Hetherington v Police
[2015] NZHC 1829
•4 August 2015
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CRI-2015-443-32 [2015] NZHC 1829
BETWEEN DYLAN IAN HETHERINGTON
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 28 July 2015 Counsel:
M S Boyd for Appellant
S J Simpkin and A W M Britton for RespondentJudgment:
4 August 2015
JUDGMENT OF CLIFFORD J
Introduction
[1] The appellant, Dylan Hetherington, pleaded guilty to one charge of wounding with intent to injure.1 He was subsequently sentenced by Judge Roberts in the District Court at New Plymouth on 18 June this year to 18 months’ imprisonment.2
Home detention was considered but declined. It is that decision, together with the starting point sentence the Judge identified, that Mr Hetherington challenges.
Facts
[2] In the early hours of Saturday 7 February 2015 Mr Hetherington was filmed by a CCTV camera approaching a man outside a bank. Mr Hetherington punched his victim once to the head and, as his victim fell to the ground, continued to punch him several times to the body and head. Mr Hetherington’s victim them removed an
empty glass bottle concealed in the pocket of his pants in an attempt to defend
1 Crimes Act 1961, s 188(2).
2 New Zealand Police v Hetherington [2015] NZDC 11340.
HETHERINGTON v NEW ZEALAND POLICE [2015] NZHC 1829 [4 August 2015]
himself. Mr Hetherington grabbed the bottle from his victim and hit him twice on the back of his head with the bottle while he was lying on the ground. The bottle did not break.
[3] Mr Hetherington’s victim received two large gashes approximately three to five centimetres in length on the back of his head as a result of being hit with the bottle, and a smaller gash on his forehead as a result of being punched by Mr Hetherington. He was taken to an accident and emergency department shortly after the attack. He received 10 stitches to the wound on his forehead and three staples to the wounds on the back of his head.
[4] Mr Hetherington has previous convictions between 2011 and 2013 for disorderly behaviour, excess breath alcohol and operating a vehicle carelessly. At the time of his sentencing Mr Hetherington was facing a further charge of driving with excess blood alcohol. On that occasion Mr Hetherington crashed the car he was driving and suffered a back injury. He was on bail when that offending occurred.
[5] Mr Hetherington engaged in a restorative justice process, although his victim chose not to appear personally. Mr Hetherington wrote a letter of apology to his victim and acknowledged a drinking problem. He indicated a willingness to get counselling for his drinking problem. He intends to go back to farming work, which is what he has been doing for the last three “seasons”.
[6] Mr Hetherington’s pre-sentence report recommended home detention, together with a special condition that Mr Hetherington attend and complete an appropriate programme to address his alcohol problem to the satisfaction of a probation officer.
The challenged sentencing decision
[7] The Judge characterised Mr Hetherington’s offending as involving gratuitous street violence. In terms of the Taueki factors,3 he identified the use of a weapon, the attack to the head and the vulnerability of Mr Hetherington’s victim. He set a
starting point sentence of two years and three months’ imprisonment, placing Mr Hetherington’s offending within the overlap of bands 2 and 3 of Nuku.4 The Judge allowed a two month discount for remorse, and a further month for Mr Hetherington’s youth (12.5 per cent in all), and finally six months (25 per cent) with respect to Mr Hetherington’s guilty plea.
[8] On that basis, the Judge arrived at the end sentence of 18 months imprisonment.
[9] In declining home detention the Judge reasoned:
1.The offending is serious. You acknowledge throughout this evening you were maintaining a running encounter with your victim. He, of course, has a counter approach to that, contending that you were a stranger. That last encounter, as I have said, was quite over the top, you struck a man on the head with a bottle when he was no threat to you at all.
2. Liquor is problematic. You acknowledge this. Ten bourbons,
12 Coronas, and a lot of shots on the night of the incident. Eight days later, now addressing the allegation of driving with excess blood there is a high reading. It is not disputed, I gather, from an earlier callover that identity is there challenged [sic], nor was time and place. Your ability, thus, to attain and retain abstinence is questionable.
