Hart-Dehar v The Queen
[2021] NZHC 2684
•7 October 2021
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-404-183
[2021] NZHC 2684
BETWEEN DYLAN HART-DEHAR
Appellant
AND
THE QUEEN
Respondent
Hearing: 27 September 2021 Appearances:
V Letele for the Appellant
A Al-Janabi for the Respondent
Judgment:
7 October 2021
JUDGMENT OF GAULT J
This judgment was delivered by me on 7 October 2021 at 4:00 pm.
Registrar/Deputy Registrar
……………………………………
Solicitors / Counsel:
Ms V Letele, Barrister, Auckland
Ms A Al-Janabi, Kayes Fletcher Walker, Office of the Crown Solicitor, Manukau City
HART-DEHAR v R [2021] NZHC 2684 [7 October 2021]
[1] Mr Hart-Dehar appeals against sentence and the decision of Judge A J Johns in the Manukau District Court on 9 April 20211 declining permanent name suppression following guilty pleas in respect of the following charges:
(a)one charge of sexual violation by rape;2
(b)one charge of sexual violation by unlawful sexual connection;3
(c)one charge of attempting to pervert the course of justice.4
[2] At the time of sentencing, Mr Hart-Dehar was already serving a sentence of six years and three months’ imprisonment for arson and firearms offences.5 Having regard to totality, Judge Johns imposed the following sentences:
(a)on the sexual violence charges, a cumulative sentence of two years and three months’ imprisonment; and
(b)on the attempting to pervert the course of justice charge, a further cumulative sentence of 6 months’ imprisonment.
The offending
Sexual offending
[3] On 14 April 2018, Mr Hart-Dehar was hosting a party at his Pukekohe address. At the time, he was 21 years old. Mr Hart-Dehar, Mr Vaughan, aged 18, and the victim were friends. At about 6:00 pm, the victim and another associate were picked up by Mr Hart-Dehar in his vehicle. Others were also in the vehicle, including Mr Hart- Dehar’s partner at the time, Ms F. Mr Hart-Dehar stopped to purchase alcohol before arriving back at his address.
1 R v Hart-Dehar [2021] NZDC 6470.
2 Crimes Act 1961, s 128(1)(a) and 128B. Maximum penalty 20 years’ imprisonment.
3 Crimes Act 1961, s 128(1)(b) and 128B. Maximum penalty 20 years’ imprisonment.
4 Crimes Act 1961, s 117(e) (representative charge). Maximum penalty 7 years’ imprisonment.
5 R v Hart-Dehar [2019] NZDC 17470.
[4] During the evening, he made several attempts to get the victim, aged 15, to engage in sexual acts with him, however, she refused his advances. At about 10:30 pm, the owner of the address shut down the party and all the guests were asked to leave. Mr Hart-Dehar said he knew of another party nearby and suggested that the group reconvene there. When they arrived at the party, they were denied entry. There was an argument between Mr Hart-Dehar and Ms F; she became upset with him and walked away. About half an hour later, the victim contacted Mr Hart-Dehar to arrange getting back home as she and an associate had a midnight curfew. The group all met back at the second party, except for Ms F who had not returned.
[5] The victim and another person got into the back seats of Mr Hart-Dehar’s car. Mr Vaughan was in the front passenger seat, and Mr Hart-Dehar was driving. Mr Hart-Dehar drove around Pukekohe looking for Ms F. He waved down a passing police car to advise that she was missing and request they look out for her.
[6] Mr Hart-Dehar then drove to a remote location and parked. The victim was sitting in the backseat. At Mr Hart-Dehar’s request, Mr Vaughan pulled down the victim’s pants, opened her legs and forcibly inserted his fingers into her vagina for a short time. He stopped when the victim told him to stop. At some point Mr Hart- Dehar went to the boot of the car, opened the hatch and pushed the backseats forward so they lay flat. He then got on top of the victim and lay between her legs. She was frightened, she screamed and kicked, was crying and told him to stop and get off her. Mr Hart-Dehar overpowered her and pinned her hands down. He then used two fingers to digitally penetrate her vagina causing it to bleed. He then inserted his penis into her vagina. She fought against him and screamed for him to stop, but he continued to rape her. He eventually stopped, got off the victim and got dressed.
