Hessian v Police

[2025] NZHC 683

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2025-412-008, 009, 010, 011

[2025] NZHC 683

BETWEEN

MICHAEL PATRICK HESSIAN

Appellant

AND

POLICE

Respondent

Hearing:

10 March 2025 via AVL from Wellington

Appearances:

R Morton for Appellant

J C Collins for Respondent

Judgment:

27 March 2025

JUDGMENT OF CULL J

[1]    Michael Hessian appeals his sentence of two years and eight months’ imprisonment1 on one charge each of assault on a person in a family relationship (representative),2 driving while suspended (third or subsequent),3 refusing to give a blood sample (third or subsequent),4 driving dangerously,5 and being an unlicensed driver and failing to comply with prohibition.6 The end sentence incorporated a successful application by the Crown to re-sentence Mr Hessian on charges for which he was previously sentenced to intensive supervision, which he breached by committing this index offending.

1      New Zealand Police v Hessian [2025] NZDC 1523 [2025 sentencing decision of Judge Flatley].

2      Crimes Act 1961, s 194A; maximum penalty of two years’ imprisonment.

3      Land Transport Act 1998, s 32(1)(c) and 32(4); maximum penalty of two years’ imprisonment; mandatory disqualification for one year or more unless s 81 of the Act applies.

4      Sections 60(1)(a) and (3) and 72(1)(e); maximum penalty of two years’ imprisonment; mandatory disqualification for more than one year unless s 81 of the Act applies.

5      Section 35(1)(b); maximum penalty of three months’ imprisonment; mandatory disqualification for six months or more unless s 81 of the Act applies.

6      Section 52(1)(c); maximum penalty of a fine not exceeding $10,000.

Hessian v Police [2025] NZHC 683 [27 March 2025]

[2]    His previous charges consisted of one charge each of assault on a person in a family relationship,7 threatening to kill,8 procuring or possessing methamphetamine,9 possessing utensils for methamphetamine use,10 and breaching release conditions.11

[3]    The Judge also imposed a disqualification period of two years from 29 January 2025 and made a protection order against Mr Hessian in favour of the victim of the family violence offending and her daughter.

[4]Mr Hessian contends the sentence was manifestly excessive.

What happened?

[5]    At the time of the index offending, Mr Hessian was serving a sentence of intensive supervision for family violence charges against the same victim, together with methamphetamine related charges. The Judge re-sentenced Mr Hessian on those charges in the decision under appeal by quashing the sentence of intensive supervision and adding an uplift to the sentence for the index offending. The quantum of that uplift is challenged on appeal.

The previous offending and sentence

[6]    On 6 December 2022, Mr Hessian was found to possess 2.5 grams of methamphetamine and a methamphetamine pipe. This was the subject of one charge each of possessing methamphetamine and possessing a methamphetamine pipe. Ten days later, on 16 December, he was sentenced to come up if called upon on one charge of breach of release conditions, which had occurred prior to December. On 23 February 2023, Mr Hessian pleaded guilty to the methamphetamine charges. As a result of his offending, Mr Hessian was called upon to be sentenced on the further charge of breach of release conditions before Judge Large.

7      Crimes Act, s 194A; maximum penalty of two years’ imprisonment. This charge substituted the original charge of assault with intent to injure, which has a maximum penalty of three years’ imprisonment under s 193 of the Crimes Act.

8      Section 306; maximum penalty of seven years’ imprisonment.

9      Misuse of Drugs Act 1975, s 7(1)(a); maximum penalty of six months’ imprisonment.

10     Section 13(1)(a); maximum penalty of one years’ imprisonment.

11     Parole Act 2002, s 71; maximum penalty one years’ imprisonment.

[7]    Four months later, in March 2023, Mr Hessian committed family violence offending. He had been in a relationship with the victim for approximately a year. The victim woke up Mr Hessian because she could not find the television remote. Mr Hessian became enraged, grabbing the victim by the hair and using that grip to pull and push her head around, causing her to lose some hair. He yelled that he would kill her and he told her he would break her neck. These actions are the subject of one charge of assault on a person in a family relationship and one charge of threatening to kill.

