Hewes v Police - [2015] NZHC 1607

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2015-409-000040 [2015] NZHC 1607

BETWEEN
BRENDAN PAUL HEWES

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 9 July 2015

Appearances:

B Ayrey for Appellant
C E Butchard for Respondent

Judgment:

9 July 2015

ORAL JUDGMENT OF GENDALL J

Introduction

[1] In February 2015 Mr Brendon Hewes pleaded guilty to one charge of injuring with intent to injure, one charge of breaching a protection order, and one charge of burglary.1 On 10 April 2015, Mr Hewes was sentenced in the District Court to two
years’ four months imprisonment.2 Mr Hewes now appeals that decision on the

stated basis:

That the learned Judge erred/double counted the aggravating features and that the end sentence was manifestly excessive and disparate with other cases.

1 Crimes Act 1961, ss 231(1)(a) (burglary – maximum penalty of 10 years’ imprisonment) and
189(2) (injuring with intent – maximum penalty of 5 years’ imprisonment); Domestic Violence Act 1995, ss 19(1)(a), 49(1)(a) and 49(3) (breach of protection order – maximum penalty of 3 years’ imprisonment).
2 Police v Hewes [2015] NZDC 5953.

HEWES v NEW ZEALAND POLICE [2015] NZHC 1607 [9 July 2015]

Factual Background

[2] Turning now to the factual background in this matter, a temporary protection order was made against Mr Hewes on 17 March 2014. At 1 pm on the afternoon of
11 October 2014, Mr Hewes went to the victim’s home, to which initially she consented. Part way through that meeting, Mr Hewes became angry. The victim then asked Mr Hewes to leave, with which request Mr Hewes complied.

[3] At 7.30 pm on the evening of 11 October, the victim left her house with a young child to go to the nearby shops. When she was leaving, she ensured the house was secure by locking all doors and latching the windows. She kept the key to the house and, importantly, the locks had already been changed to prevent Mr Hewes getting into the house.

[4] Sometime between 7:30 p.m. when the victim left her house and approximately 8:30 p.m. that evening when the victim returned to her home, Mr Hewes had gone to the house, climbed over a fence, obtained some implements, and prised open a window to the kitchen. Through further efforts Mr Hewes gained access to the house. Once the victim got home, Mr Hewes approached her, grabbed the backpack she was wearing, and asked her for cigarettes and money. She tried to back away. Mr Hewes pinned her to the corner of the kitchen by grabbing a handful of her hair and her shoulder. She repeatedly begged Mr Hewes to leave while he demanded a cell phone be returned to him. The victim’s young son ran into the backyard of the address and began screaming for help.

[5] Inside the house, Mr Hewes was verbally abusing the victim before swinging her around by the backpack she was wearing. She lost control of the backpack, leaving it in Mr Hewes’ hands. When the victim tried…

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 Hewes v Police

Details

AGLC: Hewes v Police [2015] NZHC 1607
Case: [2015] NZHC 1607
Decision Date: 9 July 2015

CaseChat Overview and Summary

Hewes v New Zealand Police involved an appeal by the appellant, Mr Brendon Hewes, against the sentence imposed by the District Court. The appellant pleaded guilty to charges of injuring with intent to injure, breaching a protection order, and burglary. Hewes was sentenced to two years and four months imprisonment. He appealed on the basis that the learned Judge erred by double counting the aggravating features and that the sentence was manifestly excessive. The court had to decide whether the District Court had erred in sentencing and whether the sentence was within the available range. The court found that while there was an error in the sentencing process, the ultimate sentence was not outside the available range. The appeal was dismissed.

The Court of Appeal has held that the sentence appeal regime remains the same as that under the predecessor regimes in the Crimes Act 1961, s 385(3) and the Summary Proceedings Act 1957, s 121(3). The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. The appellant must persuade the appeal court that the ultimate sentence imposed was outside the range available to him or her. In this case, the Court of Appeal confirmed that the sentencing judge needs to undertake an overall assessment of the seriousness of the offending and identify aggravating factors, but also evaluate the seriousness of a particular factor. The Court of Appeal in Nuku stated that the guidance given in this judgment is not to be applied in a formulaic or mechanistic manner. The sentencing judge needs to stand back and undertake an overall assessment of the seriousness of the offending.

The court found that while there was an error in the sentencing process, the ultimate sentence was not outside the available range. The court agreed that on the face of it there may be an appearance of double counting. The court addressed the exercise of sentencing afresh to ascertain both the acceptability of Judge Kellar's approach and whether the ultimate sentence imposed was within the available range. From Taueki, the relevant aggravating factors in this case are: (a) violence, (b) premeditation, (c) serious injury, (d) attacking the head, (e) facilitation of a crime, (f) vulnerability of the victim, and (g) home invasion. The court agreed that Judge Kellar's approach was not correct when he took into account certain aggravating features of the injuring with intent to injure, and also provided an uplift for the other concurrent offending, which was largely captured in those aggravating features. That said, the court did not agree that the sentence imposed was outside the available range. When one steps back and reviews the totality of Mr Hewes' offending in the round, accounting for all offending, this offending falls somewhere near the bottom end of band three of Nuku, justifying a starting point of between three and three and a half years' imprisonment. On this, there would be no further uplift as Mr Hewes' other offending is wholly encapsulated in that starting point. The court found that the uplift of six months was unobjectionable, particularly so when balanced against the undoubtedly generous discount of four months for steps Mr Hewes has taken to rehabilitate himself. The full discount of 25 per cent was also generous in this case, even though his guilty plea did come early. While those cases do provided assistance, none are directly translatable to the current offending, which, in combination, the court viewed as very serious. Therefore, while the court accepted that there may have been a potential error in the manner adopted to arrive at the sentence finally imposed here, the court did not consider the ultimate sentence to be outside the range available to Judge Kellar. Indeed, in some ways the sentence might be seen as a lenient one when one steps back and views in the round the totality of the offending and the generous discounts given.

Orders