A former trustee of a Far North Māori trust who was convicted last year of stealing more than $1 million, has lost his appeal against his prison sentence.
Stephen Henare pleaded guilty to five charges of theft by a person in a special relationship and one of perverting the course of justice partway through his trial in the High Court at Auckland in May last year. He took the money from the Parengarenga 3G (P3G) Trust.
He appealed the sentence of five years and two months' imprisonment, imposed by Justice Matthew Muir, on the grounds that his offending had been mischaracterised as being driven, in part, by a sense of entitlement.
His counsel also argued that Henare's age (then 62) had not been considered, that insufficient credit had been given to the consequences of a prison sentence on his former wife, who was seriously ill, and that the court should have recognised his state of whakamā (shame) at sentencing.
The Court of Appeal's decision, given last week by Justice Collins, accepted that Henare had devoted considerable time and energy to returning the land to its rightful owners, but noted that his criminal offending began as soon as he could do so, and within the course of a year almost all the trust's money had gone.
"Mr Henare used the trust money to fund his gambling and expensive luxuries, such as a corporate box at rugby league games," Justice Collins said. "In part he did so because he believed he was entitled to treat the trust money as his own."
Justice Muir had been correct to criticise him for that sense of self-entitlement, a feature of the case that was "particularly disturbing", and was properly seen as an aggravating factor.
Unfortunately, criminal offending often had a severe impact on the offender's family, Justice Collins said.
"The impact on Mrs Henare of the sentence her husband must serve is one of many tragic consequences that flow from Mr Henare's decision to commit large-scale thefts," he added.
The court also ruled that age was not a special mitigating factor in this case, and there had been no guidance on what whakamā actually entailed in this case.
"All we can say is that in an appropriate future case, the courts may be able to explore the possibility of treating whakamā as a unique mitigating factor when sentencing a
The appeal was dismissed and all features of Justice Muir's sentencing decision upheld.
Henare was appointed as a trustee of the P3G Trust, along with his sister Margaret Dixon, in June 2012. The court heard at trial that the siblings took control of P3G with about $1.08m in cash in August 2012. By July the following year the fund was just $150. By January 2014 that had reduced to $13.41, according to the Serious Fraud Office.
SFO director Julie Read said after Henare's sentencing that the fraud had a devastating financial, social and emotional impact on the 400 current and future beneficial owners of the P3G Trust.
"The current trustees are now faced with challenges in the continued maintenance of the forest and the potential future loss of a substantial portion of the remaining assets of the trust," she added.