3.Whatever the defence might be on the excess blood, you were the driver. The blood sample was taken from you and at 2.30 am you were outside your curfew hours. You had taken liquor, too, in breach of your bail obligations. Your ability to regulate your behaviour is questionable.
4.The address you nominate for home detention is the same address to which you were bailed. While no requisition is raised as to the intentions of your sister and her partner, the reality is they had no sway over you overseeing and ensuring bail compliance. They must have been alert to your obligations, particularly in relation to curfew as police would have attended at that address on a number of occasions.
5. The sentence of nine months’ home detention is a long one.
Compliance is something you have previously avoided. I do not consider it could reasonably be expected.
Appeal
[10] For Mr Hetherington Ms Boyd submitted that, with reference to Nuku, a starting point sentence of 18 months would have been appropriate.
[11] The Judge’s two years and three months was, she argued, manifestly excessive. Ms Boyd argued that the Judge had been wrong to consider vulnerability an aggravating factor. Ms Boyd accepted that Mr Hetherington’s attack to the head of his victim, and his use of a weapon, were aggravating factors. But when assessed, they were of low to moderate seriousness. On that basis, Mr Hetherington’s offending should have been recognised as being band 2 offending of low to moderate seriousness. That is why an 18 month starting point would have been appropriate.
[12] Ms Boyd also submitted that the Judge had been wrong in principle to decline home detention.
[13] The seriousness of Mr Hetherington’s offending was not, in itself, a reason for declining home detention. Home detention is, Parliament has recognised, an alternative to a sentence of imprisonment. The Judge had not recognised the denunciation and deterrence which a sentence of home detention provides. Furthermore, and in terms of holding Mr Hetherington accountable for his offending, Mr Hetherington had attended at restorative justice and provided a written apology to his victim.
[14] Mr Hetherington had recognised his alcohol problem: he had never had a rehabilitative sentence and was willing to undergo counselling and other treatment. The advice of the Department of Corrections recommended home detention with conditions addressing alcohol.
[15] Ms Boyd acknowledged Mr Hetherington’s breach of bail, but said that had to be put in the context of the fact that he would been on bail for a long period, and had only breached it once.
[16] Nor, Ms Boyd argued, was it relevant that the proposed home detention address was the address to which Mr Hetherington had been bailed, and from which he had breached his bail.
[17] Mr Hetherington was, contrary to what would appear to have been the Judge’s understanding, paying off his fines. Other than the breach of bail, there was therefore no reason to think he would not comply with the terms of home detention notwithstanding the Judge describing the period of nine months as lengthy.
[18] In all the circumstances, home detention should have been imposed.
[19] For the police, Ms Simpkin argued that there had been no error in law by the Judge, and that the end sentence was within range. The Judge had correctly recognised the presence of three aggravating factors. He had recognised the victim’s vulnerability to the extent only of the victim being unable to protect himself. The discounts could not be challenged. The Judge had considered home detention and had set out clearly reasons why he did not consider that to be appropriate. All the factors he relied on were relevant. Finally, the fact that Mr Hetherington had breached his bail was relevant to whether or not home detention would be an appropriate sentence for him.
Analysis
Starting point
[20] In Taueki,5 the Court of Appeal provided guidance on s 188(1), grievous bodily harm, offending. The Court said it expected those guidelines would be applied “with appropriate adaptation” to other cases involving “serious violence”.
[21] A grievous bodily harm offender will be convicted only if he acted with an intention of inflicting really serious harm, and has in fact done so. There is, in other words, a reasonably direct correlation between intention and injury. In Nuku6 the
Court of Appeal recognised the difficulty of applying Taueki to offences where the
5 R v Taueki, above n 3.
6 Nuku v R, above n 4.
intent is to cause injury, as the resulting level of harm to the victim may be greater than the offender contemplated. Nuku therefore adapted the Taueki guidelines to provide guidance to judges when sentencing for offending under ss 188(2) (wounding, maiming, disfiguring or causing grievous bodily harm with intent to injure), 189(2) (injuring with intent to injure – five years maximum) and 191(2) (aggravated injury – seven years maximum).