[7] While Mr Hart-Dehar was violating the victim, the other person sat in the back on the fold-down car seat and did not attempt to stop Mr Hart-Dehar because he said he was scared and in shock. After Mr Hart-Dehar had finished, Mr Vaughan immediately apologised to the victim and begged for her forgiveness.
[8] Mr Hart-Dehar drove the group back to his address. He apologised repeatedly to the victim who was distressed and refused to acknowledge him. Mr Hart-Dehar then took the victim and an associate home, accompanied by others.
[9] The victim reported the matter to police in May 2018. As a result of being violated by Mr Hart-Dehar, she had a bruised and bleeding vagina and she also contracted a urinary tract infection. She also received bruising to her upper arms and thighs.
Perverting the course of justice
[10] On 27 September 2018 Mr Hart-Dehar was in custody at Mt Eden Corrections Facility in relation to the sexual violation charges. While in custody he had access to a telephone, and he made a large number of phone calls to approved and non-approved associates and family.
[11] On 14 October 2018 Mr Hart-Dehar contacted Ms F and asked her to contact the victim and get her to drop the charges. On 25 November 2018 Mr Hart-Dehar called Ms S and asked her to contact the victim and tell her that her statement was “all shit”.
[12] On 8 December 2018, Mr Hart-Dehar called Ms S again. He repeatedly asked her to contact the victim and tell her not to turn up to trial because she had “made a dick of herself” and the police knew she was lying. He went on to say that she should not show up to trial because she would “be made to look like a dick” and that his lawyer would rip her to pieces.
[13] On 16 November 2018 Mr Hart-Dehar called Mr T and asked him to contact Mr Vaughan. Mr Hart-Dehar indicated that Mr Vaughan was a potential witness in the sexual offending, and he told Mr T to tell Mr Vaughan to tell the police that he did not do anything.
[14] On 30 November 2018 Mr Hart-Dehar called Ms F and asked her to contact Mr Vaughan and tell him to say that nothing happened. On 1 December 2018 he then spoke to Ms F again on the phone and asked her to tell Mr Vaughan to speak to police
and again tell them that he had done nothing. On 3 December Mr Hart-Dehar called Ms F again and spoke to her about Mr Vaughan. She said she had spoken to him and he had said, “All right”. When Mr Hart-Dehar asked what she had said, she replied that she had told Mr Vaughan to say nothing happened.
[15] On 9 December 2018 Mr Hart-Dehar called Ms S and asked her to message Mr Vaughan to tell him to say nothing to the police. On 27 December Mr Hart-Dehar called Mr T, spoke to him about Mr Vaughan’s statement, and told Mr T to tell Mr Vaughan that all he needed to say to the police is that he did nothing. Mr T eventually contacted the police and provided a statement.
[16] On 4 January 2019 police obtained from Mt Eden Corrections Facility recordings of the phone calls that Mr Hart-Dehar had made while in custody. During the phone call with Mr T on 27 December 2018, Mr Hart-Dehar also told him to exchange messages with Ms F on Snapchat making out that nothing had happened between him and the victim. Mr Hart-Dehar told Mr T that Ms F would change his name to the victim’s name on her Snapchat application, an indicator that the exchange would then be available as evidence of a statement made by her that nothing had happened. Mr Hart-Dehar said that this plan should work. On 30 December he called Ms F and spoke to her about the Snapchat plan. He said he wanted to discuss something with her relating to changing the name on Snapchat. He said that he needed to do this otherwise he would “be fucked”.
District Court decision
[17] The Judge referred to her earlier sentence indication, and summarised the facts of the sexual offending and the victim impact statement. She then noted that the matter was complicated since this offending pre-dated a number of offences for which Mr Hart-Dehar had received a sentence of six years and three months’ imprisonment and so the starting point would need to be reduced for totality.
