Hammon-Henry v The the King
[2022] NZCA 446
•20 September 2022 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA50/2022 [2022] NZCA 446 |
| BETWEEN | STEVEN BARRY HAMMON-HENRY |
| AND | THE KING |
| Hearing: | 20 July 2022 |
Court: | Courtney, Thomas and Peters JJ |
Counsel: | A D Hill for Appellant |
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 and demanded that he come outside.
[8] We have viewed the CCTV footage of the events which followed. The complainant ran out of the unit, and the defendants, again excluding Mr Sullivan‑Brown, chased and caught him. They then proceeded to punch and kick the complainant whilst he lay on the ground. The appellant punched the complainant in the face at least seven times and kicked him in the face twice.
[9] A woman occupying an adjacent motel unit stepped outside but quickly returned inside when her young child also came out. The appellant and Mr Palmer responded to this event by walking towards the woman’s unit, making aggressive gestures and gang signals.
[10] The defendants departed shortly afterwards, leaving the complainant on the ground. It is clear from the footage and the summary of facts that the complainant received a severe beating. The summary of facts records that he sustained multiple fractures to his face and haemorrhages to an eye and to his brain, for which he required hospital treatment. He also suffered an ongoing concussion.
[11] With the exception of Mr Sullivan-Brown, who was charged as a party to the offending, the others to whom we have referred were charged as principal offenders.
Sentence indication and disputed facts
[12] In late October 2020, Judge Snell gave the defendants a sentence indication, adopting a starting point of eight years’ imprisonment for the principal offenders and advising that any defendant who accepted the indication within the following week would receive a 25 per cent reduction for his guilty plea. Discounts for other mitigating factors were left for sentencing.
[13] The appellant did not accept the indication. He entered a guilty plea in early November 2020, but sought a disputed facts hearing on the basis that the summary of facts contained errors which, if corrected, would reduce his culpability.
[14] The disputed facts hearing took place before Judge Cooper on 19 January 2021. Of the four points the appellant disputed, he succeeded on one only. This related to a statement in the summary of facts that the appellant had taken a photo of the complainant’s face as he lay on the ground. The Judge accepted there was no evidence to support this statement. He did not, however, consider this rendered the appellant any less culpable than the other defendants. Having viewed the CCTV footage, we consider the Judge’s assessment entirely correct.
[15] The Judge sentenced Messrs Friis, Rhind and Palmer on the morning of 12 February 2021. The appellant was sentenced that afternoon as Mr Nabney, his then counsel, had been unavailable earlier in the day. As it turns out, due to oversight, the Judge’s sentencing remarks in respect of the appellant were not recorded. The Judge subsequently prepared a minute of 24 January 2022, setting out how he arrived at the appellant’s sentence.
[16] From a starting point of eight years’ imprisonment, the Judge allowed the appellant a five per cent, or six-month, reduction for remorse; a further 20 months, being 20.8 per cent, for his guilty plea; and then a further four months to achieve a degree of parity between the appellant’s end sentence and that of Mr Rhind and Mr Palmer, whose culpability the Judge assessed as on a par. As we have said, the appellant’s end sentence was five years, six months’ imprisonment. The end sentence for each of Mr Rhind and Mr Palmer was five years, two months’ imprisonment. As appears below, that four month difference essentially derives from the appellant’s lesser discount for his guilty plea.
Appeal
Offer of reparation
[17] Mr Hill submits that we should allow the appellant an eight or nine month reduction for his willingness to pay $2,000 to the complainant on account of emotional harm the latter suffered as a result of the offending.
[18] In support of appeal, Mr Hill filed several affidavits, including from the appellant, his mother, Ms Hammon-Henry, and his grandfather, Mr Hammon. Crown counsel filed an affidavit from Mr Nabney. The appellant, Ms Hammon-Henry, and Mr Nabney were cross-examined on their evidence.
