Hammon-Henry v The the King - [2022] NZCA 446

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA50/2022
[2022] NZCA 446

BETWEEN	STEVEN BARRY HAMMON-HENRY Appellant
AND	THE KING Respondent

Hearing:	20 July 2022
Court:	Courtney, Thomas and Peters JJ
Counsel:	A D Hill for Appellant B J Thompson for Respondent
Judgment:	20 September 2022 at 11.30 am

JUDGMENT OF THE COURT

A The application for an extension of time to appeal is granted.

B The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Peters J)

[1]        The appellant, Mr Hammon-Henry, appeals against a sentence of five years and six months’ imprisonment imposed by Judge Cooper in February 2021 on one charge of wounding with intent to cause grievous bodily harm.[1]
[1]R v Hammon-Henry DC Rotorua CRI-2020-063-1283, 24 January 2022.
[2]        The appellant contends the sentence is manifestly excessive. Mr Hill, counsel for the appellant, does not take any issue with the Judge’s starting point of eight years’ imprisonment. However, he submits that we should allow the appellant discounts for the two matters referred to below, and he also seeks an increase in the discount the Judge allowed for the appellant’s guilty plea, from just more than 20 per cent to 25 per cent.
[3]        The appeal is brought pursuant to s 244 of the Criminal Procedure Act 2011. This Court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed, and that a different sentence should be imposed.[2] It must dismiss the appeal in any other case.[3]

Extension of time

[2]Criminal Procedure Act 2011, s 250(2).

[3]Section 250(3).

[4] The appeal was filed in early February 2022, more than 10 months out of time. The appellant’s explanation for this delay is that, after sentencing, he experienced considerable difficulty communicating with counsel so as to give instructions regarding an appeal. Prisoners were locked down for all but an hour or two every day to minimise the spread of COVID-19. This made it difficult for the appellant to obtain access to a telephone.
[5] We accept the appellant’s evidence on this point and, there being no prejudice to the Crown, grant the required extension of time.

Background

[6] The offending comprised retaliation against the complainant, a Mr Carson, for an unsatisfactory drug deal in mid-April 2020. The complainant had been due to supply one of the appellant’s co-offenders, Mr Palmer, with methamphetamine, but instead had supplied Mr Palmer with sugar. After consuming alcohol one evening, Mr Palmer, the appellant, and three others, Messrs Rhind, Friis and Sullivan-Brown, planned a response.
[7] On 27 April 2020, Mr Friis arranged to meet the complainant at a motel where the latter was staying, on the pretext of a further drug deal. The five to whom we have referred, that is the appellant, and Messrs Palmer, Rhind, Friis and Sullivan-Brown, arrived at the motel at approximately midnight, in a car driven by the appellant. With the exception of Mr Sullivan-Brown, all surrounded the complainant’s unit…

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 Hammon-Henry v The the King

Details

AGLC: Hammon-Henry v The the King [2022] NZCA 446
Case: [2022] NZCA 446
Decision Date: 20 September 2022 at 11.30 am

CaseChat Overview and Summary

Steven Barry Hammon-Henry appeals against the sentence of five years and six months' imprisonment imposed on him by Judge Cooper in February 2021 for wounding with intent to cause grievous bodily harm. The appellant argues that the sentence is manifestly excessive, particularly in light of the Judge's starting point of eight years' imprisonment. Hammon-Henry's counsel contends that the appellant is entitled to discounts for his willingness to offer reparation to the victim and for the mitigating factors identified in a report submitted under section 27 of the Sentencing Act 2002. Additionally, the appellant's counsel argues that the discount for his guilty plea should be increased from just over 20% to 25%.

The Court of Appeal must determine whether there is an error in the sentence imposed by the trial Judge, and if so, whether a different sentence should be imposed. The Court must consider the appellant's arguments regarding the discount for his willingness to offer reparation, the discount for matters identified in the section 27 report, and the discount for his guilty plea. The Court must also consider the appellant's application for an extension of time to appeal.

The Court of Appeal accepts the appellant's explanation for the delay in filing the appeal, which was due to difficulties in communication with his counsel as a result of the COVID-19 lockdown. The Court grants the extension of time to appeal. The Court considers the appellant's arguments regarding the discounts and finds that none of the discounts sought by the appellant's counsel are warranted. The Court finds that the appellant received the same discount for remorse and parity as his co-offenders, and that the discount for his guilty plea was generous in light of the outcome of the disputed facts hearing. The Court dismisses the appeal against sentence.

The Court grants the appellant's application for an extension of time to appeal and dismisses the appeal against sentence. The sentence of five years and six months' imprisonment is upheld.

Orders