[8]    On 6 November 2023, Mr Hessian was sentenced to two years of intensive supervision by Judge Large.12 The Judge considered that a credit of 25 per cent for the guilty pleas would be available. He then said that a sentence of intensive supervision was appropriate because:

(a)First, by the sentencing date, Mr Hessian had been in custody on remand for just over six months, equivalent to a 12 month sentence served.13

(b)Second, if the Judge applied the Crown’s suggested starting point of 18 months’ imprisonment and a suggested uplift for Mr Hessian’s previous convictions, the end sentence would be 15 or 16 months’ imprisonment, after a credit of 25 per cent for Mr Hessian’s guilty pleas was factored in. Importantly, this was higher than the sentence the Judge would have imposed. He considered that an uplift for previous convictions was not appropriate.14

(c)Third, Mr Hessian had demonstrated remorse and rehabilitative potential, referring to a letter Mr Hessian had written to the Judge. The Judge considered that a sentence of intensive supervision would enable rehabilitative steps to be undertaken and would give Mr Hessian the chance to “walk the walk”.15 He said that in “one sense” Mr Hessian

12     New Zealand Police v Hessian [2023] NZDC 24752 [2023 sentencing decision of Judge Large].

13     At [20] and [23].

14 At [17].

15 At [23].

could be seen to have served the “penalty part of the sentence” and so it was time to impose the “rehabilitative part of [the] sentence.”16

Index offending and sentence

[9]    On 11 November 2023, Mr Hessian drove a motorcycle while his licence was suspended.17 He had been driving in excess of the speed limit by 33 kmph and this was his ninth conviction for driving while suspended. Police forbade Mr Hessian from driving until he obtained the correct driver’s licence.

[10]   On 25 February 2024, Mr Hessian drove a vehicle dangerously. His speed was inconsistent. He crossed double-yellow centre lines, going entirely into the wrong lane many times. He had several near misses with oncoming cars. At this time, he had still not obtained a correct licence. As Mr Hessian showed signs of being under the influence of substances, he was required to undergo a compulsory impairment test. Mr Hessian failed the test. A blood test was requested but Mr Hessian refused. At the time, Mr Hessian had six prior convictions for driving while affected by a substance.

[11]   On 15 March 2024, Mr Hessian committed further family violence offending against the same victim. By this stage, they had been in a relationship for approximately two years, during which the Police had received four family harm call- outs in total. Mr Hessian pinned the victim down by the neck and held an unlit soldering iron against her cheek, telling her he would use it to burn her face off if she did not stop talking. Later in the evening, while the victim was driving, Mr Hessian struck her while they were both in the car. This followed Mr Hessian calling her derogatory names and she slapped his forehead. The next day, Mr Hessian held the victim in a headlock for roughly five minutes after she refused to engage in sexual activity with him, only stopping when she managed to strike him with a lamp. He then made threats about her family.

[12]   Judge Flatley imposed an end sentence of two years and eight months’ imprisonment. He fixed a global starting point of 37 months’ imprisonment. He took

16     At [23]–[24].

17     Mr Hessian was served a three-month suspension on his vehicle Class 1 licence for exceeding 100 demerit points on 14 September 2023. He did not hold a motorcycle Class 6 licence.

the charge of assault on a person in a family relationship as the lead offence and imposed a 15 month starting point. He applied uplifts of 10 months for the charge of driving whilst suspended and a further 12 months for the charges of refusing to provide a blood sample and driving dangerously. He considered that the totality principle was inherent in the uplifts for the non-lead offences.

[13]   The Judge then uplifted the global starting point by 10 per cent, or roughly four months, to reflect the fact Mr Hessian had offended whilst on intensive supervision, had a lengthy history of serious offending for similar offences, and “every effort has been made to assist [him] across time”.18

[14]   The Judge applied a 20 per cent credit for Mr Hessian’s guilty pleas and a 10 per cent credit in recognition of Mr Hessian’s addiction issues and historic deprivation, but refused to apply a suggested five per cent credit for remorse and rehabilitation, saying:

[22]   … It is difficult to accept that you are remorseful given that you have been before the Court so many times for similar offending. I am sure on previous occasions you have probably indicated remorse, but you cannot consistently seek to have credit for remorse when your offending is persistent, I take some issue with that. I also note that the report records that you were not particularly remorseful as you accepted no responsibility for the offending, so I am not prepared to provide you any discount for remorse.

[23]      As to rehabilitation, well, you have had that opportunity before as well and you were on a sentence of intensive supervision when you re-offended, so it is difficult to see the basis for further discount for rehabilitation.

[15]   This brought the total to 29.5 months’ imprisonment. The Judge then re- sentenced Mr Hessian on the charges for which he was originally sentenced to intensive supervision. With the agreement of Mr Hessian’s counsel, he added an uplift of four months “having regard to Judge Large’s comments”,19 which he described as follows:

[3]     You were sentenced to a period of intensive supervision …  That was in November of 2023 when you were sentenced by Judge Large who noted that you had been in custody for a period of time, effectively having served a 12-month sentence. He said that if he had been sentencing you to prison that day, it would have been to a period of around 16 months and he noted that if

18     2025 sentencing decision of Judge Flatley, above n 1, at [21].

