Hansen v The Queen
[2020] NZHC 2129
•21 August 2020
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2020-419-54
[2020] NZHC 2129
BETWEEN DREW MICHAEL EVANS HANSEN
Appellant
AND
THE QUEEN
Respondent
Hearing: 21 August 2020 Appearances:
G Walsh for the Appellant
S D Taylor for the Respondent
Judgment:
21 August 2020
JUDGMENT OF GORDON J
This judgment was delivered by me on 21 August 2020 at 12 pm
Registrar/Deputy Registrar Date:
Solicitors: Crown Solicitor, Hamilton Counsel: G Walsh, Hamilton
HANSEN v R [2020] NZHC 2129 [21 August 2020]
Introduction
[1] The appellant, Drew Hansen, appeals a sentence of 25 months’ imprisonment imposed by Judge RG Marshall in the Hamilton District Court on 10 February 2020.1 Mr Hansen does not challenge his disqualification from driving. An appeal against conviction was abandoned.
[2] The sole ground of appeal is that the starting point adopted by the Judge on the lead charge of assault with intent to injure was too high. In consequence, the final sentence was manifestly excessive.
[3] The Crown submits the sentence was not manifestly excessive. The starting point was within the available range, and the discount given for guilty pleas was appropriate in the circumstances.
[4] The appeal was filed out of time due to issues arising from restrictions in place during the Covid-19 lockdown period. The respondent takes no issue with the late filing. Leave is granted to file the appeal out of time.
Background
[5] Between 1 April 2019 and 11 June 2019, Mr Hansen and the complainant were in a relationship and lived together at a house in Hamilton. Three other preliminary points provide relevant context. First, on 1 September 2018, Mr Hansen was disqualified from holding or obtaining a drivers licence for a period of one year from that date. Second, the complainant’s mother also lived at the house and was the lawful occupier. She served a trespass notice on Mr Hansen on 8 June 2019, with effect from the following day (to give him time to retrieve his belongings). Finally, towards the end of their relationship, the complainant became pregnant. Mr Hansen is the father and was aware of her pregnancy.
[6] During the course of their relationship, Mr Hansen assaulted the complainant on four separate occasions.
1 R v Hansen [2020] NZDC 2146.
[7] The first three occasions occurred on unspecified dates during the period of the relationship and are the subject of one representative charge of assault with intent to injure. The first took place in the laundry of their home. There was an argument and when the complainant attempted to leave the room, Mr Hansen blocked the door. Placing his hands around her throat, he raised her and held her against the wall while pressing on her throat. She was unable to breathe and lost consciousness for a few seconds. On the second occasion, the complainant was on a mattress in the lounge at their home. There was an argument. Mr Hansen approached her. He placed his hands around her throat and began choking and shaking her while she was on the mattress.
[8] The third assault occurred in the bedroom at their home. There was an argument. The complainant took a handheld weapon belonging to Mr Hansen to defend herself. Mr Hansen pushed the complainant out of the bedroom and up against a wall. He placed his forearm across her throat to pin her against the wall. Her breathing was obstructed by his action. She initially submitted to strangulation before striking the defendant with the weapon she held. He let her go at this point.
[9] On 8 June 2019, the complainant’s mother saw the defendant driving a car in breach of his disqualification from driving.
[10] The rest of the offending occurred from 9 to 11 June 2019, towards the end of the relationship and after the complainant’s mother had served a trespass notice. The fourth assault occurred in this context. First, on 10 June 2019, the complainant’s mother returned home to find Mr Hansen asleep in the lounge, in breach of the trespass notice. There was an argument and Mr Hansen departed when told Police were on their way. Mr Hansen drove away from the address in a car, in breach of his disqualification from driving.
[11] Later that day, there was an argument between the complainant and Mr Hansen at the house which escalated to the point that the complainant picked up a baseball bat to protect herself. Mr Hansen took it from her and threatened her with it. He used his free hand to take the complainant by the throat and, while squeezing her throat, dragged her across the room to a wall. The complainant was able to release herself
from his grip. This offending gave rise to the second charge of assault with intent to injure.
