Hall v Police

[2019] NZHC 1370

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2019463-44

[2019] NZHC 1370

BETWEEN

HENDRIX HALL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

17 June 2019

Appearances:

E Reilly for Appellant

M Jenkins for Respondent

Judgment:

17 June 2019

ORAL JUDGMENT OF TOOGOOD J

[Appeal against Sentence]

HALL v NEW ZEALAND POLICE [2019] NZHC 1370 [17 June 2019]

Introduction

[1]The appellant, Hendrix Hall, pleaded guilty to the following offending:

(a)On 18 May 2018, assault on a child1 and common assault.2

(b)On 20 May 2018, male assaults female.3

(c)On 23 May 2018, intimidation.4

[2]Mr Hall also failed to answer bail on 27 June 2018 and 5 September 2018.5

[3]        On 17 October 2018, Mr Hall was sentenced to 12 months’ intensive supervision by Judge GC Hollister-Jones.6

[4]But then Mr Hall offended again:

(a)On 8 December 2018, breach of a protection order7 and assaulting a female.

(b)On 15 December 2018, burglary.8

(c)On 18 December 2018, breach of intensive supervision.9

(d)On 3 January 2019, failing to report.10

1      Crimes Act 1961, s 194(a); the maximum penalty is two years’ imprisonment.

2      Section 196; the maximum penalty is one year’s imprisonment.

3      Section 194(b); the maximum penalty is two years’ imprisonment.

4      Summary Offences Act 1981, s 21(d); the maximum penalty is three months’ imprisonment or a fine of $3,000.

5      Bail Act 2000, s 38; the maximum penalty is one year’s imprisonment or a fine of $2,000.

6      Police v Hall [2018] NZDC 22273.

7      Domestic Violence Act 1995, s 49; the maximum penalty is three years’ imprisonment.

8      Crimes Act 1961, s 231(1)(a); the maximum penalty is 10 years’ imprisonment.

9      Sentencing Act 2002, s 70A(a); the maximum penalty is six months’ imprisonment or a fine of

$1,500.

10     Section 70A(b); the maximum penalty is six months’ imprisonment or a fine of $1,500.

[5]        Mr Hall pleaded guilty to these charges also. The Department of Corrections applied to have Mr Hall re-sentenced on all charges.11 That application was accepted by Mr Hall. On 17 April 2019, therefore, Judge Hollister-Jones sentenced him to two years and 10 months’ imprisonment for all of the offending.12 Notwithstanding that he escaped a further two months’ imprisonment because of a mistake by the Judge, Mr Hall now appeals.

The offending

[6]Mr Hall and M were in an intermittent relationship for roughly six years.

18 May 2018 - Assault on a child and common assault

[7]        On 18 May 2018, Mr Hall was at home looking after M’s 10-year-old son. Mr Hall told him to go to bed but the child went outside. Mr Hall grabbed him by the arms and pushed him into the door, causing a welt on his leg. M came home and her son told her what had happened. She confronted Mr Hall about it and an argument ensued. M ended up on the ground and Mr Hall dragged her outside by the feet.

20 May 2018 – male assaults female

[8]        On 20 May 2018, Mr Hall was at home with M. They argued about splitting up. M went to have a bath. Mr Hall followed her and tried to pull her out of the bath by the wrist, telling her to leave the house. M evaded him and dressed herself and began to pack some clothes. Mr Hall came in and kicked M in the back as she sat on the bed. As she was leaving, he tried to take one of her bags from her, causing the strap to bend her finger upwards. Mr Hall then grabbed M and tried to push her out of the house.

[9]        M suffered minor bruising to her right arm and finger, as well as a minor abrasion to the back.

11     Sentencing Act 2002, s 54K(1)(a).

12     Police v Hall [2019] NZDC 7416.

23 May 2018 – intimidation

[10]      On 23 May 2018, Mr Hall went to M’s address in an intoxicated state. He banged on the windows and threw around pot-plants and outdoor furniture.

