Hinton v Police
[2015] NZHC 560
•25 March 2015
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2014-070-4356 [2015] NZHC 560
BETWEEN JESSE PAUL HINTON
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 24 March 2015 Appearances:
N M Dutch for Appellant
A Pollett for the RespondentJudgment:
25 March 2015
JUDGMENT OF ELLIS J
This judgment was delivered by me on Wednesday 25 March 2015 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:………………………….
Solicitors:
N M Dutch, Barrister, Tauranga
A Pollett, Ronayne Hollister-Jones Lellman, Tauranga
HINTON v NEW ZEALAND POLICE [2015] NZHC 560 [25 March 2015]
[1] Mr Hinton pleaded guilty to, and was convicted of, one charge of assault with a blunt instrument, namely a car. That offence carries a maximum penalty of five years’ imprisonment under s 202C of the Crimes Act 1961. On 16 February 2015
Judge Ingram sentenced him to nine months’ imprisonment. He now appeals that sentence.
Facts
[2] In the early afternoon of 20 November 2014, Mr Hinton was driving on a rural property in Thorn Road in Tauranga when he saw the victim riding his motorcycle on the property. The vehicles crossed paths. Mr Hinton then put his car into reverse and accelerated straight towards the victim who, thinking he was about to be hit, stepped back from his motorcycle. Mr Hinton’s car hit the motorcycle causing it to fall into a fence although it was not damaged as a result of being hit. The victim was uninjured.
[3] In explanation Mr Hinton said he “just lost it” when he saw the victim. (Both men appear to be embroiled in a wider dispute involving other members of the victim’s family). Mr Hinton admitted to reversing aggressively towards the victim but says he mis-timed braking on the gravel and hit the motorcycle.
[4] Mr Hinton is 29 years old and has a small number of previous convictions, including another for assault with a blunt instrument. He has not previously been sentenced to imprisonment.
Sentencing in the District Court
[5] After canvassing the facts of the matter Judge Ingram observed the highly dangerous nature of the offending and noted that it was only the reflexes of the victim that meant that he had not been seriously injured.
[6] Because the pre-sentence report had not recommended an electronically monitored sentence due to the unavailability of a suitable address, the Judge considered that imprisonment was the only available option. He expressed the view that previous sentences of supervision had been unsuccessful and said that a
community-based sentence was inappropriate due to Mr Hinton’s poor motivation to address the factors giving rise to his offending, namely his problems with anger, his continued use of drugs and alcohol and his unmanaged mental health issues.
[7] The Judge also noted that although Mr Hinton had engaged in a restorative justice conference, it had been unsuccessful, largely due to Mr Hinton’s behaviour during the conference.
[8] Judge Ingram adopted a starting point of 12 months’ imprisonment. The aggravating features of the offending were said to include the nature and extent of the potential violence involved in Mr Hinton’s use of a car and the comparative vulnerability of the victim. The Judge accepted that there was no bodily injury. The starting point was then discounted by three months’ on account of Mr Hinton’s guilty plea and his attendance at the (albeit unsuccessful) restorative justice conference.
[9] The Judge acknowledged that Mr Hinton needed rehabilitation in relation to his various problems but considered that this would best be accommodated by a sentence of imprisonment with release conditions to attend alcohol and drug counselling, psychological assessment and any other training or counselling as recommended by the probation officer. Leave to apply for a substituted sentence of home detention in the event that a suitable address became available was declined.
Approach to appeals against sentence
[10] Section 250(2) of the Criminal Procedure Act 2011 states that the Court must allow an appeal against sentence if satisfied that:
(a) for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
[11] In any other case, the Court is required to dismiss the appeal.1
1 Criminal Procedure Act 2011, s 250(3).
[12] The Court of Appeal in Tutakangahau v R has recently confirmed that s 250(2) was not intended to change the previous approach taken by the courts under the Summary Proceedings Act 1957.2 Further, despite s 250 making no express reference to “manifestly excessive”, this principle is “well-engrained” in the court’s approach to sentence appeals.3
[13] The approach taken under the former Summary Proceedings Act was set out in R v Shipton:4
(a) There must be an error vitiating the lower Court’s original sentencing discretion: the appeal must proceed on an “error principle.”
(b) To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.
(c) It is only if an error of that character is involved that the appeal
Court should re-exercise the sentencing discretion.
[14] Accordingly, the High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.5
This appeal
[15] Mr Hinton’s appeal focussed squarely on the refusal of the Judge to consider a community based sentence and, in particular, a sentence of intensive supervision. Mr Dutch submitted that such a sentence would best suit Mr Hinton’s rehabilitative needs. In the event that I was to consider that a sentence of imprisonment was the least restrictive available option, Mr Dutch said that the starting point of 12 months was manifestly excessive.
[16] No issue was taken with the discount given to Mr Hinton for personal mitigating factors. Nor did Mr Dutch seek to persuade me that home detention was
2 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].
3 At [33], [35].
4 R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].
5 Ripia v R [2011] NZCA 101 at [15].
the appropriate outcome (there being no suitable address) or that leave should have been given to Mr Hinton to apply in that respect.
Discussion
[17] As far as the possibility of a non-custodial sentence is concerned, it seems to me that there can be no quibble with the learned District Court Judge’s approach. As I have said, he specifically recorded that previous sentences of supervision had failed and was also plainly and rightly concerned about Mr Hinton’s refusal to address the causes of his offending or to engage with those who might be able to help him. Moreover, although Judge Ingram expressly declined to take into account the report of the failed restorative justice meeting, it makes worrying reading. There appears to me to be a genuine basis for ongoing concerns in relation to the safety of the victim and his wife at the hands of Mr Hinton.