[22] The Nuku bands are:
(a) Band one: where there are few aggravating features, the level of violence is relatively low and the sentencing judge considers the offender’s culpability to be at a level that might have been better reflected in a less serious charge, a sentence of less than imprisonment can be appropriate. (b)
Band two: a starting point of up to three years’ imprisonment will be appropriate where three or fewer of the aggravating factors listed at [31] of Taueki are present.
(c)
Band three: a starting point of two years up to the statutory maximum (either five or seven years, depending on the offence) will apply where three or more of the aggravating features set out in Taueki are present and the combination of those features is particularly serious. The presence of a high level of or prolonged violence is an aggravating factor of such gravity that it will generally require a starting point within band three, even if there are few other aggravating features.
[23]
It is
important to note, as Ms Boyd submitted and as the Crown
acknowledged, that applying these guidelines does not involve a mechanical exercise. In both Taueki and Nuku the Court of Appeal cautioned against such an approach, particularly as regards the significance of the given number of aggravating factors.7 The application of that caution is reflected in any number of sentencing decisions where, based on an overall evaluation, a band 2 sentence has been considered appropriate, although there were sufficient aggravating factors present to indicate a band 3 sentence.8
[24] I do not accept Ms Boyd’s submission that Mr Hetherington’s victim was not
vulnerable. In Taueki, vulnerability is not limited by reference to the status of a
7 R v Taueki, above n 3, at [40]; Nuku v R, above n 4, at [42].
8 See for instance R v Potaka-Alexander [2012] NZHC 2788 in which five aggravating factors were present, or R v Emery [2012] NZHC 391 in which four aggravating factors were present.
victim, for example a child or someone who is physically disabled. The phrase the Court of Appeal used in Taueki was “otherwise defenceless”. Mr Hetherington’s victim was attacked from the back, knocked to the ground and hence, in my view, vulnerable. What I do accept is that whilst Mr Hetherington’s victim was vulnerable, the extent of that vulnerability was comparatively limited.
[25] More significantly, this was an unprovoked attack to the head – initially by punching and then with the bottle Mr Hetherington took from his victim. I regard those aspects of this as being moderately serious Nuku band 2 offending.
[26] Standing back and making the overall evaluation called for, I have concluded that the starting point of two years and three months imprisonment was manifestly excessive. That is a relatively high band 2 sentence, and moreover is a sentence that could be applied to band 3 offending. As submitted by Ms Boyd, a starting point sentence in the vicinity of 18 months was what was called for.
[27] On that basis, taking a similar approach as the Judge took to mitigating factors, allowing approximately 10 per cent discount for Mr Hetherington’s relative youth and remorse, and 25 per cent for his guilty plea, the end sentence I consider appropriate is 12 months’ imprisonment.
Home Detention
[28] The Court of Appeal stated in James v R that:
… an appeal against refusal to grant home detention does not provide an opportunity to revisit or review the merits. The question is whether [the judge erred] in exercising his sentencing discretion: that is, did he apply an incorrect principle, give insufficient or excessive weight to a particular factor, or was he plainly wrong?
[29] The Judge considered four negative factors when he decided not to sentence Mr Hetherington to home detention. He referred to the seriousness of Mr Hetherington’s offending, his alcohol problem, his subsequent drink-driving (alleged) offence, the significance of that subsequent offence in terms of the suitability of the proposed home detention address and his assessment of
Mr Hetherington’s ability to comply with the terms of a lengthy home detention sentence.
[30] I am concerned that, whilst the Judge has considered factors which count against home detention, he has not considered relevant factors which go towards a conclusion that a sentence of home detention would be the appropriate one.