[11]      On 17 October 2018, the day Mr Hall was sentenced to intensive supervision, the Taupō District Court granted M a final protection order against him.

8 December 2018 – breach of protection order and male assaults female

[12]      On the afternoon of 8 December 2018, Mr Hall and M were at home with some of M’s friends.  M went upstairs.  Mr Hall followed her and an argument ensued.   Mr Hall accused M of sleeping with his friends. M took exception to this and slapped Mr Hall. Mr Hall responded by pushing her to the ground. M suffered a deep laceration and swelling to the forehead. She fled the address. M needed six stitches.

15 December 2018 – burglary

[13]      Mr Hall’s landlord lived  in  a  unit  above  him.  The  landlord  terminated Mr Hall’s lease on 26 November 2018 for non-payment of rent. He then went overseas. On 15 December 2018, Mr Hall gained entry to the upstairs unit without the landlord’s consent. He located a safe behind an oil painting and broke into it. Mr Hall stole:

(a)two 12-gauge shotguns;

(b)a .22 calibre air rifle (which was later located);

(c)two .22 pistols;

(d)ammunition; and

(e)$8,000 in currency.

[14]      In explanation, Mr Hall said he was under the effect of methamphetamine. He said he was in financial difficulty and knew his landlord kept firearms.

Mr Hall

[15]      Mr Hall is 31 years old. He has numerous convictions, dating back to 2005, for driving and property-related offences and several convictions for violent offending. In 2009 he was convicted of assaulting Police. In 2010 he was convicted twice of assault with intent to injure and three times of male assaults female for which was sentenced to six months’ imprisonment.

[16]      In 2012 Mr Hall was convicted of two charges of male assaults female, assault on a child and breaching a protection order. He was again sentenced to imprisonment.

[17]      Mr Hall was also convicted of burglary in 2010 (six months’ imprisonment) and 2013 (11 months’ imprisonment). There is also a conviction for receiving property (over $1000) in 2009 (three months’ imprisonment).

[18]      Unsurprisingly, the pre-sentence report for the  current offending assesses  Mr Hall’s risk of reoffending as very high. He does not appear to have learned at all from the previous sentences of imprisonment; nor does he appear to have learned from the constructive rehabilitative focused sentence of intensive supervision, because less than two months later he was offending again in serious ways.

The decision under appeal

[19]      Unfortunately, Judge Hollister-Jones made two arithmetical errors when formulating Mr Hall’s sentence at the re-sentencing hearing. Each error worked in Mr Hall’s favour.

[20]      The Judge took burglary as the lead charge and noted that it was premeditated in that Mr Hall knew his landlord kept guns and cash. He also held as an aggravating factor that Mr Hall sold the guns to the Head Hunters, given the corresponding risk of their being used in serious crime. A starting point of two years and 10 months was adopted. Judge Hollister-Jones then imposed a cumulative sentence of 14 months’ imprisonment for the family violence offending for which he had previously been sentenced to intensive supervision: that is, the offending between 18 and 23 May 2018.

[21]      Turning to the offending on 8 December, the Judge described this as “not as serious as the previous family violence offending” and said that A had “started the incident off”.13 But noting Mr Hall’s overreaction to what was done and the “fairly significant injury” suffered by the victim, Judge Hollister-Jones considered that the offending warranted a six-month uplift.14 A 20-month sentence for all of the family violence offending was described as appropriate.

[22]      The Judge then combined the two sentences but erred in his addition. Instead of saying the total was four years and six months’ imprisonment, the figure he declared was four years’ imprisonment. Judge Hollister-Jones then uplifted this figure by four months to reflect the remaining charges (breach of intensive supervision and failure to report) along with Mr Hall’s criminal history. From the resulting sentence of four years and four months he then gave a discount of two months for Mr Hall’s remorse and a further two-month discount for totality.

