Hemana v The the Queen

[2022] NZHC 999

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-000064 CRI-2022-404-000066

CRI-2022-404-000123 [2022] NZHC 999

BETWEEN

DYLAN HEMANA

Appellant

AND

THE QUEEN

Respondent

Hearing:	9 May 2022
Appearances:	A Millington for Appellant B Archibald for Respondent
Judgment:	11 May 2022

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 11 May 2022 at 3.00 pm

Registrar/Deputy Registrar Date:…………………………

Solicitors/counsel:

Public Defence Service, Albany, Auckland Meredith Connell, Auckland

HEMANA v R [2022] NZHC 999 [11 May 2022]

Introduction

[1]                   The appellant, Dylan Hemana, appeals the sentence of one year and four months’ imprisonment imposed on him by Judge E M Thomas in the District Court at Auckland on 25 February 2022.1 The sentence was imposed after Mr Hemana had entered guilty pleas in respect of the following charges:

(a)contravening a protection order (a representative charge);

(b)assault on a person in a family relationship;

(c)unlawfully possessing a restricted weapon; and

(d)contravening a protection order.

[2]                   Mr Hemana argued that the sentence is manifestly excessive. He initially sought to appeal on the basis that the starting point adopted by the Judge was too high, but this ground of appeal was abandoned by Ms Millington, acting on his behalf, at the appeal hearing. Other grounds of appeal were however maintained – namely, that Mr Hemana was given insufficient credit for personal mitigating factors and that the Judge erred in the inferences he drew from the pre-sentence report.

[3]                   The Crown opposed the appeal. It argued that the Judge made no error, that he properly exercised his discretion in deciding that imprisonment was the appropriate end sentence and that the sentence imposed was well within the available range given the offending in issue.

The offending

[4]                   The victim of the majority of the offending was Mr Hemana’s former partner. She has a protection order in her favour. It has been in place since 2014. The order also protects the victim and Mr Hemana’s two children. Mr Hemana has three prior convictions for breaching the protection order. He also has previous convictions for inflicting violence on the victim.

1      R v Hemana [2022] NZDC 4392.

9 June 2021 offending

[5]                   On 9 June 2021, at around 7.30 am, Mr Hemana sent a text to the victim, asking her to visit his sister. She told him to leave her alone. He tried to ring her – she hung up on him. She followed this up with a text message saying “Dylan please leave me alone the constant calling and texting. You said you were staying away”. Notwithstanding this rebuff, Mr Hemana then sent approximately 64 text messages and made some 50 phone calls to the victim over a period of some five hours. Many of the text messages were abusive and derogatory.

[6]                   At about 5.30 pm on the same day, the victim was at a birthing centre in a town north of Auckland. Mr Hemana parked his truck next to her car and waited for her. When she and the child came out of the birthing centre, the child ran over to see    Mr Hemana. The victim asked Mr Hemana to leave her alone and let her put the child in the car seat in her car. Mr Hemana walked around the victim’s car, placed the child in the rear seat and then got into the front passenger’s seat. The victim was also in the car at this point. Mr Hemana started speaking to the victim with a raised voice. She was becoming fearful and she attempted to get out of the car. Mr Hemana grabbed her by her arms and pulled her back into the car. He then pulled the seat lever, causing her to jolt backwards. He straddled her with his upper body and, using his forearm, pinned her down in the seat. The victim attempted to fight off Mr Hemana, using her legs to try and get leverage. She tried to sound the car horn and she twisted her body in an attempt to free herself. She was yelling and screaming, fearing what might happen next. Throughout, Mr Hemana was telling her to “shut up” and “be quiet”. Mr Hemana finally released the victim but he then grabbed the child from the rear of the car. He called out to his mother, who was also inside the birthing centre. When she came out, she talked Mr Hemana into giving the child back to the victim.

[7]                   Mr Hemana had taken the victim’s cellphone and he demanded that she delete the text messages he had sent earlier in the day. She complied with his demand in order to get her phone back. However, she had already taken screenshots of the relevant messages. Mr Hemana gave her phone back to her and, once she had settled herself and the child, she drove out onto the road. However, Mr Hemana then tried to block her passage. She went down a side road, but he followed her and then blocked

her exit. Each time she attempted to move or get away, he would further block her. Eventually, Mr Hemana drove off.