[18] The Judge identified the following aggravating features of the sexual offending:
(a)premeditation – Mr Hart-Dehar took the victim to a remote area, having tried to have sex with her earlier in the evening;
(b)the victim was extremely vulnerable – she was 15, had been drinking alcohol and Mr Hart-Dehar was six years older; and
(c)the involvement of another offender.
[19] The Judge placed the offending in R v AM rape band two,6 adopting a starting point of nine years’ imprisonment. The Judge described the offending as “extremely serious” with “serious and lifechanging consequences to the victim”.
[20] Still referring to the sentence indication, the Judge considered a discount of 15 per cent was appropriate for the plea and a further 15 per cent for “youth, and any other factors that are available at sentence”.
[21] The Judge referred to the submissions indicating that both counsel proposed a cumulative sentence. The Judge then referred to the attempting to pervert the course of justice charge, noting that the aggravating features were the scale of the offending, the high degree of premeditation, and the use of threatening language.
[22] The Judge considered the s 27 cultural report, which she said described an “appalling upbringing” at the hands particularly of [withheld]. The Judge said Mr Hart-Dehar described “outrageous episodes of beatings”, including being kicked in the ribs and being dragged down the road by his hair. The Judge also said Mr Hart-Dehar was apparently [withheld] when aged four.
[23] Against that, the Judge referred to a clinical psychologist’s report, in which Mr Hart-Dehar described being raised in a stable home environment, did not indicate exposure to violence, and indicated close attachments with his immediate and extended family members, particularly his mother. The Judge said the report noted Mr Hart-Dehar’s issues with schooling and ADHD, but in summary indicated that
6 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.
Mr Hart-Dehar had a relatively stable upbringing where pro-social behaviour and appropriate boundaries were modelled.
[24] The Judge said “the two reports cannot be reconciled”. She was concerned that Mr Hart-Dehar had had an opportunity to disclose everything about his upbringing to the clinical psychologist but did not. The Judge therefore treated the contents of the s 27 report, which was self-report from Mr Hart-Dehar, with “scepticism”. But the Judge was prepared to give a further discount of three months to reflect Mr Hart- Dehar’s ADHD, his resulting impulsive behaviour and misuse of alcohol and drugs.
[25] This resulted in a sentence of two years and three months’ imprisonment for the sexual offending, cumulative on Mr Hart-Dehar’s existing sentence of six years and three months’ imprisonment. The Judge also imposed six months’ imprisonment, cumulative, for attempting to pervert the course of justice.
[26] In relation to permanent name suppression, the Judge referred to the submissions that publication would result in extreme hardship to Mr Hart-Dehar, his parents and the volunteer fire brigade with which the family are associated. However, the Judge agreed with the Crown submissions that there was no evidence on which she could be satisfied that publication would cause extreme hardship.
Sentence appeal
Grounds of appeal
[27] Mr Hart-Dehar appeals against sentence on the ground that it is manifestly excessive because the Judge failed to properly take into account his cultural and personal background, rehabilitative efforts and remorse. Ms Letele, for Mr Hart- Dehar, takes no issue with the starting point, or the guilty plea and youth discounts.
Approach on sentence appeal
[28] To succeed on an appeal against sentence, the appellant must satisfy the appeal court that there has been an error in the imposition of the sentence and that a different
sentence should be imposed.7 The Court will not ordinarily intervene when the sentence is within the range that can be properly justified by accepted sentencing principles. The Court will only intervene and substitute its own view if the sentence is manifestly excessive or wrong in principle.8 The appeal court’s focus is on the final sentence imposed rather than its component parts or how the ultimate sentence was reached.9
Further evidence
[29] Ms Letele seeks to adduce further evidence on appeal: a psychological report from Dr Kettner dated 27 August 2021 and an affidavit from Mr Hart-Dehar’s mother. Leave is required to adduce further evidence. Ms Al-Janabi, for the respondent, opposes leave on the basis that the documents are not sufficiently fresh, credible or cogent.