District Court decision
[12] The Judge said that he was taking the representative charge of assault with intent to injure (involving three assaults) as the lead charge and adopted a starting point of 24 months’ imprisonment. It seems however that in fact the Judge adopted that starting point for the representative charge of assault with intent to injure and the second charge of assault with intent to injure together. The decision records the submissions of Crown counsel and counsel for the defendant on the starting point and the range given by each was a global starting point for the two assault with intent to injure charges.2 Additionally there was no uplift for the second assault with intent to injure charge.
[13] The Judge added a one month uplift for the trespass charge, a five month uplift for the driving while disqualified charges and a one month uplift for relevant previous convictions. This gave a final starting point of 31 months’ imprisonment.
[14] The Judge expressed doubts about Mr Hansen’s remorse, given his lack of insight into his offending, and noted prior failures to complete rehabilitative programmes. A discount was given for an unspecified amount. The final sentence was 25 months’ imprisonment. The discount of six months’ imprisonment is in the vicinity of 20 per cent, presumably in consequence of Mr Hansen’s guilty pleas.
Approach on appeal
[15] Section 250(2) of the Criminal Procedure Act 2011 provides that the appeal must be allowed if there has been an error in the sentence imposed and a different sentence should have been imposed. While there is no mention in s 250(2) of a “manifestly excessive” sentence being a ground of appeal, it is consistent with the statutory language and “there is no reason not to use it when considering s 250(2)”.3 Mr Hansen must show that an error occurred in sentencing and that this error resulted
2 At [9] and [10].
3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].
in a sentence which was outside the range or otherwise not justified by accepted sentencing principles.4
Submissions
[16] Mr Walsh, for Mr Hansen, submits the starting point adopted by the Judge was too high. The end sentence was therefore manifestly excessive. He cites three cases in support of this submission. He says two – Kuhtz v Police5 and Bishop v Police6 – were more serious because weapons were used and the violence was prolonged. The starting point in Kuhtz was 12 months’ imprisonment and 27 months’ imprisonment in Bishop. Mr Walsh says a third case – Kanuta v R7 – is more similar to Mr Hansen’s offending where the starting point was 18 months’ imprisonment.
[17] On this basis, Mr Walsh submits the starting point should have been 20 months’ imprisonment. Mr Walsh does not challenge the uplifts applied by the Judge or the approximately 20 per cent discount for guilty pleas. Adjusting the starting point in this manner gives an end sentence of 22 months’ imprisonment.
[18] Mr Taylor, for the Crown, responds that the starting point properly reflected the seriousness of the offending. He submits it is not the case that Mr Hansen’s offending was less serious than that in either Kuhtz or Bishop. The aggravating features includes the actual use of violence, unlawful entry into a dwelling house, offending while subject to a sentence of intensive supervision for breaching release conditions, breach of trust arising from the relationship between Mr Hansen and the complainant and the vulnerability of the victim (who was pregnant at the time). Mr Taylor says the lead charge of assault with intent to injure was representative and encompassed four assaults, which taken alone, were all serious.
[19] Mr Taylor further submits that the discount given for guilty pleas, although not in dispute, was appropriate. If anything, he says, a lower discount could have been applied. The final sentence was within range.
