Haywood v R
[2015] NZCA 551
•17 November 2015 at 4.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA296/2015 [2015] NZCA 551 |
| BETWEEN | PATRICK JOHN HAYWOOD |
| AND | THE QUEEN |
| Hearing: | 9 November 2015 |
Court: | Kós, Fogarty and Mallon JJ |
Counsel: | S Jefferson for Appellant |
Judgment: | 17 November 2015 at 4.00 pm |
JUDGMENT OF THE COURT
AThe appeal against sentence is allowed.
BThe concurrent sentences of six years six months’ imprisonment on the convictions for aggravated burglary and assault with intent to rob are quashed and concurrent sentences of five years’ imprisonment are substituted (to be cumulative on the seven year sentence already being served).
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REASONS OF THE COURT
(Given by Fogarty J)
Introduction
The appellant has been sentenced to seven years’ imprisonment for supply of 11 ounces of methamphetamine.[1] There is no appeal against that sentence. While on bail on that charge he committed aggravated burglary and assault with intent to rob. Following a jury trial, he was then sentenced to two concurrent sentences of six and a half years’ imprisonment for those offences.[2] These sentences were made cumulative upon the earlier seven year sentence, so creating an overall sentence of 13 and a half years’ imprisonment.
The issue
[1]R v Haywood DC Napier CRI-2012-041-2409, 27 July 2014.
[2]R v Haywood [2015] NZDC 8574.
In cases such as this, the legislative guidance is contained in s 85(2) of the Sentencing Act 2002 which provides:
85 Court to consider totality of offending
…
(2)If cumulative sentences of imprisonment are imposed, whether individually or in combination with concurrent sentences, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.
The sentencing Judge appreciated from the outset that the problem with the sentencing was going to be the need to take in the overall totality:[3]
[10] Patrick Haywood ultimately received a sentence of seven years’ imprisonment and Haydon Haywood two years eleven months and that has complicated the sentencing and the earlier sentencing to Turei Ataria to a very considerable degree. I am very clear as I expressed in my reasons for sentencing Turei Ataria that as to what the appropriate starting and end points are for this particular expedition. However, things are muddy to a considerable degree by the need to take in overall totality as far as it affects the two Haywoods and to put Ms Peterson’s involvement into a context that is appropriate, bearing in mind her relative lack of previous convictions.
[3]R v Haywood, above n 2.
The issue in this appeal is whether the second cumulative sentence of six and a half years adequately reflects the gravity of the overall offending. The appellant argues that the total sentence of 13 and a half years is manifestly excessive. Potentially he may serve ten years of that sentence before parole. He is 60 years of age. It is a “crushing sentence”.[4]
[4]R v Johansen (1997) 15 CRNZ 111 (CA) at 121.
In the District Court, Judge Rea identified a starting point of eight and a half years, independent of the totality principle.[5] He then took account of the totality principle and reduced that by two years to reach the end sentence of six and a half years. This was for each of the two charges. They were to be concurrent against those charges but cumulative on the appellant’s existing sentence.
[5]R v Haywood, above n 2, at [15].
There were no particular reasons given in deciding on the appropriate discount for totality. Rather, a judgment was made. The same sentence was applied to both the appellant and his son.
As already noted, the principal point on appeal is that the combined sentence imposed on the appellant was a crushing one, particularly given his age. Implicitly, the appeal was contending that there should have been different sentences on the father and the son, and that the father was entitled to further consideration.
The violent offending
The appellant and his son Haydon Hayward had become aware that the victim was staying in a motel and was in possession of drugs. They decided to get those drugs. They enlisted the help of two other persons — the appellant’s then partner Ms Peterson and an associate Mr Ataria. The four of them went by car to the victim’s motel, the appellant driving. He remained in the car. The others got into the motel, armed with a taser and loaded pistol. The victim was overpowered and was subjected to a severe assault. While the victim was being assaulted, the appellant’s son and his partner returned to the car and the appellant drove them away.
It was common ground between counsel that this offending is drugs-based. The appellant is a regular user, if not addicted to methamphetamine. It is a measure of his use of methamphetamine that he participated in this violent offending while on bail for the methamphetamine offending.
Method of analysis
It is necessary to keep in mind the imperative of s 85(2). That imperative does not apply simply as an adjustment to the second cumulative sentence down but should reflect an overall assessment of a total period of imprisonment for the overall offending. As this Court observed in Opetaia v R:[6]
[The Judge] did not stand back and consider whether an effective end sentence of 15 years’ imprisonment was proportionate or disproportionate to the gravity of Ms Opetaia’s overall offending. That step was necessary given that the Judge was imposing sentences that were to be cumulative on those already imposed by Courtney J.
[6]Opetaia v R [2013] NZCA 434 at [32].