[8]                   As a result of the offending, the victim was left shaking and scared. Her neck was sore.

[9]                   When he was located by the police, Mr Hemana refused to make a statement, commenting “I don’t care just go off her statement”.

11 June 2021 offending

[10]               On 11 June 2021, Mr Hemana was arrested. He was taken to a custody unit where his property was seized. Among the items taken were what appeared to be two cellphones. Mr Hemana subsequently appeared in the North Shore District Court. He was remanded into custody. Court custody staff were asked to collect his property. One noticed that one of the cellphones was in fact a working taser. Mr Hemana declined to make a statement about the taser other than to say that he was “holding it for a mate”.

October/November 2021 offending

[11]               On 9 October 2021, the victim sent a text message to Mr Hemana asking him to cease communication with her. The police also called Mr Hemana and advised him to stop all communications with the victim either direct or through others and to comply  with the  protection  order.  Nevertheless,  between 31  October  2021  and  2 November 2021, the victim received three messages via Facebook Messenger from an account named “diamondintherough”.  It had been created by Mr Hemana.   On   2 November 2021, the victim received two further messages via Facebook Messenger from an account named “Jo Jenkins”. The messages had come from Ms Jenkins. She is a mutual friend of both the victim and Mr Hemana. She stated that Mr Hemana had begged her to contact the victim as he wanted to see his children.

[12]In explanation, Mr Hemana confirmed that he wanted to see his children.

District Court sentencing

[13]               After summarising  the purpose of a protection order, the Judge noted that  Mr Hemana would have completed a Stopping Violence programme as part of the protection order regime. He said it was disappointing to see that neither this programme, nor the protection order, nor Mr Hemana being arrested on the charges, had worked. The Judge considered that he could not “have any confidence, at the moment, that [Mr Hemana was] in a place to deal with this properly yet”.2

[14]               The Judge then outlined the charges and the details of the offending. He noted that there were “lots of sinister elements of pressure and control” about the assault offending, not just in terms  of  what  happened  in  the  car,  but  also  in  the  way Mr Hemana followed and trapped the victim.3 The Judge also described the offending over Facebook Messenger as “significant” because “it destroys a person” and “affects the kids”, who grow up thinking this is the way to treat women.4

[15]               The Judge adopted a 12 month starting point for the breach of the protection order charge, noting:

[8] The courts have looked at lots of different  times  over  what  the penalties should be for breaching a protection order. It is common that you would get a prison term of around a year for a breach of a protection order that involved contacting people and abusing them. So to do that 110 times in a day probably would justify a starting point much higher than that. But I do not need to do that, I need to keep it as low as I possibly can, 12 months would be where I would start.

The Judge then considered the assault and possession of a restricted weapon charges, observing that they “would be worthy of significant penalties on their own”.5 However, taking into account totality, the Judge adopted an adjusted starting point of 18 months’ imprisonment, saying that it was as low as he could go for all three charges. The Judge declined to uplift the starting point for the second breach of the protection order (the Facebook messages), noting that “18 months is high enough already”.6

2      R v Hemana, above n 1, at [4].

3 At [6].

4 At [7].

5 At [9].

6 At [10].

[16]               The Judge then turned to Mr Hemana’s personal circumstances. He imposed an uplift of three months for his previous convictions and the fact that some of the offending occurred while Mr Hemana was on bail for the same kind of offending. He gave a 20 per cent discount for the guilty pleas, observing that while the pleas came later, they had  made  a  “big  difference”  to  the  victim.7  He  acknowledged  that Mr Hemana had been prepared to participate in restorative justice. The Judge declined to give a discount for electronically monitored (EM) bail, saying:

[12] Normally you would get a discount for time spent on EM bail but obviously, when you breach EM bail, that affects what I can give you for that. In your case, because the breach of EM bail was so significant, because it resulted in additional charges of breaching a protection order, obviously       I cannot give you any meaningful reduction. You are probably very lucky that you had not been remanded in custody from the beginning.

This resulted, with rounding, in an end sentence of one year, four months’ imprisonment.

