at sentencing”.⁹

Was the starting point too high?

• [22] At sentencing, the Crown was of the view that the starting point should be 10 months. Principally this was because, in the Crown’s submission, there was no evidence Ms Hetaraka knew that Mr Falwasser was carrying a hammer (and a screwdriver) nor that they acted in concert.

• [23] Understandably, the Judge treated this with some scepticism. Nevertheless, Ms Hetaraka’s knowledge on this point would ultimately be speculation or guesswork. It cannot be taken into account in terms of the assault with intent to rob charge, which was legally complete by the time Mr Falwasser stepped in. Ms Hetaraka was not charged or dealt with as a party to Mr Falwasser’s attack, and there is nothing to suggest that she knew it would take place. If the Judge was going to rely on this aspect, as he plainly did, there should have been the opportunity for a disputed facts hearing under s 24(2) of the Sentencing Act 2002.

• [24] The Crown was right at sentencing, to suggest a 10-month starting point. The reasons provided by the Judge for a higher starting point certainly included the reference to the use of a hammer and an attack to the head. Although it is only a small difference, it is significant, and I think the Judge was in error to set the starting point at 12 months. It should have been 10 months as originally suggested by the Crown. I accept Mr Yi’s helpful submissions on this point.

• [25] There is also the issue of alleged “disparity” with the 16-month starting point for Mr Falwasser’s charge of assault with a weapon, imposed by a different Judge. That carries a lesser maximum of five years’ imprisonment. But it included the use of a hammer to the most vulnerable part of the body, the head, which caused bleeding

⁸ R v Shipton [2006] NZCA 530; [2007] 2 NZLR 218 (CA); and Te Aho v R [2013] NZCA 47 at [30].

⁹ Polyanszky v R [2011] NZCA 4 at [17].

and dizziness. And it left the victim severely traumatised. On any analysis, that was a significantly more serious assault than the unsuccessful attempt to grab the victim’s bag from him without any other assault. But neither Ms Hetaraka’s starting point which I have fixed at 10 months imprisonment, nor the 12 months fixed by the sentencing Judge, is too high or too close to that of Mr Falwasser’s starting point so as to constitute disparity between them and unfairness to Ms Hetaraka.

• [26] The three-month uplift for the common assault charge, involving Ms Hetaraka’s later use of the hammer in the sushi shop, cannot be disputed. I reject any suggestion that it was inappropriate. And to reinforce that conclusion, I note that Mr Falwasser received exactly the same uplift for his generally similar part in the sushi shop offending.

The two-month further uplift for offending while on a sentence of supervision

• [27] This argument developed during the appeal. Plainly, the Judge was in error to take into account that Ms Hetaraka was serving a sentence of supervision when this offending took place. The Crown accepts that was incorrect. In fact, she was on a sentence of supervision at the time of this sentencing for a more minor offence committed after this offending. That further uplift cannot be sustained.

• [28] On a different point, I note that in his remarks, the Judge did not impose any uplift for Ms Hetaraka’s previous offending—the inference being this was because of the long gap since her last offending. This Court is not bound by the Crown’s concession at sentencing that there should be no uplift for previous offending, nor by the Judge’s decision not to impose an uplift for this factor.

• [29] I mention Ms Hetaraka’s previous offending because I need to look at the sentencing situation as a whole. The fact that the two-month uplift for offending on supervision was in error does not prevent me from concluding that, nevertheless, a different uplift was still justified—here an uplift for previous offending.

• [30] However, in this case, by a small margin, I am prepared to accept that while the two-month uplift should not have been applied an uplift for prior convictions is not required—in line with the Judge’s conclusion.

No discount for personal mitigating factors

• [31] The Judge set out the very sad litany of disadvantages suffered by Ms Hetaraka. I agree that there is no rule of thumb that there will always be a discount for personal circumstances. Also, I accept there is some force in the Crown’s submission that evidence of family and upbringing factors causative of the offending should be provided independently, for instance, through a s 27 report. But there is certainly no rule to this effect.

• [32] Here, the Crown submits that the Judge did adequately consider the appellant’s personal circumstances that were before him. I agree that the inference must be that the Judge concluded that on this occasion, those factors should be given no weight or extra allowance. There comes a time when such factors must yield to a more deterrent sentencing approach. The Judge did not say this, but I assume this is what he meant.

• [33] Here, there is one particular factor that is very important, and which is not in dispute. That is the death of Ms Hetaraka’s 16-year-old daughter in the most traumatic and horrific circumstances that led to charges of murder and kidnapping being laid against several people. I am told there was a trial and a re-trial. I accept that for five years this consumed Ms Hetaraka’s life and left her profoundly upset, volatile and traumatised. In all the circumstances, I think it would have been appropriate to allow a 10 per cent reduction for personal circumstances, some of which only emerged on appeal.

A community-based sentence instead of imprisonment?

• [34] I need to also make plain that I reject the submission for Ms Hetaraka that a community-based sentence of either community detention or community work and intensive supervision would have been more appropriate as the least restrictive sentence in all the circumstances.

• [35] The Judge grappled with this issue in detail and engaged with the principle as to restrictions on imprisonment set out in s 16 of the Sentencing Act – which section he specifically mentioned. He concluded that imprisonment was the least restrictive sentence consistent with the principles of denunciation and deterrence. On appeal I am

not prepared to disagree with him. In any case, he carefully explained why in these circumstances it was appropriate to give Ms Hetaraka leave to apply for home detention.

Miscellaneous matters

• [36] The Crown alerts me to two matters where the criminal record requires correction. First, Ms Hetaraka’s criminal history incorrectly records the conviction in respect of the sushi shop offending as being for “Aggravated Assault (Other Weapon)” rather than for “Common Assault” under s 196 of the Crimes Act 1961, which is the charge to which she pleaded guilty. I direct correction of the record accordingly.

• [37] Second, in respect of that same charge, the Judge’s original sentence of 14 months was entered in error because the maximum sentence for the charge of common assault is 12 months imprisonment. Given the result of this appeal, that issue no longer arises. Also, I think it is better to differentiate between the two charges which I attend to, below.

Conclusion

• [38] I have found that the Judge erred in setting a starting point that was too high, in applying an uplift for offending while on supervision, and in refusing to apply a reduction for Ms Hetaraka’s extreme personal circumstances.

• [39] The starting point on the charge of assault with intent to rob should have been 10 months imprisonment, which is uplifted by three months to reflect the common assault charge. A 15 per cent allowance is available for guilty plea plus a 10 per cent allowance for personal circumstances. This results in a “rounded” end sentence of 10 months imprisonment. I add that such a reduction, in the context of the original sentence, is not “tinkering”—something which judges on appeal are careful to avoid.

• [40] Accordingly, the sentence imposed in the District Court was manifestly excessive and I consider a different, reduced sentence should be imposed.

Result

• [41] The appeal is allowed.

• [42] Ms Hetaraka’s sentence of 14 months’ imprisonment is quashed. She is sentenced to 10 months’ imprisonment for the assault with intent to rob charge, and three months’ imprisonment for the common assault charge, both sentences being concurrent. Leave to apply for home detention is preserved.

Becroft J