Hall v The Queen
[2021] NZHC 3123
•18 November 2021
IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE
CRI-2021-483-000015
[2021] NZHC 3123
BETWEEN IVAN JUNIOR HALL
Appellant
AND
THE QUEEN
Respondent
Hearing: 4 November 2021 Appearances:
D M Goodlet for Appellant
F E S F Girgis and M H Cooke for Respondent
Judgment:
18 November 2021
JUDGMENT OF EATON J
Introduction
[1] On 2 March 2021, the appellant, Ivan Junior Hall, pleaded guilty to charges of injuring with intent to injure,1 threatening to kill (2)2 and attempting to pervert the course of justice.3 The guilty pleas were entered following a sentence indication given by Judge Crayton in the Whanganui District Court on 23 February 2021. On 24 September 2021, Mr Hall was sentenced by Judge Krebs4 to 27 months and two weeks’ imprisonment.5
1 Crimes Act 1961, s 189(2); maximum penalty five years’ imprisonment.
2 Section 306(1)(a); maximum penalty seven years’ imprisonment.
3 Section 117(e); maximum penalty seven years’ imprisonment.
4 I am told Judge Crayton was unavailable and Mr Hall consented to sentence being imposed by Judge Krebs.
5 R v Hall [2021] NZDC 19126.
HALL v R [2021] NZHC 3123 [18 November 2021]
[2] The sentence indication recorded that counsel for Mr Hall would be securing reports to address both cultural and addiction/rehabilitative factors and that final credits would be left open to be fixed at sentencing.
[3] Mr Hall appeals against the sentence on the ground that it was manifestly excessive. He submits that a greater discount should have been given for mitigating factors.
Background
[4] Mr Hall and the victim had been in a relationship for around nine years. They separated prior to November 2019. They have two children who were aged three and eight years old at the time of the offending. Fortunately, they were not present when the offending occurred.
[5] On 9 November 2019, the victim was at her home address when Mr Hall arrived uninvited. His new partner accompanied him. Mr Hall entered the house. As he approached the victim, he had in his hand a large butcher’s knife. He proceeded to punch her in the head a number of times. When she fell to the ground Mr Hall continued to punch her in the head and kick her approximately five times. He then stomped on her back.
[6] While she was lying on the ground Mr Hall grabbed her throat and strangled her to the point she thought she was going to pass out. As he strangled her, Mr Hall held the knife to her throat and told the victim he was going to kill her.
[7] The victim suffered a fracture to her nasal bone, a broken tooth, bruising to her lung, eyes and face.
[8] On 14 February 2020, Mr Hall was arrested and charged in relation to this offending. He was remanded in custody and a non-contact condition made pursuant to s 168A of the Criminal Procedure Act 2011 was imposed. On 3 March 2020, Mr Hall sent two letters to the victim in breach of that condition. In the letters he encouraged the victim to assist him to defend the charges and threatened to shoot an associate of the victim when he was released from prison.
Post sentence release
[9] An unusual feature of this case is that following the sentence indication and guilty pleas Mr Hall was released, with the consent of the respondent, on electronically monitored bail (EM bail) to participate in the Salvation Army Alcohol and Other Drug Residential Treatment Programme (the Bridge programme). He was admitted into that programme on 13 July 2021 and was discharged having successfully completed the programme on 19 September 2021.
[10] I am told that on discharge from the programme it had been proposed that EM bail would be varied to enable him to live at his father’s address in Taihape. I am told that address was found to be unsuitable as the address could not be electronically monitored. Consequently, given he had no available address for EM bail, Mr Hall was remanded in custody.
District Court decision
[11] At the sentencing indication, the Judge placed the offending in band 3 of Nuku v R.6 The Judge also referred to the framework in R v Taueki.7 The Judge noted the aggravating factors of the offending included serious violence occurring in the family violence context, punches and kicks to the head, strangulation to the point where the victim thought she was going to pass out, a threat to kill, possession of a knife and premeditation.
[12] The Judge adopted a starting point of three years’ imprisonment for the lead offence of injuring with intent to injure. He applied a six-month uplift to reflect the charges of threatening to kill and perverting the course of justice. This resulted in a starting point of three years and six months’ imprisonment. The Judge indicated a 25 per cent discount for guilty pleas would be appropriate.