[17]The Judge declined to substitute a sentence of home detention, saying:

[14] I have the option to think about home detention, but I spoke at the beginning about the lack of confidence that I have that you are in a place to really take advantage of any sentence like that. We have given you a lot of these opportunities to do that. You needed to take ownership of those opportunities. You did not. Community probation do not have a lot of optimism about that. You remain a high risk, I cannot see any option, I am afraid, other than a term of imprisonment.

The Judge also imposed the standard post release conditions set out in the pre-sentence report, including non-association with the victim.

[18]               The Judge concluded by stating that the “time for extending [Mr Hemana] any leniency and generosity is long gone” and that the Court will always protect the victim first.8 He emphasised that there was “one very simple rule” for Mr Hemana: not to contact the victim (including through others) or go anywhere near her.9

7      R v Hemana, above n 1, at [11].

8 At [16].

9 At [18].

The appeal

[19]The appeal is brought pursuant to s 244 of the Criminal Procedure Act 2011.

[20]               Pursuant to s 250 of that Act, Mr Hemana’s appeal against sentence must be allowed if the Court is satisfied that there is an error in the sentence imposed on conviction and that a different sentence should have been imposed.

[21]               For Mr Hemana to succeed, he must demonstrate that there was a material error that has resulted in a manifestly excessive sentence being imposed.10 The Court does not start afresh and substitute its own opinion for that of the original sentencer.11 Rather, the focus is on the end sentence imposed and whether it was within range; it is not on the correctness or otherwise of the process by which the sentence was reached.12

Correction of record

[22]Counsel were agreed on one issue.

[23]Mr Hemana was initially charged with five charges:

(a)assault in a family relationship – CRN 21044002776;

(b)contravening a protection order – CRN 21044002777;

(c)contravening a protection order – CRN 21044002778;

(d)unlawfully possessing a restricted weapon – CRN 21044002915; and

(e)contravening a protection order – CRN 21044004858.

Charges (b) and (c) related to the 9 June 2021 offending and charge (e) related to the 31 October to 2 November 2021 offending.

10     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [32]–[35].

11 At [30].

12 At [36].

[24]               The Crown agreed to include one representative charge of contravening a protection order to incorporate both of the charges originally laid by the police in relation to the 9 June 2021 offending. This representative charge encompassed the offending alleged in Crown charge notices  21044002777  and  21044002778  and Mr Hemana pleaded to a single representative charge of contravening the protection order. He also entered guilty pleas to the other offending.

[25]               In error, an additional conviction was entered in relation to the 9 June 2021 offending. The committal warrant wrongly recorded convictions in respect of both offences set out in CRN 21044002777 and CRN 21044002778. This error did not affect the sentence imposed. Both Mr Hemana, the Crown and the Judge proceeded with sentencing on the basis that there was only one representative charge of contravening the protection order on 9 June 2021.

[26]               As a result of the error with the committal warrant, two convictions have been entered on Mr Hemana’s criminal history record in relation to the 9 June 2021 offending.

[27]               Counsel requested that the error should be corrected pursuant to r 1.6 of the Criminal Procedure Rules 2012. That rule relevantly provides as follows:

1.6      Correction of accidental slip or omission

(1)This rule applies if—

(a)any judgment or order, … contain[s] a clerical mistake or an error arising from any accidental slip or omission (whether the mistake, error, slip, or omission was made by an officer of the court or not); or

(b)any judgment or order is so drawn up as not to express what was actually decided and intended.

(2)The court … may correct the judgment or order, …

(a)on the court’s … own initiative; or

(b)on an application made for that purpose.

…

[28]               The committal warrant is an order of the Court. It contains an error which has resulted from an accidental slip or omission. Mr Hemana did not enter a guilty plea to the charge alleged in CRN 21044002778. I direct that the warrant be amended by removing the conviction recorded in respect of CRN 21044002778. Further, I direct that the warrant be amended to record that CRN 21044002777 was a representative charge.

[29]               Mr Hemana’s criminal history is not however a Court order. Rather, it is part of a database maintained by the Ministry of Justice and I do not consider that r 1.6 extends to it. Nevertheless, Mr Hemana’s criminal history is also in error – the conviction recorded in respect of CRN 21044002778 should not be on his criminal history. It should be deleted. The criminal history should also record that the conviction in respect of CRN 2104002777 was a representative charge. The Registrar is to bring these matters to the attention of the relevant Ministry of Justice officers.

