Haynes v Police - [2022] NZHC 950

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-82 [2022] NZHC 950

BETWEEN
JAYDEN HAYNES

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 3 May 2022

Appearances:

SP Dickson for the Appellant

FJ McKechnie and WN Fotherby for the Respondent

Judgment:

6 May 2022

JUDGMENT OF GORDON J

This judgment is delivered by me on 6 May 2022 at 11:30 am.

.....................................................
Registrar / Deputy Registrar

Counsel: Sarah Dickson, Henderson, Auckland Solicitors: Meredith Connell, Crown Solicitor, Auckland

HAYNES v NEW ZEALAND POLICE [2022] NZHC 950 [6 May 2022]

Introduction

[1] The appellant, Jayden Haynes appeals against a sentence of 13 months’ imprisonment on the following charges in respect of which he pleaded guilty in the District Court at Waitakere:

(a)Threatening to kill;1

(b)Breach of release conditions (x 2);2 and

(c)Driving while suspended (third or subsequent).3

[2] Mr Haynes appeals on the ground that the sentence is manifestly excessive. Ms Dickson, for Mr Haynes, submits that the Judge erred in adopting a global starting point of 14 months’ imprisonment, and that eight months would have been more appropriate.

[3] Alternatively, Ms Dickson submits that the Judge could have adopted a starting point of seven months’ imprisonment on the lead charge of threatening to kill, with an uplift of one month for the driving while suspended (third or subsequent) charge. She submits that the breach of release conditions charges would not have attracted a further uplift in this context.

[4] Ms Dickson submits further that the uplift of two and a half months for Mr Haynes’ history of offending was too high, because Mr Haynes’ previous violence towards the complainant was also recognised as an aggravating factor on the charge of threatening to kill.

[5] Ms McKechnie, for the respondent, submits that Mr Haynes cannot demonstrate the sentence imposed is manifestly excessive. His sentence is consistent with comparable authorities and the Court should dismiss his appeal.

1      Crimes Act 1961, s 306(1)(a): maximum penalty seven years’ imprisonment.
2      Sentencing Act 2002, s 96(1): maximum penalty one year’s imprisonment, or $2,000 fine.
3      Land Transport Act 1998, s 32(1)(c) and (4): maximum penalty two years’ imprisonment, or
$6,000 fine.

Factual background

[6] Mr Haynes and the victim were in a relationship with a history of family violence. The current charges arose while Mr Haynes was subject to release conditions after serving a sentence of imprisonment for a serious assault on the victim in 2020.

Threat to kill

[7] On 28 November 2021, three months after Mr Haynes had been released from prison, the victim ended her relationship with him via a text message. Mr Haynes responded several hours later with the following message: “If you don’t return the ring, you will end up in a drain”.

[8]The next day, Mr Haynes sent two further messages to the victim:

(a)“Right now I could watch you die and just stare in your eyes and smile as you pass”.

(b)“I would breathe a sigh of relief as…

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 Haynes v Police

Details

AGLC: Haynes v Police [2022] NZHC 950
Case: [2022] NZHC 950
Decision Date: 6 May 2022

CaseChat Overview and Summary

Jayden Haynes appeals against his sentence of 13 months’ imprisonment for threatening to kill, two charges of breach of release conditions, and driving while suspended (third or subsequent). He argues that the sentence is manifestly excessive. Sarah Dickson, for Mr Haynes, submits that the starting point should have been eight months’ imprisonment. Alternatively, the starting point should have been seven months’ imprisonment with an uplift of one month for the driving while suspended charge. FJ McKechnie, for the respondent, submits that the sentence imposed was appropriate. The starting point was not manifestly excessive and was within the available range. Gordon J dismissed the appeal. The Judge adopted a global starting point of 14 months’ imprisonment, a discount of 25 per cent for an early guilty plea and an uplift of two-and-a-half months for prior convictions. The starting point incorporated two breach of release conditions and one driving while disqualified (third or subsequent) charge as well as the charge of threatening to kill. Gordon J found that the starting point was not manifestly excessive and was within the available range. The absence of an immediate ability to carry out the threats reduced the level of harm caused in this case. However, the victim knew that the person making the threats was capable of carrying them out because of a history of actual violence. The sentence imposed by Judge Jelaš was appropriate and within the available range.

Orders