[30] Dr Kettner’s report includes reference by Mr Hart-Dehar to abuse in his upbringing as disclosed in the cultural report – in particular, physical abuse by [withheld] and [withheld] when he was a young child. In relation to the latter, Mr Hart-Dehar told Dr Kettner that the first time he had disclosed that to anyone was during the cultural evaluation and he did not feel comfortable opening up to the previous psychological assessor. Dr Kettner reported that [withheld] denied specific instances of serious physical abuse.
[31] Dr Kettner’s report was consistent with earlier reporting of ADHD and of alcohol and drug use. The report also referred to Mr Hart-Dehar’s psychometric testing indicating a history of antisocial behaviour and maybe a conduct disorder, and summarised his positive rehabilitation steps since incarceration, including in the Māori unit since March 2021.
[32] The affidavit from Mr Hart-Dehar’s mother corroborates smacking and punching by [withheld] since Mr Hart-Dehar was a young boy.
7 Criminal Procedure Act 2011, ss 250(2) and (3).
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
9 Ripia v R [2011] NZCA 101 at [15].
[33] The general approach to admitting further evidence on appeal is that it must be fresh, credible and cogent.10 The further evidence about Mr Hart-Dehar’s upbringing is not fresh. It could and should have been produced at sentencing since there was an evident inconsistency between the first psychological report and the cultural report. However, as Ms Al-Janabi acknowledged, evidence that is not fresh may be admitted on appeal in the interests of justice. It may be in the interests of justice to adduce evidence that credible and cogent even if not fresh. As the Court of Appeal said in Mark v R:11
If the evidence is credible but not fresh, the appellate court should assess its strength and its potential impact on the sentence. If the appellate court considers that the sentence could be manifestly excessive if the evidence is excluded, then it should be admitted notwithstanding that it is not fresh.
[34] Further reports on appeal are not encouraged. But, having reviewed the further evidence and its potential impact on the sentence, I consider it is credible and cogent insofar as it helps to explain the inconsistency between the reports available at sentencing in relation to abuse suffered by Mr Hart-Dehar during his upbringing. The combination of his mother’s evidence and his explanation to Dr Kettner for not disclosing [withheld] earlier are helpful in seeking to reconcile the two reports before the Judge at sentencing. I therefore admit the further evidence.
Discount for personal and cultural background
[35] Ms Letele submitted the Judge failed to consider a further discount of up to 30 per cent in respect of Mr Hart-Dehar’s cultural and personal background as detailed in the s 27 report and the psychological report prepared by Dr Kettner.
[36] Ms Letele referred to Solicitor-General v Heta, in which Whata J applied a 30 per cent discount for cultural factors including significant post-colonial trauma and disruption of Māori cultural identity,12 and R v Taulapapa, in which the Court of Appeal accepted that there was a close nexus between the defendant’s understanding
10 Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34].
11 Mark v R [2019] NZCA 121 at [16].
12 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [67].
of whanaungatanga and her offending (kidnapping a baby she believed to belong to a family member).13
[37] Ms Letele highlighted Mr Hart-Dehar’s history of abuse, as outlined in the s 27 report and Dr Kettner’s report. Further, Ms Letele noted that disruption of cultural identity was recognised as an influential factor in Heta, and submitted the same applies here. Mr Hart-Dehar is of European and Māori (Ngāti Kurī and Ngāti Tamaterā) descent. The s 27 report indicates he has largely been estranged from his Māori cultural heritage and identity. As a result, he has been afflicted with whakamā, a Māori concept which affects Māori people and can be interpreted as feelings of shame, guilt, inadequacy, emotional turmoil, and other feelings. Whakamā presents in conduct that attempts to mask these feelings, including dissociation, alcohol/substance abuse, and acting out with disregard for others or consequences.
[38] Ms Letele further submitted that post-colonial trauma applies in this case, as in Heta. Mr Hart-Dehar is estranged from tikanga Māori and has a limited understanding of his cultural identity, which has never developed beyond an introductory level.