4 Ripia v R [2011] NZCA 101 at [15].
5 Kuhtz v Police [2013] NZHC 111.
6 Bishop v Police [2018] NZHC 657.
7 Kanuta v R [2016] NZHC 436.
Analysis
[20] There is no guideline judgment for the offence of assault with intent to injure. However, in Tamihana v R, the Court of Appeal considered the approach in Nuku v R to be of assistance in sentencing for this type of offending.8 The Court of Appeal re-iterated this approach more recently, by majority, in Cunningham v R.9 Nuku is a guideline judgment for offences of wounding with intent to injure (a more serious charge than assault with intent to injure). The approach divides offending into three bands with reference to the aggravating factors set out in R v Taueki.10
[21] The relevant aggravating factors in Mr Hansen’s offending are attacking the head and vulnerability of the victim. She was in a domestic relationship with Mr Hansen and at least by the time of the last assault she was pregnant and Mr Hansen knew that. This places his offending in band two of Nuku as it involves two of the aggravating factors. A sentence of between two and three years’ imprisonment would therefore be appropriate but, as the Court of Appeal noted in Cunningham, the maximum penalty for assault with intent to injure is three years’ imprisonment.11
[22] This gives a broad range for a final sentence. To establish a starting point, it is necessary to examine other similar cases. The three cases Mr Walsh refers to are of some assistance, but comparing the facts is not easy. A particular aggravating feature of Mr Hansen’s offending is the repetitive nature of the four attacks, all of which are, individually, serious. Many of the cases which I will consider below, in addition to the three identified by Mr Walsh, involve single incidents of serious assault. The cases all involve complainants who were women in domestic relationships with the defendants. Sometimes the violence was more serious, though this is a matter of degree, and sometimes other aggravating factors were present, particularly the use of a weapon. However, with the exception of Kuhtz and Bishop, these were generally cases involving a single incident of assault.
8 Tamihana v R [2015] NZCA 169 at [16]; and Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [38].
9 Cunningham v R [2019] NZCA 622 at [18].
10 R v Taueki [2005] 3 NZLR 372 (CA) at .
11 Cunningham v R, above n 9, [18].
[23] In chronological order, the first is Kuhtz. The defendant in that case pressed the complainant, his partner, to a bed and held a “swordfish sword” to her throat. She was able to get away to another room but was followed by the defendant who pushed her to the ground, put his foot on her head and threatened to kill her. On a subsequent occasion, several months later, he caused damage to the same complainant’s property before departing. But he returned later and attacked her by striking her with his fists, dragging her across a room and striking her head against a wall while choking her. She was dragged into another room where he caused further damage and threatened to kill the complainant. On the lead charge of assault with intent to injure, the Judge took a starting point of 12 months’ imprisonment (which was not challenged on appeal).12 The final sentence of 23 months’ imprisonment was reduced on appeal, to 20 months.
[24] The second is Kanuta. The complainant in that case, the defendant’s partner, struck the defendant several times in the head with her fists. He responded by striking her with his fist, causing her to fall to the ground unconscious. While she was in this state, the defendant sat on top of her and began choking her with both hands. She regained consciousness and managed to escape. The defendant went on to kick her in the head and choke her further. The defendant had previously assaulted the same complainant in a similar way. He was charged with several offences, including assault with intent to injure. On this charge, the Judge adopted a starting point of two years’ imprisonment. Brewer J, on appeal, reviewed similar cases for consistency but found this starting point too high and substituted a starting point of 18 months’ imprisonment instead. The final sentence of 20 months’ imprisonment was reduced to 17 months.
[25] The four cases reviewed in Kanuta are likewise of assistance. In Sharma v R, the defendant entered the complainant’s home, pushed her to the ground with some force, placed his hands around her neck and choked her until she lost consciousness.13 The Court of Appeal upheld a starting point of 15 months’ imprisonment. In Teka v Police, the defendant threw the defendant to the ground and strangled her for an extended period (he was only stopped through Police intervention).14 On appeal, this Court reduced the starting point from 18 months’ imprisonment to 15 months. In
12 Kuhtz, above n 5, at [12].
13 Sharma v R [2015] NZCA 468.
14 Teka v Police HC Auckland CRI-2009-404-0253, 7 September 2009.
Wilson v Police, the defendant struck his partner in the face and then strangled her until she was unable to breathe.15 This Court reduced the starting point from 15 months to 12 months’ imprisonment. Finally, in R v Richardson, this Court adopted a starting point of 12 months’ imprisonment where the defendant struck his pregnant partner in the abdomen with his fist, causing her to curl up on the ground in an effort to protect herself.16 The defendant continued to strike her arms and legs. I observe that all four of these cases, and Kanuta, involved single incidents of assault.