[19] We are satisfied from this evidence that the appellant wished to offer a payment of $2,000 to the complainant, that the appellant and his mother had discussed this with Mr Nabney prior to sentencing, and that they expected Mr Nabney to relay the offer to the Judge at sentencing. This was not done. Although Mr Nabney does not recall any discussion of such an offer, and his file contains no note of one, on the evidence before us we accept that such an offer was discussed. The appellant’s and Ms Hammon-Henry’s evidence is to this effect. In fact, Ms Hammon-Henry’s evidence was to the effect that Mr Palmer’s father told her that Mr Palmer would be making such an offer (which Mr Palmer did) and that she wished the appellant to be in a position to do likewise. Mr Hammon’s affidavit is to the effect that he put his mother, Ms Hammon-Henry, in funds to make the payment.
[20] Despite this, and for the following reasons, we are not satisfied that any reduction to the appellant’s end sentence is required on this ground, let alone one of up to nine months. This is because, as Crown counsel, Mr Thompson, submitted the appellant received the discount he would have received had the Judge known of his willingness to make the payment.
[21] The Judge gave Mr Palmer a discount of eight months to reflect both his remorse for the offending and his offer to make a payment of $2,000 to the complainant. Mr Friis received a combined discount of nine months for the same matters. As for the appellant, the Judge gave a six month discount for remorse and an additional four months to achieve parity with Mr Rhind and Mr Palmer. In short, had the appellant’s offer been conveyed to the Judge, the total discount of 10 months would have remained the same, substituting (at most) four months for the payment in lieu of the discount given for parity purposes.
[22] Given that, we decline to allow any additional discount on this ground.
Section 27 Sentencing Act 2002
[23] Mr Hill next submits that the Judge erred in declining a discount for what he submits is a causal nexus between matters in the appellant’s background, identified in a report submitted pursuant to s 27 of the Sentencing Act 2002 (s 27 report), and the offending. Mr Hill submits that the Judge ought to have allowed a discount of 10 to 20 per cent for this.
[24] The Judge declined any reduction on this ground. In his minute, the Judge states that he was not satisfied that an addiction to methamphetamine was causative of the offending. With respect to the Judge, a draft notice of appeal Mr Nabney prepared shortly after sentencing suggests that Mr Nabney sought a discount on a broader basis than this. Indeed, the s 27 report does not suggest that the appellant was addicted to, or even particularly enjoyed, methamphetamine.
[25] Given this, and the absence of the Judge’s sentencing remarks, we shall consider the matter afresh.
[26] The s 27 report refers to the following matters. First, the appellant’s father, to whom the appellant was close, died at aged 44 from a recently diagnosed terminal illness, when the appellant was only 15 years of age. It appears from the s 27 report that the appellant spent much time with his father, including in many outdoor pursuits. The appellant reported that his father’s siblings drifted out of his life thereafter, meaning the appellant spent more time with Ms Hammon-Henry’s family, to whom he was not as close.
[27] Secondly, the appellant reported that he started using cannabis when he was 15, and that this quickly escalated to daily use. The appellant is also said to be a frequent user of MDMA, or ecstasy, but not of alcohol or methamphetamine. There is no suggestion in the s 27 report that the appellant considers himself addicted to any substance.
[28] Thirdly, the appellant reports that he has struggled with his mental health since his father’s death.
[29] On the positive side, however, the appellant has a good employment history and at the time of the offending was operating his own towing business. Ms Hammon‑Henry has been managing the business for the appellant whilst he is in custody. We add that it was apparent at the hearing that Ms Hammon-Henry is fully supportive of the appellant.
[30] Mr Hill submits that there is “an obvious link” between the matters in the report and the offending. He submits, correctly, that it is not necessary for the Court to be satisfied that the matters referred to in the s 27 report are the proximate cause of the offending. Rather, it is sufficient if such matters might be considered to have impaired the appellant’s choice and to have diminished his moral culpability.
[31] Mr Hill also submits that the appellant’s background is similar to that of Mr Rhind’s. The Judge allowed Mr Rhind a combined discount of eight months for remorse and matters identified in a s 27 report. We address this submission below.
[32] In response, Mr Thompson submits that this is not a case in which a discount was warranted, as no causative link between the appellant’s background and his offending is demonstrated. Mr Thompson submits that recent authorities of this Court require that link be demonstrated before any discount is awarded.[4]
[4]Herlund v R [2021] NZCA 71 at [51]–[54]; Cooper v R [2020] NZCA 510 at [24]–[26]; and Laipato v R [2021] NZCA 562 at [18]–[20].