[39] Ms Letele submitted there is a close nexus between these cultural factors and the offending; Mr Hart-Dehar’s offending is related to his lifelong experience of whakamā, particularly his inability to relate openly and authentically to the opposite sex and his intimate partners. His [withheld] resulted in ongoing emotional trauma. He has experienced ongoing shame, hurt, inferiority, worthlessness, uncertainty and confusion since childhood. His whakamā continues to be chronic and debilitating, leading to his willingness to rebel against authority figures and society’s norms. He has learned to respond to his whakamā with a façade, by resorting to violence in an attempt to avoid having to confront his feelings. The manifestation of his whakamā in a way that impedes his ability to openly talk with, have concern for, or appropriately relate to members of the opposite sex, reflects the nexus between his background, his whakamā, and his present offending. Ms Letele submitted that, as in Taulapapa, the gravity of Mr Hart-Dehar’s offending is low when considering this close nexus.
13 R v Taulapapa [2018] NZCA 414.
[40] Ms Al-Janabi submitted the Judge did not err in declining to provide a discount for the s 27 report. In particular, the Judge’s scepticism about Mr Hart-Dehar’s claims of an abusive childhood was well-founded and based on the sum of the evidence before her at sentencing. The Judge accurately observed a stark contrast between the narratives provided in the s 27 report and the psychological report. Whereas the s 27 report notes that Mr Hart-Dehar suffered physical abuse by [withheld], growing worse as he got older, the psychological report gives a very different account of a stable, loving household environment. Mr Hart-Dehar’s mother was interviewed for this report, and did not provide any account consistent with the abuse allegations.
[41] Ms Al-Janabi submitted that given the timing of the allegations against Mr Hart-Dehar’s [withheld], and the absence of any corroborating material, the Judge did not err in declining to place weight on the allegations made in the s 27 report.
[42] Ms Al-Janabi further submitted that, even if the narrative is accepted, there is no clear nexus between Mr Hart-Dehar’s history and his sexual violation offending as required by Zhang v R.14 In particular, none of his offending involved an explicitly violent component (beyond the violence inherent in all sexual offending). Likewise, the Judge did not err in declining to allow a discount for more generalised systemic deprivation (recognised in Carr v R).15 While evidence of systemic deprivation “need not be elaborate”,16 it was all but absent in this case. The balance of evidence before the Court suggested Mr Hart-Dehar grew up in a household absent of the standard markers of deprivation, such as poverty, parental unemployment or violence. Ms Al- Janabi noted the Judge did impose a discount for ADHD, in recognition of its impact on Mr Hart-Dehar’s behaviour and offending, which she submits was generous.
[43] As indicated, the Judge gave a discount of three months to reflect Mr Hart- Dehar’s ADHD, his resulting impulsive behaviour and misuse of alcohol and drugs, but no further discount for his upbringing. There was some evidence of Mr Hart- Dehar’s disconnectedness with his Māori heritage, which may have contributed to his antisocial behaviour, but the Judge’s scepticism in relation to the abuse referred to in
14 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [159] and [162].
15 Carr v R [2020] NZCA 357 at [60].
16 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [50] as cited in Carr v R
[2020] NZCA 357 at [58].
the s 27 report was understandable given it was self-reported, uncorroborated and indeed inconsistent with the psychological report. The further evidence on appeal is helpful in seeking to reconcile the reports. Mr Hart-Dehar’s explanation to Dr Kettner for not disclosing at least the instance of [withheld] to the earlier report writer is plausible. So is Mr Hart-Dehar’s mother’s reticence about disclosing physical abuse.
