Hala v R

[2013] NZCA 237

IN THE COURT OF APPEAL OF NEW ZEALAND

CA744/2012
[2013] NZCA 237

BETWEEN	NED HALA Appellant
AND	THE QUEEN Respondent

Hearing:	11 June 2013
Court:	O'Regan P, MacKenzie and Miller JJ
Counsel:	N J Sainsbury for Appellant S Edwards for Respondent
Judgment:	18 June 2013 at 2.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

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REASONS OF THE COURT

(Given by Miller J)

Introduction

1. Mr Hala appeals against a sentence of two years and three months imprisonment imposed for injuring with intent to injure,[1] saying that he ought to have been sentenced to something less than two years.

   [1]R v Hala DC Palmerston North CRI-2012-054-917, 18 October 2012. 

2. The charge arose from an unprovoked assault at a Palmerston North bar about 1 am on 23 March 2012.  The victim, an 18-year old student, collided with Mr Hala as he walked through the crowd.  Mr Hala responded by punching him three times in the face, knocking him to the ground.  As the victim got up he was again punched in the face.  His jaw was fractured in two places, and the repair required that metal plates be inserted.  He lost one tooth and is likely to lose more as a result of dental problems caused by the injury.  The process of recovery from the surgery was time-consuming and painful, and his tertiary studies, which are in sport, were much affected. 

3. Mr Hala initially claimed that he had acted in self-defence.  He was committed for trial on a charge of wounding with intent to injure.  On 30 August he pleaded guilty to the reduced charge of injuring with intent to injure.

4. At the age of 24 Mr Hala had what Judge Lynch described as a short but worrying criminal history.  It included convictions for possessing an offensive weapon (2006), assault (2007), and injuring with intent to injure (2009).  For the last of these offences he was sentenced to seven months home detention in 2011, but he breached the sentence by being absent without leave.  He was in breach of post‑detention conditions when he committed the present offence. 

5. Accordingly, the probation officer did not recommend home detention.  The pre-sentence report recorded that Mr Hala’s compliance with his existing sentence was poor and that he evidently not learned from a programme he had undertaken to manage his propensity for violence.  On the positive side, it also noted that he was employed full-time at Affco.  It appears that his employer supported him.

6. Relying on R v Harris,[2] Judge Lynch took a starting point of two years and 10 months imprisonment, relying on five aggravating factors: blows to the head, premeditation by continuing the assault, use of boxing technique intended to cause harm, vulnerability of the victim, who was not expecting the attack, and the serious harm done.  He added an uplift of four months for the previous convictions.  In mitigation, he allowed two months for limited remorse and willingness to participate in restorative justice, and nine months for the guilty plea.

   [2]     R v Harris [2008] NZCA 528. This Court’s decision in Nukuv R [2012] NZCA 584; [2013] 2 NZLR 39 was delivered two months after sentencing in this case.

7. On appeal, Mr Sainsbury argues that the starting point was too high as there was no premeditation and the attack did not correspond to the level of harm.  The Judge ought to have made an allowance in mitigation for time spent on restrictive bail conditions, Mr Hala’s full-time employment, and remorse.

8. We accept that the attack was not premeditated, strictly speaking, but Mr Hala persisted by punching the victim several times then punching him again when he got up, and that must be treated as an aggravating feature of the offending.  That is the real point that the Judge was making.  Nor do we accept that there was a disparity between the attack and the resulting injury.  Rather, we accept Ms Edwards’ submission that the injuries were a predictable consequence of four punches delivered with some skill and power, and with the intent to cause serious injury.  In the circumstances, the starting point was within the available range under R v Harris, and it would equally be available had Mr Hala been sentenced using the bands subsequently established in R v Nuku.

9. We are not persuaded that the Judge was wrong to give two months credit for remorse, recognising Mr Hala’s willingness to engage in restorative justice.  The full 25 per cent was allowed for the guilty plea.  That assumes a normal degree of remorse.  It was a generous discount, because Mr Hala did not offer to plead until August 2012, when negotiations began with the Crown. 

10. Nor need the Judge make any allowance for restrictive bail conditions.  Mr Hala was subject to a curfew, but that was warranted by his offending history.  The curfew did not interfere with his work, which required overtime.  It was also relaxed over time, notably to let him engage in sporting activities.  Nor was it necessary to make any allowance for his employment, which he inevitably would lose.  Employment history may point to good character and prospects of rehabilitation, but there was little room here for an allowance to be made given Mr Hala’s previous offending and non-compliance with release conditions.

1. The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington, for Respondent