[13] Judge Krebs adopted Judge Crayton’s sentence indication. The single issue at sentencing was the level of any further discount for personal mitigating factors. The
6 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
7 R v Taueki [2005] 3 NZLR 372 (CA).
new material before the sentencing Judge included a s 27 Sentencing Act 2002 cultural report.
[14] A Restorative Justice report was available and recorded that a pre-sentence interview had been held with Mr Hall at Whanganui Prison during which Mr Hall had expressed remorse for his offending and violence towards the victim. He wanted the opportunity to engage in a restorative justice conference to apologise face to face and “put things right”. The report noted that the victim had declined to engage with restorative justice.
[15] The Judge also had before him Mr Hall’s certificate of participation in a Causes and Effects workshop, a certificate of achievement for completing the Te Whakamanahia programme, a certificate of achievement for completing the Straight Thinking programme, a certificate of achievement for successful completion of the course of Te Aranga Mai and a certificate recording Mr Hall’s participation in an intensive literacy and numeracy programme.
[16] The Judge applied a discount of 10 per cent to reflect factors referred to in the cultural report and rehabilitation. Combined with a 25 per cent guilty plea discount, the end sentence of 27 months and two weeks’ imprisonment was imposed.
Principles on appeal
[17] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.8
[18] As the Court of Appeal observed in Tutakangahau v R, approving the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.9 It is only appropriate
8 Criminal Procedure Act 2011, ss 250(2) and 250(3).
9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.10
Submissions
Appellant’s submissions
[19] Ms Goodlet, on behalf of Mr Hall, submits a discount of 10 per cent ought to have been applied to reflect the matters contained in the cultural report. Ms Goodlet submits Mr Hall’s childhood background was one of emotional isolation, lack of adult support and direction, substance abuse and violence. She submits there is a clear link between this deprivation and Mr Hall’s offending.
[20] Ms Goodlet submitted a further 10 per cent discount is appropriate to recognise Mr Hall’s attendance at the Bridge Programme and his motivation to address his drug addiction. She relied on the reports describing Mr Hall’s motivation to rehabilitate as high and recording his willingness to address his thinking and behaviours that had led to his offending. She relied on the restorative justice report. She pointed to the various programmes that Mr Hall had undertaken during the remand period and submitted that these factors evidenced his high level of motivation to address the causative factors of his offending.
[21] Finally, Ms Goodlet submitted there should be a discrete discount to recognise the period of over two months spent on EM bail at the Bridge Programme.
Respondent’s submissions
[22] The Crown position is the end sentence was not manifestly excessive and Mr Hall’s personal background factors and efforts at rehabilitation are adequately recognised in the 10 per cent discount. Whilst Mr Girgis acknowledged that it would have been open to the Judge to allow a higher discount for mitigating factors, he submitted the end sentence was not manifestly excessive.
10 Ripia v R [2011] NZCA 101 at [15].
[23] Mr Girgis submitted the main drivers of Mr Hall’s offending appear to have been his use of methamphetamine and jealousy over the victim’s behaviour. Mr Girgis described the connection between Mr Hall’s background factors and his offending as tenuous and submitted the 10 per cent discount adequately recognises both personal factors and efforts at rehabilitation.
The Reports
[24] Did the Judge err in fixing the credit for personal mitigating factors at 10 per cent?
Section 27 Report
[25] The report describes Mr Hall growing up in a small rural township in the Waimarino district in the central North Island. Mr Hall reported that tikanga Māori and te reo Māori were not part of his life growing up. He met his first partner when they were still at primary school and they were in a relationship from age 13. They lived together for 12 years and had two children together. Tragically, their first baby died aged 18 months when Mr Hall was aged 15. Mr Hall described a good childhood “because there was always food in the cupboard” but referred to: “every weekend it was a party up at our place from Friday through to Sunday. It was just normal. Just what happened… My parents were alcoholics. There was always alot of drinking.” He remembered there being a lot of fighting.