[31] At 20 years old Mr Hetherington has a relatively limited criminal and traffic history (operating a vehicle carelessly and breath alcohol, 2013 and 2012; disorderly behaviour, 2011). He has never before been sentenced to imprisonment. Moreover, he has also never been given a rehabilitative sentence. Mr Hetherington has admitted to a problem with drinking, in that when drinking he can and has behaved badly. Mr Hetherington has shown a willingness to address that behaviour.
[32] The Court of Appeal has recognised the punitive nature of a sentence of home detention. The Court has also recognised the ability for such a sentence to be combined with special conditions that can address underlying causes of offending.
[33] In my view, they are all matters which support a conclusion that home detention would be the appropriate outcome in Mr Hetherington’s case. It is not clear to me that the Judge considered those matters, and in particular that he had regard to the punitive and deterrent aspects of a sentence of home detention. In my view, the Judge did err in failing to recognise factors which count in favour of a sentence of home detention in Mr Hetherington’s case.
[34] Turning to the reasons why the Judge declined to impose the sentence of home detention, I acknowledge Mr Hetherington’s problem with alcohol, and the possible impact of that problem on his successful compliance with such a sentence. That problem is manifested not only in this offending, but also – it would appear – in the events which gave rise to the charge of driving with excess blood alcohol that Mr Hetherington now faces. My understanding is that Mr Hetherington does not deny the relevant behaviour: he intends to mount a technical defence to the charge.
[35] I also accept that the fact Mr Hetherington was on bail at that time, and at the address to which it is proposed by his counsel he be sentenced to home detention, are not factors which count in his favour.
[36] Having said that, I do not consider the fact that this offending was regarded as being serious by the Judge is one that, from a legal point of view, should count against Mr Hetherington. The end sentence identified, which responds to the seriousness of his offending, fell within the range where home detention was a legal option.
[37] The Judge’s concern at the likelihood of compliance with a nine month sentence of home detention has to be seen in light of my conclusion as to the starting point sentence he fixed. To say that “compliance is something you have previously avoided” is, I think, a little unfair on Mr Hetherington.
[38] The real issue for me is whether, because of Mr Hetherington’s drinking problem, home detention is an appropriate sentence.
[39] Mr Hetherington is relatively young. He has not previously, as I have already recorded, been sent to prison or had a rehabilitative sentence imposed. In my view, the combination of home detention and a special condition to attend alcohol/drug counselling as required by his probation officer provides a real opportunity to address what would appear to be the root cause of Mr Hetherington’s offending. Mr Hetherington has accepted he has a problem that needs to be addressed. Mr Hetherington did also participate in restorative justice and acknowledged his offending and apologised to his victim. The Corrections Department’s pre-sentence report recorded Mr Hetherington as having a supportive family environment. Mr Hetherington’s mother attended this appeal. The Department recommended the sentence Ms Boyd argues for on appeal.
[40] Having regard to all those matters, I have concluded that a sentence of home detention is the appropriate outcome in Mr Hetherington’s case. I have identified a starting point sentence, after discounts for youth, remorse and guilty plea of
12 months. On that basis, a sentence of home detention of six months is indicated.
Ms Boyd also submitted that were I to allow the appeal, I should also take account of the time Mr Hetherington has now spent in custody. I do not think such an adjustment is necessary here. Substituting home detention for a sentence of imprisonment is not a mechanical exercise, nor is recognising time spent in prison.
[41] I therefore allow Mr Hetherington’s appeal, quash his sentence of 18 months’ imprisonment and substitute a sentence of six months’ home detention. Mr Hetherington’s home detention address is to be 5 Pukatea Street, Inglewood: my anticipation – given the time of day – is that Mr Hetherington’s release will not occur before tomorrow. The usual conditions apply on release. Mr Hetherington is also made subject to the special condition that he attend such programmes or treatment as may be directed by his probation officer to address his alcohol problem.
“Clifford J”
Solicitors:
Hannam and Co Lawyers Ltd, New Plymouth for Appellant
Crown Solicitor, New Plymouth for Respondent
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