[44] Even so, the Court needs persuasive evidence of trauma or deprivation, as opposed to mere self-reporting. The onus of proof (to the civil standard) lies on the offender. There must also be an identifiable nexus between that trauma or deprivation and the offending. Having regard to the further evidence, I accept that Mr Hart-Dehar suffered some physical abuse in his upbringing. But the instance of [withheld] was self-reported only and there is not even an affidavit from Mr Hart-Dehar. Persuasive evidence of that abuse was lacking. Moreover, there is only a very limited nexus between the physical abuse and Mr Hart-Dehar’s sexual offending. As indicated, Mr Hart-Dehar’s cultural disconnectedness with his Māori heritage may have contributed to his antisocial behaviour. While there is likely some nexus between this and the serious sexual offending, it is not close as in Taulapapa. In this regard, it is necessary to weigh the relevant sentencing purposes and principles. As the Court of Appeal recently observed in Poi v R, deprivation may reduce an offender’s moral culpability for the offending, impacting upon the application of several purposes and principles of sentencing, such as holding the offender accountable, denunciation, general and specific deterrence, community protection and the need for rehabilitation.17 On the other hand, the Court of Appeal has also said in a case of serious sexual offending that sentencing for some offences may be dominated by considerations such as denunciation, victim impact and community protection, reducing and perhaps eliminating any discount for culpability on social grounds.18
[45] Taking into account the further evidence, a reasonably modest discount would have been warranted for Mr Hart-Dehar’s upbringing. I refer to this further below.
17 Poi v R [2020] NZCA 312 at [24]-[27].
18 Arona v R [2018] NZCA 427 at [61], citing Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [57].
Discount for remorse
[46] Ms Letele says Mr Hart-Dehar was unsure whether the 15 per cent discount for youth and other factors included remorse. She asks the Court to consider a further discount of five per cent for remorse, referring to cases.19 She acknowledged that in Pollard v R, the Supreme Court emphasised that discounts for remorse in addition to those for guilty pleas are to be given in exceptional circumstances only.20
[47] Ms Letele noted that Mr Hart-Dehar has written a letter of apology to the victim, expressing his deep remorse and that he is trying his best to move forward in life. He was willing to attend a restorative justice conference, although Ms Letele accepted that such a conference would not be appropriate for this kind of offending. Further, Mr Hart-Dehar did not wish to proceed to trial and agreed to a sentence indication, unlike his co-offender.
[48] The Judge’s reference to a 15 per cent discount for “youth, and any other factors that are available at sentence” was a reference back to her sentence indication. I accept that at sentencing no separate discount for remorse was given. Nor should it have been. As Ms Al-Janabi submitted, the evidence consisted only of an apology letter and an expression of willingness to attend restorative justice; there was no evidence of genuine remorse which went beyond the bare acceptance of responsibility, and Mr Hart-Dehar appeared to downplay his responsibility for the offending to the most recent report-writer. The remorse was not exceptional.
Discount for rehabilitation
[49] Ms Letele seeks a further discount of 10 per cent for the positive steps taken by Mr Hart-Dehar towards rehabilitation. She submitted Mr Hart-Dehar is young and
19 R v LB [2020] NZHC 94: sentencing Judge gave 16 per cent discount for remorse, preparedness to attend a restorative justice meeting, personal circumstances, and attendance at counselling. Further 10 per cent for offer to pay $10,000 reparation, combined discount for remorse of 26 per cent. Reduced on appeal to the High Court to 5 per cent, based on the finding from Pollard v R [2018] NZCA 244, and the fact the offender had described the victim as a “willing participant” in his letter of remorse.
V v R (CA400/2012) [2012] NZCA 465: offender was between 14 and 17 at time of the offending, described as having shown “real remorse” in the intervening 12 years and taken significant, rehabilitative steps. The Court of Appeal approved a discount of 30 per cent.
20 Pollard v R [2018] NZCA 244 at [37], citing Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
has high prospects of rehabilitation. He has completed a number of rehabilitative programmes, including alcohol and drug rehabilitation and anger management. He is housed in a Māori unit, which has opened his eyes to Māori culture. He is learning te reo Māori and teaching it to other inmates in his unit. He is learning kapa haka and tikanga and has had no misconduct since joining the unit. He attends a puwhakamua group21 once a week.
[50] Ms Letele highlighted that assisting in Mr Hart-Dehar’s rehabilitation and reintegration is a relevant purpose of sentencing to take into consideration.22 A lengthy sentence of imprisonment would not assist with this purpose, especially as Mr Hart- Dehar has acknowledged his criminal behaviour, and wants to better himself and strengthen his family relationships.