[26] The report confirmed Mr Hall left school in the third form and began working in a local mill. At age 18 he moved to Auckland to follow his partner who was studying to be an accountant. Whilst in Auckland he was sentenced to his first term of imprisonment and it was whilst serving that sentence that he joined the Mongrel Mob. He remains a patched member of that gang.
[27] The report opines that substance use appears to be normalised throughout Mr Hall’s formative years. Mr Hall describes himself as having started drinking alcohol and smoking cannabis at age 13. By his early twenties he was using methamphetamine. That developed into a daily habit. “Everywhere I went the people around me were using it. It was easy to have.”
[28]The report author also recorded:
…another aspect of what has shaped Mr Hall is the taha Māori of himself and his whānau, or rather, the loss of nga mea Māori, and the apparent loss of understanding of tikanga and the values that underlie, whakapapa and reo. Mr Hall and his whānau can also be seen as the product of colonisation.
[29] Mr Hall acknowledges he was using methamphetamine at the time of the current offences and “saw this as a major contributor to what he did”. The report writer records the substance abuse appears to have been normalised throughout Mr Hall’s childhood and the writer infers that the environment would have left Mr Hall feeling very unsafe, alone and hyper-vigilant due to having to care for himself. The report writer concludes that the only form of self-regulation or coping mechanism Mr Hall was taught by his parents was that of using substances and violence.
[30] The report writer does not draw a conclusive causal nexus between Mr Hall’s childhood deprivation and his current offending.
The alcohol and drug report
[31] The Judge had the benefit of an alcohol and drug report dated 4 March 2021 and a progress report dated 30 May 2021. I have the benefit of the Bridge programme treatment summary (the exit report) completed following Mr Hall’s discharge from that programme on 19 September 2021. I need only summarise those reports.
[32] The March report describes a sustained history of alcohol and drug use and recommended Mr Hall attend the Bridge Programme in Wellington. The May report details Mr Hall’s progress at an introductory self-help course in cognitive behaviour therapy. It records Mr Hall having a better understanding of his impulse control, decision-making progress and how to manage stress. The report writer concluded Mr Hall had shown “a strong willingness to explore and address his thinking and behaviour that led to his offending”.
[33] The exit report is generally positive and describes Mr Hall as being well- behaved and compliant for the duration of the programme and records him engaging well in one-on-one sessions and in group work. It referred to his abstinence, his group sharing and his constant negative urine tests as evidencing that he was “ready to stop
using methamphetamine”. It was noted, however, that one hour before his scheduled graduation Mr Hall absconded from the programme before handing himself into the police in Whanganui.
Discussion
[34] Social, cultural and economic deprivation may result in impaired choice and diminished moral culpability.11 Where the deprivation is causative of the offending it may appropriately be regarded as a mitigating factor at sentencing.12 In this context, the causal linkage between the cultural matters and the offending does not require the court to be satisfied the matters are the proximate cause of the offending.13
[35]Relevantly, in Solicitor-General v Heta, Whata J commented:14
[50] The evidence of the presence of systemic deprivation (or social disadvantage more generally) on an offender need not be elaborate. The symptoms of systemic Māori deprivation are reasonably self-evident, including (among other things) intergenerational social and cultural dislocation of the whānau, poverty, alcohol and or drug abuse by whānau members and by the offender from an early age, whānau unemployment and educational underachievement, and violence in the home.
[36] Counsel for the Crown refers to the following cases as illustrative of the range of discount that is given for personal background factors:
(a)In Lee v R, where the Court of Appeal upheld a five per cent discount for personal background factors where the primary drivers for the offending were substance addiction and jealousy.15 The appellant was exposed to violence, gangs and drugs as a child. The Court accepted the sentencing judge’s observation that the appellant did not display genuine remorse, or any genuine prospect of rehabilitation.
11 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
12 At [158] – [163].
13 Carr v R [2020] NZCA 357 at [64].
14 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241.