[18] As far as the starting point is concerned, Mr Dutch’s principal submission was that it was manifestly excessive and wrong in principle because the Judge did not expressly refer to any guideline judgment or other authority. More particularly, he said that had consideration been given to the Court of Appeal’s decision in Nuku v
R, a much lower starting point would have been adopted.6
[19] In Nuku, the Court attempted to provide guidance (rather than a guideline judgment) on how the Taueki bands can be adapted to apply to lesser charges under ss 188(2), 189(2) and 191(2) of the Crimes Act, each of which involves injuring with intent.7 Those offences carry maximum sentences of seven, five and seven years’ imprisonment respectively. The Court said (at [38]) that the following bands might be applied to such offending:
(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.
6 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
7 R v Taueki [2005] 3 NZLR 372 (CA) is the guideline judgment in relation to sentencing for so-
called “GBH offences” (primarily offences under s 188(1) of the Crimes Act 1961).
(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.
[20] Both Nuku and Taueki were concerned with offences that necessarily involve actual injury (or grievous bodily harm). The aggravating features listed at [31] in Taueki are all predicated on such harm having occurred. Most of them are concerned with the gravity of the harm inflicted or the way in which, and the purpose for which, it was inflicted.
[21] I suppose that some of these factors could be applied by analogy to a s 202C case where (as here) the relevant “assault” constitutes only an attempt or a threat.8 In order to do this in any kind of meaningful way, however, I think consideration would need to be given to the seriousness of the threatened or attempted harm, together with the way in which, and the purpose for which, it was threatened, or attempted to be inflicted. For what it is worth it seems to me that it was precisely these kinds of
matters that were taken into account by Judge Ingram.
[22] In any event, taking such an approach does not seem to me to be of any great assistance to Mr Hinton. That is because I would tend to regard his offending as directly engaging (by analogy) two of the relevant ([31] Taueki) aggravating features, namely:
(a) (threatened or attempted) extreme violence; (b) (threatened or attempted) serious injury;
[23] While I accept that the (threatened or attempted) use of a weapon is inherent
in a s 202C charge, the fact that the weapon here was a car, with the obvious lethal
8 Both an attempt and a threat fall within the definition of “assault” for the purposes of s 202C by
virtue of the definition in s 2(1).
risk that that entailed, necessarily emphasises the two aggravating features mentioned in the preceding paragraph.
[24] I also acknowledge that Judge Ingram’s reference to the vulnerability of the victim as an aggravating feature here involved a usage of that term that is wider than is commonly understood in the sentencing context. Again, however, the fact that the victim was unprotected and alone with Mr Hinton’s car bearing down at speed upon him does serve to underscore the extreme nature of the threat and the risk of very serious injury.
[25] Accordingly I reject Mr Dutch’s submission that an application of Nuku to
the facts of Mr Hinton’s case would place him within the first, least serious band.
[26] In addition, Mr Dutch did not really address the issue of whether the sentence range in each of the Nuku bands would require modification to reflect the fact that a s 202C offence involves an assault rather than injuring/wounding with intent. That may be arguable, although given that the maximum penalty under s 202C is the same as that under s 189(2) such a reduction is not a foregone conclusion. But even were some downward adjustment to be made it is far from obvious that the 12 month starting point adopted by Judge Ingram was out of the available range, given the nature and number of aggravating features I have referred to above.
[27] The conclusion that the starting point adopted by the learned Judge was within the available range is in my view confirmed by the decision in Manuel v Police, which was referred to me by the Crown.9 The facts there were that a police officer approached Mr Manuel who was in a car that was stolen. The officer put his hand through the driver’s window onto Mr Manuel’s shoulder and told him he was under arrest. Mr Manuel responded by starting the car, and then backing it up a short distance and driving hard at the officer. The officer received a glancing blow to the thigh but avoided serious injury by jumping out of the way. Mr Manuel then drove
away in a reckless manner.
9 Manuel v Police [2014] NZHC 2648.
[28] Mr Manuel was convicted of assault with a weapon (the car), reckless driving, escaping from custody and receiving. The District Court had adopted a starting point of three years for the totality of the offending. In allowing Mr Manuel’s appeal, Moore J said that the charge of assault with a weapon should not have attracted a starting point of more than 18 months’ imprisonment.10 The Judge considered the lack of physical harm was relevant to an assessment of culpability as Mr Manuel’s primary motive had been to escape lawful custody. He accepted that it was only a matter of good luck that the officer was not injured.11
[29] Moore J also referred to Waa v Police, where Mr Waa was convicted of a number of offences, one of which was for assault involving the use of a car as a weapon by driving it straight towards a police car three times. The sentencing judge there had imposed a sentence of 18 months’ imprisonment which was upheld by Ellen France J on appeal.12
[30] Given the starting points endorsed in those two decisions it is difficult to see that adopting a starting point that was lower by a third in Mr Hinton’s case could be said to be outside the available range. That reduction seems to me to be entirely appropriate in light of the additional aggravating features that existed in Manuel and Waa, namely the fact that the victim was a police officer (both Manuel and Waa), the fact of (albeit minimal) contact with the body of the victim (Manuel) and the fact that the prisoner drove at the victim more than once (Waa).
Result
[31] On any analysis, therefore, I consider that the starting point adopted by Judge Ingram was squarely within the available range. Nor is there any discernible error of approach in the Judge’s rejection of community based sentencing options. Mr
Hinton’s appeal is dismissed accordingly.
Rebecca Ellis J
10 At [32], [40].
11 At [37].
12 Waa v Police HC Masterton CRI-2004-435-2, 21 May 2004.
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