Substantive submissions

[30]               Ms Millington argued that the Judge gave insufficient weight to various mitigating features.

(a)She referred to a letter of apology provided to the Court by Mr Hemana and submitted that a discrete discount of five per cent would have been appropriate to reflect his remorse;

(b)She noted that the Judge did not explicitly reduce the starting point sentence to reflect time that Mr Hemana spent on EM bail. She acknowledged that the Judge stated that, because the terms of EM bail were breached, Mr Hemana could not be given “any meaningful reduction”, and she accepted that the Judge rounded the sentence down to 16 months’ imprisonment when, arithmetically, the end sentence should have been 16.8 months’ imprisonment. She acknowledged that the difference may have reflected a minor discount for the fact that  Mr Hemana spent time on EM  bail  but  nevertheless  argued  that  Mr Hemana should have been given a discrete and express discount for the time he spent on EM bail;

(c)She argued that the Judge incorrectly referenced the pre-sentence report. She noted the Judge’s comment that the Probation Service did not express “a lot of optimism” about Mr Hemana’s willingness to rehabilitate. She observed that the pre-sentence report nevertheless recommended a sentence of home detention and recorded that, by and large, Mr Hemana had satisfactorily complied with community based sentences in the past.

She argued that, in the circumstances, the Judge should have commuted the sentence to one of intensive supervision.

[31]Ms Archibald for the Crown:

(a)accepted that the Judge did not allow a discrete discount for the letter of apology, but argued that the Judge did not err in doing so. She submitted that sentencing Judges are not required to take unsubstantiated claims of remorse at face value. She submitted that a robust evaluation of the circumstances demonstrated that there was no genuine remorse by Mr Hemana;

(b)argued that the  Judge  did  not  err  by  declining  any  discount  to  Mr Hemana for the time spent on restrictive EM bail. She acknowledged that Mr Hemana had spent  some  four  months  on  EM bail, but noted that he breached his bail conditions by contacting the victim via Facebook Messenger in October and November 2021. She argued that the Judge was entitled to exercise his discretion and decline to allow any discount in the circumstances; and

(c)submitted that there was no error in the Judge’s approach to the pre-sentence report. She observed that the pre-sentence report contained information about Mr Hemana’s risk of reoffending and also went on to assert that Mr Hemana had not previously breached community based sentences imposed on him. She noted that the report

was in error, and argued that the Judge did not err in his reference to the pre-sentence report.

She concluded by arguing that a sentence of intensive supervision would be manifestly inadequate and that the purposes of sentencing could not be achieved by anything other than a sentence of imprisonment.

Analysis

[32]               The Judge adopted a global starting point of 18 months’ imprisonment for  Mr Hemana’s offending and uplifted that starting point by three months, to take into account the fact that some of the offending was committed while Mr Hemana was on bail and because of his previous convictions. The Judge’s starting point and the uplift were not challenged on appeal. Rather, it was argued that the Judge failed to give appropriate discounts to Mr Hemana.

[33]               First, it was argued that the Judge should have given a discrete discount of five per cent to Mr Hemana to acknowledge the letter of apology he sent to the Court.

[34]               Section 9(2)(f) of the Sentencing Act 2002 requires the sentencing Court to take into account as a mitigating factor any remorse evidenced by an offender. It is a personal mitigating factor that can justify a separate discount, over and above the discount allowed for guilty pleas. However, sentencing Judges are not required to take unsubstantiated claims of remorse at face value. In Hessell v R,13 the Supreme Court noted as follows:

Remorse is not necessarily shown simply by pleading guilty. Sentencing judges are very much aware that remorse may well be no more than self-pity of an accused for his or her predicament and will properly be sceptical about unsubstantiated claims that an offender is genuinely remorseful. But a proper and robust evaluation of all the circumstances may demonstrate a defendant’s remorse. Where remorse is shown by the defendant in such a way, sentencing credit should properly be given separately from that for the plea.

Further, the Court of Appeal has noted that little weight can be placed on even genuine expressions of apology where there is recidivist offending.14

13     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].

14     R v Ngamo [2009] NZCA 512 at [9].

[35]               In my judgment, the Judge did not err in declining a discrete discount to     Mr Hemana for his letter of remorse. A proper and robust evaluation of the circumstances suggests that Mr Hemana’s remorse was not genuine. He was appearing for sentence for his fourth and fifth breaches of the protection order. He has had ample opportunity to turn his behaviour around and to stop contacting the victim. He had failed to do so and is now a recidivist offender.

