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Hales v The King

Hales v The King

Case [2023] NZHC 670 29 March 2023

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IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2023-443-4

[2023] NZHC 670

BETWEEN
JONATHAN ROBERT HALES

Appellant

AND

THE KING

Respondent

Hearing: 22 March 2023

Appearances:

N Bourke for Appellant

R L Hicklin for Respondent

Judgment:

29 March 2023

JUDGMENT OF McQUEEN J

[1] On 15 February 2023, Jonathan Hales (the appellant) was sentenced by Judge Grieg in the New Plymouth District Court to three years’ imprisonment,1 on a single charge of sexual conduct with a person under 16 years of age, to which he pleaded guilty.2 Mr Hales now appeals that sentence, on the grounds that the Judge adopted a starting point outside of the available range and applied inadequate discounts for personal mitigating factors. He says that the sentence is manifestly excessive and that a sentence of two years imprisonment or less converted to home detention is the least restrictive sentence appropriate in the circumstances.

[2] The Crown opposes the appeal, and says that the starting point and discounts were appropriate, meaning that the sentence is not manifestly excessive.

1 R v Hales [2023] NZDC 2788.
2 Crimes Act 1961, s 134; maximum penalty ten years’ imprisonment.

HALES v R [2023] NZHC 670 [29 March 2023]

[3] For the reasons below, I consider that the appeal should be allowed. I consider the Judge erred in failing to award sufficient discounts for personal mitigating factors.

Background

Factual Background—offending

[4] The victim was 14 years old when she met the defendant at a church youth group. At that time Mr Hales was 33 years old. The victim told Mr Hales at that time that she was 15 years old. Soon after meeting, Mr Hales and the victim commenced a relationship. At that time the victim was suffering from depression and disclosed to Mr Hales that she had been sexually abused by another male. Eventually, Mr Hales asked the victim to be his girlfriend. On his return to New Plymouth after a period away in the South Island, the relationship continued, developing into a sexual relationship around the time the victim turned 15, being 9 September 2016.

[5] The sexual connection initially started by Mr Hales asking the victim to perform oral sex on him, which occurred in a park, in his car, or at a friend’s house. Mr Hales would also perform oral sex on the victim. They had full sexual intercourse for the first time on or around 14 October 2016, after which, it became a regular occurrence, meaning one or more times a day. During this time, Mr Hales also introduced the victim to drugs, and they would smoke cannabis together regularly. Mr Hales then encouraged the victim to leave school, and she moved in with him when she turned 16 years old. He attempted to control her and isolated her from her family and friends. She later became pregnant and gave birth to a daughter on 2 October 2018, having just turned 17 years old.

[6] When…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hales v The King

Details

AGLC: Hales v The King [2023] NZHC 670
Case: [2023] NZHC 670
Decision Date: 29 March 2023

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Hales v The King concerns an appeal against a sentence imposed on Jonathan Robert Hales for engaging in sexual conduct with a person under the age of 16. The appellant contends that the starting point for the sentence was outside of the available range and that insufficient discounts were awarded for personal mitigating factors. The Crown opposes the appeal and argues that the starting point and discounts were appropriate. The court must determine whether there was an error in the sentence imposed and if a different sentence should be imposed.

The court found that while the starting point of four and a half years' imprisonment was within range, the Judge erred in failing to award sufficient discounts for personal mitigating factors. The court considered that the Judge did not provide adequate discounts for factors such as Mr. Hales' childhood trauma, traumatic brain injury, and ongoing mental health issues. The court found that these factors contributed to the offending and should have been taken into account in the sentencing process. The court also noted a mathematical error in the Judge's calculation of the sentence, which should be corrected.

As a result of the appeal, the court allowed the appeal and recalculated the sentence. From a starting point of four and a half years' imprisonment (54 months), the court deducted 25 per cent for the appellant's guilty plea and a further 20 per cent for recognition of personal factors. This results in an end sentence of two and a half years' imprisonment (rounded up from 29.7 months). The court found that a sentence of imprisonment is necessary in the circumstances to give effect to the purposes of sentencing contained in sections 7 and 8 of the Sentencing Act 2002.

The final order of the court is that the appeal is allowed, and the appellant is sentenced to two and a half years' imprisonment.

Orders