Hamiora v Police

[2013] NZHC 98

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-419-87 [2013] NZHC 98

BETWEEN  AARON JAMES HAMIORA Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         7 February 2013

Counsel:         T Sutcliffe for Appellant

J E Tarrant for Respondent

Judgment:      8 February 2013

JUDGMENT OF KATZ J

In accordance with r 11.5 High Court Rules

I direct the Registrar to endorse this judgment with a delivery time of 3 p.m. on 8 February 2013.

Solicitors:           Crown Solicitor, Hamilton – [email protected]

Copy to:            T Sutcliffe, Hamilton –  [email protected]

HAMIORA V NEW ZEALAND POLICE HC HAM CRI-2012-419-87 [8 February 2013]

Introduction

[1]      Aaron Hamiora appeals against a sentence of two years and seven months’ imprisonment imposed by Judge Tompkins in the District Court at Hamilton following his pleas of guilty to charges of attempting to pervert the course of justice and assault with a weapon.

[2]      Mr Hamiora appeals on the grounds that:

(a)       the  sentence  was  manifestly  excessive  because  the  starting  points adopted in respect of both charges were too high; and

(b)      the Judge failed to give proper consideration to the totality principle.

Facts

Assault with a weapon

[3]      On  19  December  2011,  the  complainant  and  an  associate  went  to  Mr Hamiora’s home as the complainant had arranged to sell his car to Mr Hamiora. After speaking for approximately 30 minutes, Mr Hamiora left for a short time.  He returned holding a rifle.

[4]       Mr Hamiora pointed the rifle at the complainant’s face, stating “It’s gonna go down like this” and “this is how it’s gonna go down”.  As the complainant walked away, Mr Hamiora demanded he walk back toward him otherwise he would shoot him.   Fearful of being shot, the complainant started to walk back towards Mr Hamiora, while Mr Hamiora continued to point the weapon at him.

[5]      Mr Hamiora then attempted to push the complainant into a shed, but the complainant resisted.   Following this Mr Hamiora pointed the weapon at the complainant again and threatened to “put a hole in him.”  The complainant was able to  escape  when  Mr  Hamiora  became  distracted  by  the  complainant’s  associate

driving up the driveway in a vehicle.   The complainant and his associate fled and contacted police, who arrested Mr Hamiora a short time later.

Attempting to defeat the course of justice

[6]      Mr  Hamiora’s  then  partner  witnessed  the  above  incident.     She  was subsequently served with a witness summons to appear as a prosecution witness.  Mr Hamiora became aware of this and told the victim in a phone conversation not to go to court because without her evidence he would walk free.  He also told her to hide at his sister’s house until the court case was finished.   The victim indicated she would not go into hiding and would attend court.

[7]      Mr Hamiora then sent a series of text messages to the victim on 22 May

2012, stating:

8:52 am: 24th of june n dnt go witness or nuthnk n avoid pigs

9:11am: Koz they wnt u 2 testifie against me

1:50pm: I dnt gve a fuk bwt papers u nead 2 ring me or il hav 2 handle it terys way

2:27 pm: Dnt fuk arwnd koz I aint playn

[8]      The victim  understood the reference to “terys  way” as being a threat  of physical harm, as Tery is an associate of Mr Hamiora who is known for physical violence. A further text from Mr Hamiora on 23 May 2012 stated “Yor Ovas”.

[9]      On 24 May 2012, the victim received a phone call from Mr Hamiora stating that if she went to court, he would kick her head in.  The victim hung up the phone. Mr Hamiora called her again, but this time the victim’s sister answered the phone. Mr Hamiora, thinking he was speaking to the victim, stated “Fuck you, fuck this. Watch out I’m going to get you”.

[10]     On  9  June  2012,  the  victim  began  to  receive  text  messages  from  Mr

Hamiora’s sister telling her not to give evidence in court.

District Court

[11]     After setting out the facts, the District Court Judge reviewed Mr Hamiora’s pre-sentence report.   The report assessed Mr Hamiora at being a high risk of reoffending and of causing harm to others given his extensive conviction history, which includes numerous convictions for violent offending.

[12]     Judge Tompkins structured Mr Hamiora’s sentence in this way:

(a)      A starting point of 15 months’ was adopted for the assault with a weapon charge.

(b)      This was uplifted by 3 months for previous convictions.

(c)       A 25 per cent discount was applied for the guilty plea.  This took the

end sentence to 13 months’ for the assault with a weapon charge.

(d)The Judge took a starting point of 2 years for the perverting the course of justice charge.   The Judge noted the premeditated nature of the offending and the concerted attempt over a period of time to dissuade the victim from giving evidence.

(e)       A 25 per cent discount was afforded for the guilty plea, bringing an

end sentence of 18 months’ for perverting the course of justice.

(f)      Cumulative sentences were found to be appropriate, resulting in a total end sentence of 2 years and 7 months’ imprisonment.

(g)The Judge felt that this was proportionate to the overall gravity of the offending and did not require further adjustment for totality.