[51] Ms Letele noted that the s 27 report emphasised the importance of Mr Hart-Dehar developing a sense of tapu and mana to address his whakamā. Engaging in kapa haka is a step Mr Hart-Dehar has taken thus far towards this aim. He has also ceased contact with negative influences and has signed on for segregation to stay away from gang members. Ms Letele submits that all of the above shows Mr Hart-Dehar is less of a risk to the community than he was before, as the influence of gang life was a contributing factor in his offending.
[52] I agree that Mr Hart-Dehar’s rehabilitation and reintegration is a relevant purpose of sentencing, particularly given his youth and the positive steps he has taken since the offending, including to understand and appreciate his Māori heritage. Mr Hart-Dehar’s youth and these positive steps indicate he has good prospects of rehabilitation, which is to be encouraged. He wants to be a loving and good father.
[53] Mr Hart-Dehar’s uncertainty as to the discounts applied is understandable given the complication of the cumulative approach required by his other sentence. But reading the Judge’s sentencing notes in the light of her earlier sentence indication, it is clear that for the sexual offending the Judge, having identified a standalone
21 Puwhakamua is a cultural immersion programme focused on tikanga Māori to strengthen identity while providing positive guidance and support for participants.
22 Sentencing Act 2002, s 7(h).
starting point of nine years’ imprisonment, adopted a cumulative starting point of three years six months’ imprisonment. That starting point was then reduced to an end sentence of two years’ three months imprisonment cumulative on the existing sentence of six years three months’ imprisonment.23 That indicates net discounts of 35 per cent, made up of the guilty plea discount of 15 per cent, which Ms Al-Janabi submitted was generous, and a further 20 per cent for Mr Hart-Dehar’s youth and other personal circumstances. That 20 per cent discount could have been higher given Mr Hart- Dehar’s youth, ADHD and upbringing, but I am not persuaded that the net 35 per cent discount was below the bottom of the range available to the Judge. In any event, as indicated, the focus is on the final sentence imposed rather than how it was reached. I turn to that.
Was the end sentence manifestly excessive?
[54] While Mr Hart-Dehar was unclear about the discounts given, Ms Letele responsibly acknowledged that the end sentence was not manifestly excessive. I consider that was a proper concession. Ms Al-Janabi submitted the final cumulative sentence was, if anything, generous. As she submitted, in imposing a cumulative sentence the proper inquiry was to determine what the overall starting point would have been, had all Mr Hart-Dehar’s active matters been before the Court on the first sentencing occasion.24 The Judge’s two cumulative sentences totalled 33 months’ imprisonment. Given the 35 per cent discount, that indicates a combined starting point of 51 months’ imprisonment. Adding that to Judge Harvey’s combined starting point of nine years six months (114 months) gives a combined starting point of 165 months (thirteen years nine months). That indicates a substantial totality adjustment since the separate starting points would total 249 months (twenty years nine months).25 There was no suggestion that an overall starting point such as this was outside the available range.
23 The Judge also added a cumulative sentence of six months’ imprisonment for attempting to pervert the course of justice.
24 In line with the Court of Appeal’s approach in Haywood v R [2015] NZCA 551.
25 114 months for the arson and firearms offending + 108 months for the sexual offending + 27 months for perverting the course of justice (assuming 18 months after discounts as the Crown submitted given the Judge accepted the Crown’s end sentence).
[55] Overall, I do not consider the Judge erred in imposing the cumulative sentences of two years and three months’ imprisonment for the sexual offending and six months’ imprisonment for the perverting the course of justice charge. The sentence appeal should be dismissed.
Name suppression
Approach on name suppression appeal
[56] A decision on name suppression involves a two-stage analysis.26 First, the Judge must be satisfied that one of the threshold grounds in s 200(2) of the Criminal Procedure Act 2011 is met, that is “publication would be likely” to have one of the threshold consequences. Likely in this context means a real and appreciable possibility.27 Secondly, if satisfied that one of the threshold grounds exists, the Judge must determine whether, in the exercise of discretion, to forbid publication.