[33] Mr Thompson submits that there is no evidence that the appellant has been deprived socially or economically, such that a link is readily apparent. He submits that none of the matters in the s 27 report can be seen to have impaired the appellant’s choices or diminished his culpability. In contrast to many of the unfortunate cases before the Courts, the appellant has not been institutionalised from a young age or deprived of opportunities by his upbringing.
[34] We are not satisfied that a discount for the matters contained in the s 27 report is warranted. We accept Mr Thompson’s submission that none of the matters canvassed in the report are of such significance that they can be taken as diminishing the appellant’s culpability or contributing to his offending on this occasion. We accept the death of the appellant’s father would have been a great loss to him, but as we have said, he has a good employment history, has established his own business, and plainly has the support of his mother and her family.
[35] Lastly on this point, and with respect to Mr Hill, the appellant’s background does not appear at all similar to Mr Rhind’s. In sentencing Mr Rhind, the Judge said that there were some “very destructive aspects” to Mr Rhind’s childhood and early background. A subsequent period of stability ceased when Mr Rhind’s grandfather died, so that from the age of 15, Mr Rhind was back “in an unstable ... and an abusive situation”. The Judge said that he did not see any connection between the matters in Mr Rhind’s report and his offending, except that a “small reduction” was warranted on account of the destructive aspects of Mr Rhind’s upbringing. As we have said, that reduction was eight months, including for remorse.
[36] To conclude, given the absence of any established link between the matters in the s 27 report and the offending, no discount is warranted or required.
Discount for guilty plea
[37] Mr Hill also submits that the Judge erred in not allowing the appellant the full 25 per cent discount available for his guilty plea, as the Judge had allowed for Messrs Rhind, Palmer and Friis. Mr Hill also submits that Mr Nabney did not warn the appellant that he might receive less than 25 per cent if he were unsuccessful at the disputed facts hearing; that the hearing was of short duration in any event; and that, unlike Nathan v R, it was not an entirely unmeritorious attempt by the appellant to shirk responsibility for his role in the offending.[5]
[5]Nathan v R [2011] NZCA 284.
[38] We do not accept these submissions.
[39] First, it is clear from records on Mr Nabney’s file that he did warn the appellant that the discount he received for his guilty plea could reduce if he did not succeed at the disputed facts hearing.
[40] Secondly, credit for an early guilty plea reflects the saving in the time and cost otherwise required to be devoted to a matter.[6] It also reflects the defendant’s acceptance of responsibility.[7] A disputed facts hearing at which a defendant does not succeed, even one of short duration, consumes resources and may be viewed as inconsistent with an acceptance of responsibility.
[6]Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [45].
[7]Nathan v R, above n 5.
[41] As we have said at [14] above, the appellant succeeded on one only of the four points he advanced at the hearing, and even that success was inconsequential. The other points the appellant advanced were quite unmeritorious. They included an assertion that he had gone to the motel on the night of the offending to purchase methamphetamine from the complainant. The Judge found this suggestion improbable, given Mr Palmer’s unsatisfactory experience of the complainant as a supplier. The appellant also advanced a suggestion that he had punched and kicked the complainant fewer times than the summary recorded, something the appellant explained to us as having derived from his initial viewing of the footage on a small laptop screen. We note that Mr Nabney conceded at the hearing before the Judge that this suggestion could not be sustained.
[42] The unmeritorious nature of these points indicate to us, and we believe the Judge, that the appellant was seeking to avoid full responsibility for his actions.
[43] Lastly on this point, the Judge’s minute records that at sentencing Mr Nabney sought a discount of 20 per cent, that is Mr Nabney did not ask for 25 per cent. In cross-examination before us, Mr Nabney said he believed that he had asked the Judge for the full discount of 25 per cent, but that he could not now be sure. For ourselves, we would have considered a submission seeking a discount of 25 per cent ambitious, given the outcome of the disputed facts hearing. The Judge’s discount of almost 21 per cent was generous to the appellant.
[44] To conclude on this and the other points advanced, we consider the appellant was treated generously by the Judge, and there is no basis for reducing the appellant’s sentence.
Result
[45] The application for an extension of time to appeal is granted.
[46] The appeal against sentence is dismissed.
Solicitors:
Te Tari Ture o te Karauna | Crown Law, Wellington for the Respondent
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