Hetherington v Police - [2015] NZHC 1829

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 Respondent

Judgment:

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…

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.

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Details

Case: [2015] NZHC 1829
Decision Date: 4 August 2015

CaseChat Overview and Summary

Dylan Ian Hetherington pleaded guilty to one charge of wounding with intent to injure, and was sentenced to 18 months' imprisonment by Judge Roberts in the District Court at New Plymouth. Hetherington appealed the sentence, arguing that the starting point sentence was excessive and that home detention should have been imposed. The court considered the legal issues of the starting point sentence and the appropriateness of home detention. In relation to the starting point sentence, the court found that it was excessive and that a sentence of 18 months was more appropriate. The court also found that the judge had not considered relevant factors in declining to impose home detention, such as Hetherington's willingness to address his alcohol problem and his participation in restorative justice. The court concluded that home detention was the appropriate outcome and substituted a sentence of six months' home detention for the sentence of 18 months' imprisonment. 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.

Orders