[26] The third of the cases referred to by Mr Walsh is Bishop v Police.17 The offending commenced when the defendant overturned a bed at a house he shared with the complainant, his partner, causing her (and her daughter) to fall to the floor. He departed but later returned. On this occasion, the defendant struck the complainant multiple times with his fist in the face, chest, stomach and back. He grabbed her by the ear. He departed again.
[27] The following day, the complainant came to the house to collect her belongings. The defendant took the complainant by the throat and applied sufficient force to make it difficult for her to breathe. He struck her several times with his fists. As she gathered up her belongings, the defendant used a broom handle to hit the complainant and, as she withdrew, he pursued her and continued to strike her with his fists. As she moved towards the door, the defendant pulled her back into the house, threw her to the ground, punched her repeatedly and pulled her hair.
[28] The Judge adopted a starting point of 24 months’ imprisonment but added three months to reflect the extended period of the offending. The offending occurred over two days. On appeal, Moore J characterised the starting point as 27 months’ imprisonment by including the three-month uplift added by the Judge. He was satisfied that this adjusted starting point, which he acknowledged might be unorthodox, was well within range given the “offending was serious, sustained, occurred in two discrete episodes and involved punches targeted towards the complainant’s face and body”.18
15 Wilson v Police [2012] NZHC 2503.
16 R v Richardson [2012] NZHC 1465.
17 Bishop v Police [2018] NZHC 657.
18 At [39].
[29] Moore J found an appropriate comparison in Goodman v R (which was also considered by the majority in Cunningham).19 The complainant had returned to the home she shared with the defendant to collect her possessions. The defendant grabbed her around the throat and threw her across the room. She was repeatedly pushed over as she tried to get up. She was then head butted and pushed outside where she was pushed backwards and kicked. A starting point of 28 months’ imprisonment was found by the Court of Appeal to be within the available range. It was a serious assault involving attacks to the head and neck. Though the complainant did not lose consciousness, it could be inferred from the evidence that the assault was frightening for her.
[30] Finally, in Cunningham, the defendant strangled his partner using a dog chain. The complainant could not breathe. The Judge adopted a starting point of two years’ imprisonment, which the majority in the Court of Appeal upheld, after comparing the facts to Goodman.20
[31] There are a wide range of factual situations in these cases. Looked at overall, Mr Hansen’s offending warrants a starting point equivalent to the Judge’s initial starting point in Bishop and a higher starting point than in Kanuta. The violence may have been less, but only to a matter of degree, and the effect of it was arguably greater because Mr Hansen focused primarily or only on the complainant’s throat and obstructed her breathing to the extent that she lost consciousness on one occasion and was unable to breathe on another.
[32] In Kanuta, the violence was more serious but there was a single incident of assault. Likewise, in Cunningham, although the use of a weapon to choke the complainant (the dog chain) was an aggravating factor not present in Mr Hansen’s offending, there was a single incident of assault. Mr Hansen assaulted the complainant four times and each, on its own, was serious, focused as it was on the complainant’s throat. On the last occasion Mr Hansen was unlawfully on the premises having been served with a trespass notice. Taking all these factors into account, the starting point of 24 months’ imprisonment adopted by the Judge was within the available range.
19 Goodman v R [2016] NZCA 64; Cunningham v R, above n 9, at [19]-[20].
20 Cunningham v R, above n 9, at [20].
[33] In the previous paragraph I referred to four incidents of assault. There were three in the representative charge and one in the other assault with intent to injure charge. I have examined them together for the purposes of totality. As noted in [12] above, it is not clear from the Judge’s sentencing notes how the second charge was addressed. No uplift was given for this charge, though the Judge carefully listed uplifts for the other charges to which Mr Hansen pleaded guilty. It appears that the Judge must have included the second charge in his assessment of starting point. However, if I am wrong on this, I am satisfied that the final sentence arrived at is justified on a totality basis. It also accords with comparable offending, as set out above and the guidance provided by Nuku as set out at [20] above.
Result
[34]The appeal is dismissed.
Gordon J
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