19 At [26].

he did so, you would be released in two or so months from the time of sentence. That tells me that if you are to be re-sentenced in relation to that offending, and it can only be a sentence of imprisonment because that is the end sentence here, and Ms Lawrence has acknowledged that, it needs to be elevated by that four-month period.

[16]   It should be noted that the statement by Judge Large to Mr Hessian having effectively served a 12 month sentence, refers to Mr Hessian having been in custody for 6 months, which is the time to be served for a 12 month sentence. Judge Flatley then reduced the resulting sentence of 33.5 months’ imprisonment by one and a half months to 32 months, or two years and eight months, to account for the totality of the offending, given the number of charges and the span of time over which they occurred.

Grounds of appeal

[17]Mr Hessian appeals the sentence on three grounds of error:

(a)the Judge failed to give credit for Mr Hessian’s rehabilitative efforts;

(b)the four month uplift given in relation to the re-sentencing was excessive and duplicates the uplift for previous offending; and

(c)the Judge applied an excessive uplift for Mr Hessian’s criminal history and offending whilst subject to a sentence of intensive supervision.

[18]   Mr Hessian does not appeal the starting point reached or any other uplifts or credits given by the Judge.

Discussion

[19]   The critical issue in this appeal was whether the respective uplifts of four months’ imprisonment on Judge Flatley’s re-sentencing and the 10 per cent uplift for Mr Hessian’s prior offending were overlapping, thus duplicating the penalty for prior offending, and were in any event too high. I deal with grounds two and three together.

Re-sentencing

[20]   In embarking on the re-sentencing exercise, Judge Flatley sentenced Mr Hessian for the remainder of his prior sentence, dating from Judge Large’s sentence of

intensive supervision. In undertaking that sentencing in November 2023, Judge Large noted Mr Hessian had effectively served a 12 month prison sentence, stating that if he had been sentencing Mr Hessian based upon the Crown’s best argument it would probably have been to a period of around 15 or 16 months in imprisonment and the defendant “would be out in two”.20

[21]   Judge Flatley concluded from Judge Large’s sentencing that Mr Hessian was to be re-sentenced in relation to that sentence of imprisonment.21 This led Judge Flatley to uplift by four months the end starting point, of 16 months, “having regard to Judge Large’s comments in his sentencing notes”.22

[22]   As Mr Collins correctly submits, a re-sentencing Judge, who quashes a community-based sentence and re-sentences an offender23 because of non-compliance with the original sentence, must undertake the sentencing exercise afresh, in light of the circumstances that led to the non-compliance. The Court of Appeal in R v Morgan gives guidance as follows:24

[14]      Where imprisonment is imposed in substitution for a community- based sentence, there will inevitably be a greater degree of hardship for the offender. That is legitimate. In such a case, the offender will have had the benefit of a less restrictive alternative than imprisonment but will have failed to take advantage of it. The re-sentencing Judge is likely to weigh the various purposes and principles of sentencing in a way that is different to that which occurred on the first sentencing. For example, where the community based sentence was imposed because the sentencing Judge placed particular weight on the offender's rehabilitation, that factor may assume less weight on re- sentencing given the offender's failure to comply with the community-based sentence.

[15]      Accordingly, while we accept that there must be some proportionality between the sentence originally imposed and the substituted sentence, we do not consider that there can be any strict correlation between them, much less some mathematical formula. The essential point is that the substituted sentence must be one that could properly have been imposed initially; and it must be imposed against the background that a sentence of community work was thought initially to be appropriate. …

20     2023 sentencing decision of Judge Large, above n 12, at [21].

21     2025 sentencing decision of Judge Flatley, above n 1, at [3].

22 At [26].

23     Under s 54K of the Sentencing Act 2002.

24     R v Morgan [2008] NZCA 232.

[23]   Here, Judge Flatley did not undertake the sentencing exercise himself. The Judge took 16 months’ imprisonment as the sentence that would have been imposed by Judge Large, deducted the effective 12 month imprisonment and imposed a four month imprisonment uplift as the difference.

[24]   While I acknowledge this sentencing exercise was complex, I consider the Judge’s approach was in error for the following reasons:

(a)Judge Large estimated he would probably sentence Mr Hessian to 15 or 16 months in prison, after applying uplifts and credits to the respective starting points even at the Crown’s best argument. 16 months’ imprisonment was not a definite end sentence.