15 Lee v R [2019] NZCA 539 at [60] and [61].
(b)In Whittaker v R the Court of Appeal increased the discount from four per cent to 9.5 per cent on account of parity with Mr Whittaker’s brother who was also involved in the offending.16
(c)In Clarke v R the Court of Appeal allowed a 10 per cent discount on account of the appellant’s personal background and rehabilitative prospects, including participation in adult learning courses.17 There, the appellant was disadvantaged from an early age, exposed to and the victim of intergenerational and family violence.
[37] Ms Goodlet argued that the discount of 10 per cent to recognise matters outlined in the cultural report was appropriate. Mr Girgis submitted that discrete discount should be fixed at about five per cent.
[38] It is clear Mr Hall’s childhood was marred by drugs, alcohol, violence and deprivation. I consider there are a number of matters in the report that indicate his background is likely to have impaired his choice and thus reduced his moral culpability. Accordingly, a discount to reflect these matters was appropriate.
[39] The more difficult question posed by this appeal is whether a discrete discount is appropriate to recognise Mr Hall’s rehabilitative measures. He has a long history of drug addiction and the acknowledged primary catalysts for this offending were drug use and jealousy. In my view, it was important that genuine efforts to address these factors were adequately recognised in fixing the appropriate sentence.
[40] A key factor in this case is Mr Hall was released from custody on EM bail in order to attend the nine-week residential Bridge Programme. He successfully completed that programme. It seems very likely a release on EM bail was agreed with a view to Mr Hall ultimately receiving a non-custodial sentence if he completed the Bridge programme. Unfortunately, that was not possible because his father’s address in Taihape could not be electronically monitored. That was a matter beyond Mr Hall’s control.
16 Whittaker v R [2020] NZCA 241 at [52].
17 Clarke v R [2021] NZCA 96.
[41] Beyond completing the Bridge programme Mr Hall had demonstrated his commitment to rehabilitation in completing a number of courses within the prison whilst on remand.
[42] Mr Goodlet submitted, and I accept, it is important that Mr Hall be encouraged to remain on the path of rehabilitation and that encouragement be reflected in the final sentence.
[43] In my view, a discount of 15 per cent to reflect both the cultural and rehabilitative factors and Mr Hall’s remorse is appropriate. A 25 per cent discount for guilty pleas was appropriate. Accordingly, the total discount for mitigating factors is 40 per cent. This results in a sentence of 25 months.
[44] Further, s 9(2)(h) of the Sentencing Act 2002 requires the Court to take into account time spent on EM bail as a mitigating factor. In assessing a discount for time spent on EM bail, the Court must consider:18
(a)the period of time spent on EM bail;
(b)the relative restrictiveness of the EM condition, particularly the frequency and duration of the offender’s authorised absences from the relevant address;
(c)the offender’s compliance with the bail conditions during this period; and
(d)any other relevant matter.
[45] Mr Hall was on a restrictive EM bail conditions at the Bridge programme for over two months. A reduction equating to less than half the time spent on EM bail where restrictive conditions are imposed is seen as an appropriate discount.19 I consider a further discount of one month is therefore appropriate.
18 Sentencing Act 2002, s 9(3A).
19 R v Rose [2017] NZHC 1488 at [46]; Prattley v Police [2014] NZHC 486 at [31]; R v Mihaka
[2014] NZHC 2921 at [43]; R (CA528/16) v R [2017] NZCA 210 at [14]; Parata v R [2017] NZCA
Result
[46] The appeal is allowed. The sentence of 27 months and two weeks’ imprisonment is quashed and substituted with a sentence of 24 months’ imprisonment. I impose the following special conditions to expire six months after the sentence expiry date:
(a)To attend an Alcohol and Drug assessment and/or counselling programme as may be directed by the Probation Officer.
(b)To attend a stopping Violence Programme. Details of the appropriate programme as may be directed by the Probation Officer.
(c)Not to contact or associate with the victim of his offending unless with the written permission of his Probation Officer.
(d)To attend any other such counselling, programme or treatment as may be directed by the Probation Officer.
...................................................
Eaton J
Solicitors:
Debbie Goodlet, Barrister & Solicitor, Whanganui Crown Law Office, Wellington
48 at [12] and [15]; Chea v R [2016] NZCA 207 at [109] and [111]; Keown v R [2010] NZCA 492
at [15]–[16].
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