[23]      That brought the figure contemplated by the Judge back to a sentence of four years. The Judge then applied a full 25 percent guilty plea discount from that figure and arrived at a final sentence of three years’ imprisonment. But when setting out the sentences on the individual charges, the Judge made another error. He said:

[17] The final overall sentence is three years. It will be two years, two months on the burglary, eight months cumulative on the male assaults female charge …

And then he imposed sentences on the other offending concurrently.

[24]      He clarified in an addendum to his sentencing notes, that while he had intended to impose a sentence of three years, it was clear from what he had said at [17] of the notes and what he had entered on the charging documents, that the total sentence actually imposed was one of imprisonment for two years and 10 months. That was the second error.

13 At [14].

14 At [14].

Submissions – Mr Hall

[25]      Ms Reilly, appearing for Mr Hall today, accepts that the starting point of two years and 10 months for the burglary was appropriate. But she says that the starting point of 14 months for the first set of family violence offending was too high. There was no attack on the head or punches, and other decisions of this Court indicate the starting point should have been six months.15

[26]      In the written submissions no issue is taken with the six-month uplift for the offending on 8 December, which included the breach of a protection order. But counsel argue that the provisional sentence should have been in the range of three years and 10 months’ imprisonment. From this he says there should have been a discount of 20 percent for totality; pointing to Court of Appeal authority where such discounts were allowed.16

[27]      While accepting that some uplift for Mr Hall’s criminal history was appropriate, the written submissions suggest that the discount for remorse should have been higher. Counsel also point to the prospects of rehabilitation. Mr Hall has been assessed as a suitable candidate for the Tai Aroha Residential Programme and he is willing to attend. Those factors, it is suggested, should warrant a further discount of between 10 and 15 percent.

[28]      Applying this and the guilty plea discount of 25 percent would have brought Mr Hall’s sentence within range of home detention which counsel suggests should be granted.

15 In L v Police [2017] NZHC 1463 the offender tracked her daughter down at the local netball courts and punched her to the left side of the head, having been told that she was misbehaving. She then took her home and told her to go outside to the carport area and punched her again in the face, to the left side of the head, and kicked her three times in the buttocks with steel-capped gardening boots. Whata J described a starting point of five to nine months’ imprisonment as “clearly within range”. In Williams v R [2017] NZHC 720 the offender slapped her five-year old son once to the left side of his face while he was in hospital for routine surgery. He suffered redness but no lasting injury. Venning J did not disturb the starting point of four months on appeal.

16 Opetaia v R [2013] NZCA 434 and Haywood v R [2015] NZCA 551.

Submissions – the respondent

[29]      Mr Jenkins, for the respondent, points out that Mr Hall benefited from Judge Hollister-Jones’ miscalculations to the tune of some six-and-a-half months. All of the starting points and uplifts imposed by the Judge are said to have been appropriate; although, according to Mr Jenkins, the two-month discount for remorse was exceedingly generous given Mr Hall’s criminal history.

Discussion

[30]      I must allow Mr Hall’s appeal if I am satisfied that there is an error in the sentence appealed from such that a different sentence should be imposed.17 Ultimately, the focus on appeal is on the sentence imposed, rather than the process by which the end sentence is reached.18

[31]      Thus, while I accept that there is some force in Mr Jenkins’ submissions about the Judge’s miscalculations, that is not determinative. What matters is whether the end sentence, however it was arrived at, was within the available range and appropriate. I note also that the impact of the first arithmetical error is somewhat academic. The Judge later made an adjustment for totality because he considered, apparently, that a sentence of four years’ imprisonment was appropriate to recognise the seriousness of the offending overall, before applying the discount for the guilty pleas. I am not disposed to disagree with the Judge that an end sentence of four years before the plea discount was an appropriate sentence, or at least within the range of appropriate sentences available.