(b)Judge Large did not specify what uplifts were to be made but did record that 25% credit for Mr Hessian’s guilty plea was accepted. He estimated Mr Hessian would be out of prison in two months, but it is unclear how he calculated that, as Judge Large was not attracted to any uplift for previous convictions.25

(c)Mr Hessian, having spent 6 months in custody, had effectively served a 12 month sentence, as Judge Large acknowledged. If Judge Large gave no uplift for previous convictions but deducted 25% for Mr Hessian’s guilty plea, 4 months would be deduced from 16 months, leaving the 12 month sentence Mr Hessian had in effect already served. No further re-sentence was required.

(d)Mr Hessian was sentenced on 6 November 2023 by Judge Large to two years’ intensive supervision and judicial monitoring for 12 months. The current offending occurred between February and March 2024, after 4 months intensive supervision and judicial monitoring. It appears from the District Court record, that Mr Hessian was remanded in custody till his sentencing in January 2025. No account has been taken

25 2023 sentencing decision of Judge Large, above n 12, at [17].

of either the period served under intensive supervision or the custodial remand.

[25]   For the above reasons, I am not satisfied that the 4 month uplift was justified in the circumstances. I consider the additional four months to be excessive and the end sentence should be adjusted accordingly.

Uplift for previous offending

[26]   The uplift of 10 per cent, approximately 3.7 months, was imposed because Mr Hessian offended whilst on intensive supervision, had a lengthy history of serious offending for similar types of offending and every effort was made to assist him.26

[27]   The problem identified in argument before me is what prior offending was included in the 10 per cent uplift. Mr Collins accepts that there must be caution in relation to uplifts relating to driving offences, as the previous driving offences are reflected both in the charges and in the starting point, which weighs against a further uplift for prior driving convictions. If the 10 per cent uplift were to include the re- sentencing of the charges of family violence, methamphetamine possession and breaching release conditions, the further four months’ uplift, calculated on the basis of Judge Large’s sentence, overlaps with the prior conviction uplift.

[28]   I consider the 10 per cent uplift for Mr Hessian’s previous offending and his offending on intensive supervision was appropriate. The most concerning aspect of Mr Hessian’s offending was his continued family violence convictions, particularly against the same victim. I consider that the 10 per cent uplift was justified, particularly given that Mr Hessian committed this current offending whilst on intensive supervision. In R v Wilson, the Court of Appeal considered that an increase to a starting point of 27 months by six months, or 20 per cent, would have been justified for an offender who offended whilst on home detention.27 Ten per cent uplift here is not manifestly excessive.

26 2025 sentencing decision of Judge Flatley, above n 1, at [21].

27     R v Wilson [2008] NZCA 496.

[29]   Given that I am setting aside the four month uplift, I consider there is no duplication in penalty for Mr Hessian’s previous offending. The 10 per cent uplift reflects his offending whilst on intensive supervision and the seriousness of the family violence offending. I acknowledge that any higher percentage would have invited the inference that Mr Hessian was being doubly punished for repeat driving offending, when previous driving while suspended or disqualified offending is included in those charges and their starting points.

Rehabilitation

[30]   Ms Morton, for Mr Hessian, says a credit was due for Mr Hessian’s rehabilitative efforts. While he was in custody, Mr Hessian participated in a short rehabilitative programme, where he voluntarily attended seven therapy sessions. The sessions were to work on anger management, relationships and addiction issues. Further, while Mr Hessian had been serving the sentence of intensive supervision, he had been referred to and satisfactorily attended a non-violence programme.

[31]   It is appropriate to provide material sentencing discounts, when there is evidence that suggests an offender is “genuinely willing” to engage in rehabilitation to make the necessary changes in their life.28

[32]   While the seven therapy sessions undertaken while in custody, and his attendance at a non-violence programme is to be commended, Mr Hessian assaulted the victim while he was attending that programme. It is difficult to accept that he demonstrates a genuine willingness to rehabilitate in the face of his continued re- offending, despite having been granted opportunities to rehabilitate. This is echoed in the pre-sentence report, which describes Mr Hessian’s lack of meaningful engagement across multiple opportunities to participate in rehabilitative programmes.

[33]I find there is no error in the Judge declining to grant a credit on this basis.

28     Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [161].

Conclusion

[34]   This was a complex sentencing exercise. However, I find the four month uplift on the Judge’s re-sentencing exercise was manifestly excessive in the circumstances. The end sentence of two years eight months’ imprisonment is reduced by four months’ imprisonment accordingly.

Result

[35]The appeal is allowed.

[36]The sentence of 2 years 8 months’ imprisonment is set aside and a sentence of

2 years 4 months’ imprisonment is substituted.

Cull J

Solicitors:

Public Defence Service for Appellant Crown Solicitor, Dunedin for Respondent