[36]               Nor do I consider that the Judge erred when he declined to explicitly allow Mr Hemana a discrete discount for the four months he spent on EM bail.

[37]               Section 9(2)(h) of the Sentencing Act provides that in sentencing an offender, the Court must take into account that the offender has spent time on bail with an   EM condition. When taking into account that an offender spent time on EM bail, the Court must consider the period of time that the offender spent on EM bail, the relative restrictiveness of the EM conditions, the offender’s compliance with the bail conditions and any other relevant matter.15

[38]               The Judge acknowledged that Mr Hemana would ordinarily have been entitled to a discount for time spent on EM bail, but considered that no discount should be allowed to him because he had breached the terms of his EM bail by again breaching the protection order.

[39]               There was clearly a breach of the EM bail conditions. Mr Hemana contacted the victim in October/November 2021, whilst on EM bail. This was a separate offence and Mr Hemana pleaded guilty to it.

[40]               The Courts not infrequently have declined to grant discounts to offenders who have spent time on EM bail, where the offenders have breached the bail bond and further offended whilst on EM bail.16 In the circumstances, I am not persuaded that the Judge erred in the exercise of his discretion in not allowing Mr Hemana a discount for the time spent on EM bail.

15     Sentencing Act 2002, s 9(3A).

16     Paora v R [2021] NZCA 559 at [60]; Gage v R [2014] NZCA 140 at [26]; R v Bidois [2009] NZCA 426 at [15]; and R v Bishop [2009] NZCA 265 at [13].

[41]               Mr Hemana submitted that the Judge erred in his reference to the pre-sentence report and that that error impacted on the Judge’s approach to the sentence imposed.

[42]               The pre-sentence report contained information about Mr Hemana’s risk of reoffending. It stated as follows:

He is assessed as being at a high risk of reoffending on the basis of the flagrant manner he has treated the requirements of the protection order which has been in place since 2014. His risk of harm to the victim is assessed as high for the same reason and will only be mitigated by his meaningful engagement in an appropriate non violence intervention.

The pre-sentence report writer also commented that Mr Hemana has no recorded breaches of community based sentences and on that basis, that his compliance was likely to be satisfactory should he receive a community based sentence.

[43]               The report writer was in error. On 20 January 2016, Mr Hemana was convicted (and then discharged) for a breach of the conditions of an intensive supervision order. This was a representative charge. Nor did the report writer refer to Mr Hemana’s breach of the EM bail conditions in October/November 2021.

[44]The Judge commented as follows:

[14] I have the option to think about home detention, but I spoke at the beginning about the lack of confidence that I have that you are in a place to really take advantage of any sentence like that. We have given you a lot of these opportunities to do that. You needed to take ownership of those opportunities. You did not. Community probation do not have a lot of optimism about that. You remain a high risk, I cannot see any option, I am afraid, other than a term of imprisonment.

[45]               In my judgment, the Judge did not err in his assessment of the pre-sentence report. Mr Hemana was assessed as being at a high risk of reoffending and as posing a high risk of further harm to the victim. The pre-sentence report writer’s comments on Mr Hemana’s record of complying with community based sentences were in error and did not take into account other material which was before the Judge, which plainly suggested that Mr Hemana’s compliance with a community based sentence might not be satisfactory. The Judge was entitled to form his own view and, in my view, the view that he ultimately took cannot be criticised.

[46]               The Judge concluded that the short-term sentence imposed should not be commuted to a community based sentence and that a sentence of imprisonment was the least restrictive sentence available in the circumstances. Mr Hemana challenged this conclusion. I do not consider that the Judge erred. I agree with his assessment that Mr Hemana must take ownership of his obsession with the victim and leave her alone. As the Judge noted, there are other avenues through which Mr Hemana can contact his and the victim’s children. Mr Hemana cannot use his understandable desire to see his children as an excuse for his continued harassment of the victim. Given the recidivist nature of Mr Hemana’s offending, a short-term sentence of imprisonment was the only realistic sentence available to the Court.

[47]The appeal is dismissed.

Wylie J