[57] The assessment as to whether one of the s 200(2) grounds has been established is a matter of fact requiring judicial assessment. It is well-established that on appeal, the Court must approach the first stage of the analysis as a general appeal.28 The appellate court should come to its own view on the merits. However, the second stage of the analysis is treated as an appeal against the exercise of a discretion.29 On an appeal against discretion, the appellant must establish that the Judge has acted on some wrong principle, taken into account an irrelevant factor, ignored a relevant factor or was plainly wrong.30
Appellant’s submissions
[58] Ms Letele did not pursue permanent name suppression on the basis of extreme hardship to Mr Hart-Dehar. Indeed, she pursued permanent name suppression only in relation to the arson charges on the basis of extreme hardship to Mr Hart-Dehar’s
26 Robertson v New Zealand Police [2015] NZCA 7 at [39]-[41]; and Fagan v Serious Fraud Office
[2013] NZCA 367 at [9].
27 Huang v Serious Fraud Office [2017] NZCA 187 at [10].
28 Meaning it is determined in accordance with the principles in Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
29 NN v New Zealand Police [2015] NZHC 589 at [13]-[14].
30 Wilson v R [2018] NZHC 1778 at [14].
mother, who is a high-ranking firefighter and studying to become a senior station officer.
[59] Ms Letele submitted that publication would affect Mr Hart-Dehar’s mother’s reputation and mental health. She referred to a previous article headlined “Jailed arsonist’s parents are senior firefighters” and submitted that, while open justice is an important principle, media organisations prioritise sensationalism over balanced and fair news. She submitted there is a real risk of publication to highlight the mother’s association with a convicted arsonist. Ms Letele submitted there is a risk that publication would irreparably damage the reputation and credibility of the mother and family members.
[60] In terms of the balancing test, Ms Letele submitted that a departure from open justice is necessitated by the considerable risk of undue extreme hardship to Mr Hart- Dehar’s mother.
Discussion
[61] Even though Mr Hart-Dehar was sentenced in respect of the arson offending on an earlier date, interim name suppression continued until trial on the other charges and then was extended pending appeal.
[62] The relevant threshold ground relied on is that publication would be likely to cause extreme hardship to the person charged, or any person connected with that person.31 Hardship means “severe suffering or privation”.
[63] Based on the material before the Judge, I accept Ms Al-Janabi’s submission that there was no evidence to satisfy the threshold that publication of Mr Hart-Dehar’s name would be likely to cause extreme hardship to his mother. There was no error in the Judge’s decision.
31 Criminal Procedure Act 2011, s 200(2)(a).
[64] The further evidence on appeal includes an affidavit summarising Mr Hart- Dehar’s mother’s work as a senior firefighter and addressing her concerns including by reference to the publication of the article mentioned about another young man convicted of arson whose parents were both volunteer firefighters, which led to media questions to the mother and Fire and Emergency New Zealand (FENZ). Mr Hart- Dehar’s mother says that publication will be detrimental to her mental health and wellbeing and also to her career. In relation to mental health, she notes that as a firefighter, she is exposed to stress, trauma and grief albeit acknowledging she has access to counsellors for mental health and wellbeing. In terms of her career, she says publication would affect her credibility applying to progress to a more senior role as she would be treated differently and disadvantaged.
[65] I accept that her son’s conviction has been heart-breaking and has caused stress and mental fatigue. That is the inevitable result of the offending. Her affidavit does not indicate that publication would cause extreme hardship in terms of her mental health. There is no medical evidence indicating that.
[66] In terms of the effect of publication on her career, evidence was proposed from FENZ but that has not eventuated. I acknowledge the embarrassment but there is no evidence indicating that publication of Mr Hart-Dehar’s offending would be likely to adversely affect her career with FENZ. There is no evidence of any real risk that her employment would be in jeopardy as a result of offending by a family member. A responsible employer would be expected not to attribute blame to her by association or allow her son’s actions to affect her career. The high statutory threshold of extreme hardship is not met.
[67] Accordingly, the appeal against the Judge’s decision declining Mr Hart-Dehar permanent name suppression should also be dismissed.
Result
[68]The appeal against sentence is dismissed.
[69] The appeal against the refusal to grant permanent name suppression is dismissed.
Gault J
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