Decision

[13]     Mr Sutcliffe submitted on behalf of Mr Hamiora that the starting points in respect of both charges were too high and that the Judge failed to give proper consideration to the totality principle.  I will address each issue in turn.

Starting point – assault with a weapon

[14]     There is no guideline authority for assault with a weapon pursuant to s202C Crimes Act  1961.    The  maximum  penalty  is  5  years  imprisonment.    Both  the appellant and the Crown were unable however to provide the Court with any cases under s 202C  which were directly comparable to this case.   Most  of the cases referred to by counsel either involved multiple counts, where the final sentence was reduced  having  regard  to  the  overall  totality,  or  involved  actual  violence  and

resulting injuries to the victim.1

[15]     The appellant submitted that the present case is significantly less serious than such cases and that a six month starting point was therefore appropriate.  There was no physical injury, only a threat to injure, albeit with a weapon that can cause irreparable damage or death.  The Crown’s response to this submission was that, in relation  to  assault  with  a  weapon,  it  is  the  potential  for  injury,  rather  than  its

occurrence, that is important in assessing the seriousness of the offence.2   As such,

many of the cases dealing with wounding or injury charges have a different focus –

the injury rather than the potential for injury – and may be of limited assistance.

[16]     None of the cases under s 202C referred to by counsel arose in the context of the presentation of a weapon accompanied by threats of violence, as opposed to an actual assault with a weapon.   I therefore find them to be of limited assistance in relation to this particular offending, other than setting out some general parameters. In some ways the present offending is more analogous to “demanding with menaces” types of offences, in that the firearm was apparently used to attempt to extort the

complainant’s vehicle from him.

1      R v Baldwin CA 518/95 4/12/95; R v Clark CA 442/97 20/11/97; R v McMillan CA 317/01

31/10/01; R v Shaw HC Wellington T6196/02, 30/05/03.

2      R v Hensley CA 50/02, 18 April 2002.

[17]     The present offending is also similar in some respects to that in R v W.3     In that case the offender, a medical practitioner with an unblemished record, found his estranged wife and a male companion in bed.   He took a firearm from a nearby cupboard.  It was not loaded, but he told the victims that it was.  He pointed it at his estranged wife’s head and chest and also at her partner.  A physical struggle ensued during which the male complainant was punched.  Eventually the gun was wrestled off him.   The defendant pleaded guilty to burglary, committing an assault with a firearm contrary to s 198B(b) of the Crimes Act 1961 and common assault.  On the charge of assault with a firearm, the Judge’s starting point of 2 years six months was reduced on appeal to 2 years, which also gave weight to the appellant’s unblemished record.

[18]     I accept the Crown submission that in assessing the overall criminality and culpability of Mr Hamiora’s offending the type of weapon used, the circumstances of its use and the manner of its use should all be taken into account. Salient features include that:

(a)       the weapon (a firearm) was particularly lethal, with the potential for great harm;

(b)the  weapon  was  pointed  at  the  victim  and  was  accompanied  by repeated serious threats of violence;

(c)       the victim was in a particularly vulnerable position and would have been extremely fearful given the threats being made by Mr Hamiora;

(d)      the incident was unprovoked;

(e)       the  attempt  to  force  the  complainant  into  a  shed  by pointing  the weapon at him has sinister overtones and is an aggravating feature;

(f)       the incident only came to an end because Mr Hamiora was distracted, allowing the complainant to escape.

[19]     The overall incident was a serious one, despite the fact that there was no actual physical violence.  In terms of potential for harm a firearm is clearly one of the more serious weapons that can be employed.  The potential for injury in this case was high given that the firearm was pointed at the victim’s face.  (Although I note that counsel for Mr Hamiora submitted there is no evidence that the firearm was loaded or even that it was real).  Numerous threats and demands were made.  If the appellant had not been distracted it is possible that the outcome would have been much more serious.

[20]     In R v W4   the Court of Appeal observed that presenting a firearm is any circumstances is serious.  Leading people to believe that it is loaded is more serious. Having a firearm which is actually loaded is more serious still.  In this case, at the very least, Mr Hamiora clearly led the victim to believe that the rifle was loaded. Whether it actually was or not is not known.

[21]     The maximum penalty for the offence is 5 years.  Mr Hamiora’s offending is obviously not at the most serious end of the scale.  Sentences close to the maximum will usually involve a significant degree of physical violence or harm.  Nevertheless the seriousness of this incident cannot be downplayed.  It was no doubt terrifying for the victim and the potential for harm was high.

[22]     Taking all of the above factors into account I am not persuaded that the starting point of 18 months was excessive.  In my view it was within the appropriate sentencing range available to the Judge.

Starting point – attempting to pervert the course of justice

[23]     There is no guideline case for attempting to pervert the course of justice.  The circumstances in which this offending arises varies greatly.

[24]     Mr Sutcliffe submitted that the starting point of 2 years on this charge was

excessive and that a more appropriate starting point would have been one year’s

imprisonment.  He noted that no actual face to face threats were involved.  Further, the threats were unsuccessful as the victim did not agree to refuse to give evidence.

