Hilaire v Police - [2022] NZHC 490

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2022-443-29

[2022] NZHC 490

BETWEEN
JUSTIN HILAIRE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 15 March 2022

Appearances:

J M Woodcock for Appellant J E Bourke for Respondent

Judgment:

17 March 2022

JUDGMENT OF MANDER J

This judgment was delivered by me on 17 March 2022 at 3 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date: .

HILAIRE v POLICE [2022] NZHC 490 [17 March 2022]

[1] Justin Hilaire was sentenced in the District Court at New Plymouth to 15 months’ imprisonment on three charges of breaching a protection order,1 assault on a person in a family relationship,2 and breaching release conditions.3 He appeals his sentence on the basis it is manifestly excessive.

[2] Judge Greig took a starting point of nine months’ imprisonment for the assault, breach of release conditions and breaches of the protection order. He increased this by three months to reflect Mr Hilaire’s previous convictions and in apparent recognition that he was at the time of this offending subject to a sentence of intensive supervision and in breach of his release conditions. The Judge then uplifted the sentence by a further nine months’ imprisonment for a further breach of the protection order. From a total starting point of 21 months’ imprisonment, a six-month deduction for Mr Hilaire’s guilty pleas resulted in an end sentence of 15 months’ imprisonment.

[3] Two grounds of appeal are advanced. First, that the uplift for Mr Hilaire’s previous convictions was excessive. Second, that the uplift for the later offending was too high.

Background

[4] Mr Hilaire had previously been in a relationship with the victim and had recently been convicted of breaching a protection order, for which he was imprisoned for two months. Contrary to the terms of the protection order and his release conditions, on the morning of 3 October 2021, Mr Hilaire went to the victim’s home. A verbal altercation ensued, and the victim asked Mr Hilaire to leave. Initially he did so but returned a short time later and the argument resumed.

[5] Later that evening, Mr Hilaire was again asked to leave by the victim. He refused. After having been pushed out the door, Mr Hilaire started banging on the outside windows demanding to be let in. Out of fear, the victim allowed him back into her home. The victim retreated to her bedroom but Mr Hilaire followed. He pushed the victim onto her back before throwing himself on top of her and pinning her down

1      Family Violence Act 2018, ss 90 and 112(1) — maximum penalty three years’ imprisonment.
2      Crimes Act 1961, s 194A — maximum penalty two years’ imprisonment.
3      Sentencing Act 2002, s 96(1) — maximum penalty one year’s imprisonment.

on the bed. He grabbed her wrists and held them firmly above her head, preventing her from moving. When the victim was able to break free, she called…

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: [2022] NZHC 490
Decision Date: 17 March 2022

CaseChat Overview and Summary

Justin Hilaire appeals his sentence for breaching a protection order, assault on a person in a family relationship, and breaching release conditions, which was set at 15 months' imprisonment. The appeal argues that the sentence is manifestly excessive. The High Court of New Zealand reviewed the sentence to determine if the uplift for previous convictions and the uplift for the later offending were appropriate. The Court found that the three-month uplift for previous convictions was justified, considering the persistent nature of Mr Hilaire's offending and his failure to comply with court orders. However, the nine-month uplift for the later offending was deemed excessive. The Court reduced the uplift to four months and applied a 25% discount for Mr Hilaire's guilty pleas, resulting in a sentence of 12 months' imprisonment.

The Court's reasoning focused on the need to balance the seriousness of the offences with the principles of proportionality and deterrence. The Court recognised the persistence and seriousness of Mr Hilaire's offending but found that the original sentence was disproportionate. The Court emphasised the importance of considering the offender's culpability, the degree of threat, and the harm to the protected person when sentencing for breaches of protection orders. The final orders include a sentence of 12 months' imprisonment with special release conditions for six months.

Orders