[32]      An appellate Court has the power to increase a sentence on appeal by an offender if it considers the original sentence was inadequate.19 This was a power

17 Criminal Procedure Act 2011, s 250(2).

18 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

19 See, for example, Gee v Police HC Auckland AP54/89, 28 April 1989; Perry v Police HC Dunedin AP80/90, 19 July 1990; Easterbrook v Police HC Christchurch AP185/91, 16 August 1991; Black v Police HC Timaru AP80/91, 13 December 1991; Konig v Police HC Auckland AP12/97, 18 April 1997; Saunders v R HC Dunedin AP42/98, 28 October 1998; Baledrokadroka v Department for Courts HC Hamilton AP73/00, 15 December 2000.

reserved under old legislation.20 The appellate Court was explicitly empowered to quash the sentence and pass “such other sentence warranted in law (whether more or less severe) in substitution therefor” as the Court thought ought to be passed. Nothing in the Criminal Procedure Act 2011 indicates any intention by Parliament that the courts should take a different approach under that Act.

[33]So, two issues must be addressed:

(a)First, was the sentence of two years and ten months’ imprisonment, as imposed by the Judge, within the range reasonably available to the Court?

(b)Second, if so, should the sentence be increased to the sentence the Judge intended to impose? Answering that question would entail considering whether the higher sentence was also within the available range.

[34]      The starting point of 14 months for the first set of offending was appropriate and I do not think the cases cited by counsel for Mr Hall indicate otherwise. Each of those cases involved an assault on a child only. Mr Hall’s relevant offending involved one assault on a child and two separate assaults against M.

[35]      Further, I do not regard it as helpful to base a discount for totality on a percentage approach. Such a discount relies on a judicial assessment of the circumstances of each case and whether the total end sentence reached on a combination of the sentences for individual offences is out of proportion to the overall criminality of the offending.

[36]      Given Mr Hall’s extensive criminal history, particularly the repeated instances of family violence, it would have been open to Judge Hollister-Jones to refuse to give a discount for remorse.21 Similarly, while a discount may be given to recognise a defendant’s efforts towards rehabilitation, it is a factor properly left for the Judge’s

20 For the powers of the High Court on appeal against sentence see s 121 of the  Summary Proceedings Act 1957; for the powers of the Court of Appeal and Supreme Court see s 385 of the Crimes Act 1961.

21 R v Ngamo [2009] NZCA 512 at [9].

assessment and may be refused if the defendant has an extensive criminal history.22    I cannot say that Judge Hollister-Jones’ failure to recognise this factor resulted in an end sentence that was manifestly excessive. Indeed, given the arithmetical errors that I have outlined, Mr Hall was fortunate not to have been sentenced to a longer term of imprisonment.

[37]      The overall starting point of four years’ imprisonment was entirely within range. Indeed, were it not for the miscalculation it would have been six months higher, and I also consider that such a starting point would not have been manifestly excessive. From there it would have been open to the Judge to apply a sterner uplift for Mr Hall’s previous convictions and breach of supervision. And given my comments on the appropriate discounts, I consider a sentence of four years’ imprisonment before taking the guilty pleas into account may be regarded as a generous one. The final, inadvertent discount of two months served as a further boon to Mr Hall. It follows that it is my view that the end sentence was far from manifestly excessive. Indeed, it could readily be described as lenient.

Result

[38]      The respondent has not sought an increase in the sentence to correct Judge Hollister-Jones’ technical error at the end, and I do not in the circumstances consider it would be appropriate to correct that error by increasing the sentence. Mr Hall has embarked on a sentence of imprisonment on the basis that he faces one of two years and 10 months and it would not be fair to him nor to assist his rehabilitation to increase the sentence any further. Moreover, an extra two months would not add anything significant to the punitive elements of the sentence or to his prospects of rehabilitation. In the circumstances, I simply dismiss the appeal.

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

Toogood J

22     Ross v Police [2015] NZHC 1633 at [43].