[25]     The leading case is R v Hillman.5    That was a 1992 case which was followed in a number of subsequent cases, prior to finally being reported in 2005.  The Court of Appeal observed in Hillman that:

Any  attempt  to  dissuade  a  witness  from  giving  evidence  strikes  at  the administration of justice and must be met by the Courts with a stern response

… in all cases of this kind a condign and deterrent sentence is required because of the nature of the offending, striking as it does at the proper

administration of justice …

[26]     The Court of Appeal in R v Clutterbuck6 and Potter J in R v Dutt7 affirmed the position in Hillman stating that it was clearly established that a benchmark of 3 years imprisonment was required for relatively serious cases and a sentence in the range of

18 months to 2 years imprisonment is suitable for less serious attempts to pervert the course of justice.  While all attempts to pervert the course of justice are serious, in my view witness intimidation is particularly serious, and that has been reflected in the case law.

[27]     Counsel for Mr Hamiora referred to four cases, where the starting point for perverting the course of justice was significantly less than here.8    However, only R v Bishop9 is comparable in that it involved witness intimidation.  In that case a starting point of ten months was adopted in relation to a spontaneous outburst on a single occasion.  I do not find cases such as R v Tamati10  (attempt to create a false alibi) or Stevens v Police11  (provision of false information to police by offender) particularly helpful.   Cases in which attempts have been made to conceal or destroy evidence have tended to attract significantly lower starting points than cases involving witness

intimidation and accordingly are not suitable benchmarks in this case.

5      R v Hillman [2005] 2 NZLR 681.

6      R v Clutterbuck CA 372/99, 17 November 1999.

7      R v Dutt HC Auckland, 2 April 2004.

8      R v Baldwin CA518/95, 4 December 1995; R v Clark CA442/97, 20 November 1997; R v

McMillan CA317/2001, 31 October 2001; R v Shaw HC Wellington T 6196/02, 30 May 2003.

9      R v Bishop HC Gisborne CRI-2010-016-2883, 29 July 2011.

10     R v Tamati [2012] NZHC 221.

11     Stevens v Police [2012] NZHC 871.

[28]     Mr Hamiora’s actions in this case were in the moderately serious range.   I acknowledge that the attempted dissuasion was not done in person, only via phone or text.  However the threats and intimidation were not “one off” but were persistent and relatively frequent.   The messages were threatening and included an implied threat of violence.

[29]     The victim was fearful for her and her children’s safety.   This would have been compounded by the fact that she was around 7 months’ pregnant at the time and fearful that any harm done to her might impact on the pregnancy.  The fact that she did not give in to the threats is a testament to her courage.

[30]     I consider the present offending to be more serious than that in Hillman. Mr Hillman twice (on the same day) told his girlfriend to drop charges against one of his associates.   He got angry when she said she wouldn’t.   He stormed out.   On the second occasion the complainant’s father asked him to leave.  Mr Hillman did not threaten to harm his girlfriend if she didn’t withdraw her complaint.   He did not repeat his demands subsequently.

[31]     The threats in the present case were in my view more serious in nature and involved threats of violence.  They were also much more persistent.  Although such threats were made over the telephone and by text, rather than in person, they were still, not surprisingly, perceived as very threatening and intimidating by the recipient.

[32]     As the Court of Appeal observed in Hillman, this type of behaviour strikes at the very heart of our justice system.   I am not persuaded that a two year starting point was manifestly excessive in the circumstances.

Totality principle

[33]     Pursuant to the totality principle in s 85 of the Sentencing Act 2002 it is necessary to ensure that the total sentences the offender is to serve is not wholly out of proportion to the gravity of the offending.

[34]     In relation to the totality principle the Court of Appeal in R v Johansen12

stated:

… when an initial assessment of the proposed sentence has been made it is necessary that the Judge stand back. … to look in a broad way at the totality of the criminal behaviour (that is, the conduct leading to the first sentence, as well as the offending that occasioned the second) and, we add, the Judge should also look at the total resulting penalty.

[35]     The Court of Appeal recently affirmed the application of the totality principle in this way in Skelton v R.13

[36]     Judge Tompkins approached the issue in this case in the following way:14

Those two sentences are to be served cumulatively so an end total sentence of two years, seven months is today imposed which applying the totality principle in my view is not disproportionate to the level of culpability of this offending.

[37]     The Judge accordingly expressly turned his mind to the totality principle. The question therefore is whether he erred in concluding that the totality principle did not require a reduction in the end sentence, to appropriately reflect the culpability of the overall offending.

[38]     I  am  not  satisfied  that  the  Judge  erred  in  his  application  of  the  totality principle.  Cumulative sentences were appropriate.  While a small reduction could possibly have been justified for totality, the end sentence was certainly within the sentencing range available to the Judge.  A total end sentence of two years and 7 months was not manifestly excessive or out of proportion to the overall gravity of

the offending.

12     R v Johansen (1997) 15 CRNZ 111 (CA).

13     Skelton v R [2011] NZCA 35 at [33] and [34].

14 At [9].

Result

[39]     Mr Hamiora’s appeal against sentence is dismissed.

Katz J