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Hessels v Police

Hessels v Police

Case [2020] NZHC 3019 9 December 2020

Breach of Contract

Unconscionable Conduct

Aggravated & Exemplary Damages

Sentencing

Mental Health

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-394

[2020] NZHC 3019

BETWEEN CHRISTOPHER JOHN ROBERT HESSELS
Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:
16 November 2020 (further submissions received 26 November

and 7 December 2020)

Appearances:

C Dunne for the Appellant

B Kirkpatrick for the Respondent

Judgment:

9 December 2020

JUDGMENT OF GAULT J

This judgment was delivered by me on 9 December 2020 at 2:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

Solicitors:
Mr C Dunne, Public Defence Service, Waitakere
Mr B Kirkpatrick and Ms B Archibald, Meredith Connell, Office of the Crown Solicitor, Auckland

HESSELS v POLICE [2020] NZHC 3019 [9 December 2020]

[1] Mr Hessels pleaded guilty to five charges of breach of a protection order.1 He appeals against the refusal of District Court Judge K J Glubb to grant him a discharge without conviction in respect of those charges.2 In the alternative, Mr Hessels says his sentence of four months’ community detention and 10 months’ supervision is manifestly excessive.

Facts of the offending

[2] Mr Hessels and the victim were in a relationship for approximately four months.

[3] On 26 February 2019, a protection order was issued in the Waitakere District Court in favour of the victim and her son. The order was made final on 27 May 2019. One of the special conditions attached to the protection order is for Mr Hessels to give the Police at Henderson no less than 48 hours’ notice if he intends to enter the greater Auckland area.

[4] On Saturday 2 November 2019, Mr Hessels entered the greater Auckland area. He planned to move from Christchurch to Auckland. He did not advise Police that he had done so.

[5] On Saturday 7 November 2019, Mr Hessels sent the victim a message on Facebook.

[6] On 18 February 2020 at 3:09 am, Mr Hessels emailed the victim and apologised for his past behaviour. He attached a photo of the victim’s son. He acknowledged he was not allowed to contact the victim and told her she could take the email to the Police if she wanted, but he hoped she would not.

[7] At 4:00 am, he emailed the victim again and said he had a gift for her son. A photograph of a video game was attached.

1 Family Violence Act 2018, ss 90(a) and 112(1)(a).
2 Police v Hessels [2020] NZDC 18463.

[8] The next day, on 19 February 2020 at 11:24 am, Mr Hessels emailed the victim the same photo of her son.

[9] On 20 February 2020 at about 9:44 pm, Mr Hessels asked the victim via email if he could send her son the video game.

[10] On 25 February 2020 at about 1:52 am, Mr Hessels emailed the victim twice and sent multiple screenshots of a Facebook post which discussed their past relationship. Mr Hessels explained the post was created to share the victim’s side of the…

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 Hessels v Police

Details

AGLC: Hessels v Police [2020] NZHC 3019
Case: [2020] NZHC 3019
Decision Date: 9 December 2020

CaseChat Overview and Summary

In the High Court of New Zealand, Christopher John Robert Hessels appealed against the District Court's refusal to grant him a discharge without conviction for five charges of breach of a protection order. He also argued that the sentence of four months’ community detention and 10 months’ supervision was manifestly excessive. The primary issue was whether the District Court Judge correctly assessed the gravity of the offence and the consequences of conviction under s 107 of the Sentencing Act 2002. The court had to determine if the consequences of conviction were out of all proportion to the gravity of the offence. The secondary issue was whether the sentence imposed was manifestly excessive or wrong in principle. The Court found that the District Court Judge did not err in assessing the gravity of the offending and the consequences of conviction. The persistent and premeditated nature of the breaches, the psychological harm caused to the victim, and the mitigating factors such as the offender's early guilty pleas, remorse, and rehabilitative efforts were appropriately considered. The further evidence of the offender's mental health, though relevant, did not change the outcome. The sentence, while higher than the suggested starting point, was not manifestly excessive when considering the reduced culpability based on the additional evidence. Therefore, the appeal was dismissed.

Orders