Therefore, we do not think the end sentence should be approached sequentially as an adjustment of the appropriate end sentence of the burglary and assault in order to fit the totality principle. Rather, the analysis should be guided from the outset with the appreciation that the total period of imprisonment should be in proportion to the gravity of the overall offending. That is so even though technically the result is achieved by adjusting the second sentence, because the first sentence is already in place. So we think the question is not whether a two year adjustment from the starting point of eight and a half years is appropriate to satisfy s 85(2). Rather, the question is whether 13 and a half years would be wholly out of proportion to the gravity of the whole of the offending, comprising one charge of supplying 11 ounces of methamphetamine, a second charge of aggravated burglary and a third of assault with intent to rob. In doing so the sentencing Judge would bear in mind that two separate incidents were involved, that the second and third arose while on bail for the first, and that all, to a degree, arose from the appellant’s own dependence on methamphetamine. In that sense, although the offences were separate and distinct, they were also a connected sequence of events.
The sentencing Judge did not frame the issue in that way. The Judge’s totality reasoning was:[7]
[7]R v Haywood, above n 2.
[10] Patrick Haywood ultimately received a sentence of seven years’ imprisonment and Hayden Haywood two years eleven months and that has complicated this sentencing and the earlier sentencing of Turei Ataria to a very considerable degree. I am very clear as I expressed in my reasons for sentencing Turei Ataria as to what the appropriate starting point and end points are for this particular expedition. However things are muddied to a considerable degree by the need to take in overall totality as far as it affects the two Haywoods and also to put Ms Peterson's involvement into a context that is appropriate, bearing in mind her relative lack of previous convictions.
…
[13] The leading case in determining what the ultimate sentence is, is the Court of Appeal decision in R v Mako [2000] 2 NZLR 170 (CA). While that deals with aggravated robbery, by the decision in R v Watson CA36/01, 24 May 2001, it is applicable to aggravated burglary as well. The Court of Appeal said in R v Mako that forced entry into premises at night by a number of offenders seeking drugs, whether there is violence against victims or weapons are brandished, even if no serious injuries are inflicted, would require a starting point of seven or more years. Where a private home is entered, the start point would increase under the then home invasion provisions to around 10 years.
…
[15] In the sentencing notes of Mr Ataria, which should be read together with these sentencing notes, I considered that an overall starting point of eight and a half years’ imprisonment was appropriate. Mr Ataria was a prolific offender as are the two Mr Haywoods. There was originally a Crown submission that minimal non-parole period should be imposed on those three. Because the two Mr Haywoods are currently serving long sentences, I determined that minimum non-parole periods were too difficult to operate and would in the end be too onerous as far as each of the individual prisoners was concerned.
[16] I consider that this was a joint operation. There is no reason at all why a starting point the same as Ataria should not be visited on all of the people involved here but there are some differences that have to be recognised.
…
[18] I consider that simply imposing eight and a half years’ imprisonment to run cumulatively on each of the Haywoods would mean that the totality would be out of sync with the offending that they have been sentenced for, both this and the previous drug offending.
…
[20] In the end I have determined that the appropriate sentence for the Haywoods is six and a half years’ imprisonment in relation to each of the two charges they have been found guilty of by the jury. While they are concurrent across those two charges, the six and a half years will be cumulative on their existing sentences. That will be added to their existing sentences.
It can be seen that the Judge did not consider the appropriate overall sentence for the two sets of offending for the father separately from the appropriate overall sentence for the son. We consider that it was necessary to do that because the father’s sentence for the later offending was being added to a much higher existing sentence (seven years’ imprisonment compared with the son’s two years eleven months) which potentially could lead to an overall “crushing” sentence. That the father, at 60, was in his later years was also a consideration. We therefore consider there should have been separate s 85(2) analyses.
It is not possible to adjust the sentence of seven years’ imprisonment for the supply of methamphetamine. There was no suggestion that the sentence for the aggravated burglary and assault should not be cumulative. The question is, what is the appropriate sentence for both sets of offending? The appellant has a high level of culpability. He has an extensive criminal record. On top of his background of offending, the burglary and assault was while he was on bail for the methamphetamine offending. He was also the senior member of the family involved in this second offending. His counsel submitted that an overall sentence of ten years for the two sets of offending would be appropriate (which would mean a cumulative sentence of three years’ imprisonment for the aggravated burglary/assault with intent to rob offending). We consider this is not adequate to reflect the totality of what was serious offending.
On the other hand we consider that six and a half years’ imprisonment imposed on top of the existing seven years’ imprisonment did not adequately take into account that the connected nature of the two sets of offending. We consider that the overall sentence of 13 years and six months’ imprisonment is manifestly excessive and requires adjustment.
We think an overall sentence of 12 years meets the standard in s 85(2). To achieve that, the end sentence on the burglary and assault offending is five years’ imprisonment on each of the two charges, cumulative on the seven year sentence for the methamphetamine offending. We acknowledge that this means that the father’s sentence on the aggravated burglary and assault offending is less than the son’s sentence for that offending. In that sense the father may be fortunate, but we regard
the difference as an appropriate one in light of the need to determine an overall appropriate sentence. The appeal is allowed accordingly.
Solicitors:
Crown Law Office, Wellington for Respondent
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