Hobbs-Reynolds v Police

[2018] NZHC 1068

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-077

[2018] NZHC 1068

BETWEEN

SHANE HOBBS-REYNOLDS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

7 May 2018

Counsel:

V Feyen for Appellant

H G Max for Respondent

Judgment:

16 May 2018

JUDGMENT OF BREWER J

This judgment was delivered by me on 16 May 2018 at 11:30 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Vivienne Feyen (Auckland) for Appellant Meredith Connell (Auckland) for Respondent

HOBBS-REYNOLDS v POLICE [2018] NZHC 1068 [16 May 2018]

Introduction

[1]    Mr Hobbs-Reynolds pleaded guilty to one charge of injuring with intent to injure.1 On 13 March 2018, Judge AM Wharepouri sentenced him to eight months’ home detention.2 Mr Hobbs-Reynolds now appeals the length of the sentence. He submits it is manifestly excessive.

[2]    I will allow the appeal only if I find an error in the sentence which means another sentence should be imposed.3 If there is an error which means the sentence is manifestly excessive, then I will reduce the sentence to the one I find appropriate. It is the sentence itself which must be looked at in the final analysis. Errors in the formulation of the sentence will not be significant unless they result in a manifestly excessive sentence.

Background

[3]    Mr Hobbs-Reynolds was in a relationship with an ex-partner of Mr Bradley. On 20 March 2017, Mr Bradley displayed intimate photographs of his ex-partner on Facebook. The ex-partner tried to persuade Mr Bradley to take them down, but he refused.

[4]    Mr Hobbs-Reynolds drove from Te Atatu to Pakuranga where Mr Bradley lived. At about 7:30 pm, he walked into Mr Bradley’s house through the front door and went into the lounge where Mr Bradley was sitting on his bed. Mr Hobbs- Reynolds confirmed Mr Bradley’s name and then punched him. The force of the punch knocked Mr Bradley backwards. He recovered and was again punched in the face by Mr Hobbs-Reynolds. The force of this punch caused Mr Bradley to stumble backwards towards the bathroom. Mr Hobbs-Reynolds then punched Mr Bradley a third time, this time to his nose, causing Mr Bradley to fall. While Mr Hobbs- Reynolds was punching Mr Bradley, he was yelling, “Take those fucking photos down.”

1      Crimes Act 1961, s 189(2); the maximum penalty for which is five years’ imprisonment.

2      R v Hobbs-Reynolds [2018] NZDC 4752.

3      Criminal Procedure Act 2011, s 250.

[5]    Mr Bradley agreed to remove the photographs from Facebook and did so at once. He said to Mr Hobbs-Reynolds, “There, are you happy?” Mr Hobbs-Reynolds then  called the  ex-partner, saying, “Hey babe,  I’ve  got  it sorted.”  He then  left  Mr Bradley’s address.

[6]    As a result of the assault, Mr Bradley received injuries including a lip contusion, a lip contusion laceration, a forehead contusion, and abrasions to his right elbow and left arm.

[7]    Mr Hobbs-Reynolds entered a plea of guilty before trial after the Police agreed to withdraw a charge of threatening to kill.

[8]    Mr Hobbs-Reynolds had previously appeared before the Court. On 17 June 2014, he was convicted on a charge noted as “demands to steal (other weapon)”. He was sentenced to 40 hours’ community work and supervision for six months.

Sentence

[9]    Judge Wharepouri had regard, in particular, to Nuku v R4 and Green v Police.5 He  identified  three  aggravating  factors:   premeditation,   unlawful   entry   into  Mr Bradley’s address, and an attack which focused on Mr Bradley’s head. I infer the Judge decided the case fell into band two of Nuku. The Judge noted that in Green, a defendant who pleaded guilty to one charge of injuring with intent to injure was given a starting point of two years and three months’ imprisonment. The Judge characterised Green as involving an unprovoked assault with three blows to the back of the complainant’s head. The Judge acknowledged that unlawful entry was not a factor. Nevertheless, the Judge adopted the same starting point of two years and three months’ imprisonment.

[10]   From that, the Judge deducted one month to take account of time spent on electronically monitored bail. He made a further deduction of four months to reflect Mr Bradley’s behaviour which amounted to provocation. He did not consider there

4      Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

5      Green v Police [2017] NZHC 2378; Judge Wharepouri, in error, cited the case as R v Green (1994) 11 CRNZ 641 (CA).

was genuine or real remorse which would require a discrete credit. Finally, the Judge applied a 25 percent discount for the guilty plea. That took the sentence to 16-and-a- half months’ imprisonment, which the Judge commuted to eight months’ home detention.

Basis of appeal

[11]   Ms Feyen for Mr Hobbs-Reynolds submits Judge Wharepouri erred in three respects. These are that the starting point was too high, credit should have been given for remorse, and credit should have been given for the time Mr Hobbs-Reynolds spent in custody on remand.

[12]I will address each of these in turn.

Starting point

[13]   Ms Feyen submits the Judge identified aggravating factors but did not evaluate their seriousness. The Court of Appeal in Nuku emphasised that the level of seriousness of aggravating factors affects where an offence is positioned within a band.6

[14]   Ms Feyen referred me to a number of cases where aggravating factors which Ms Feyen submits were greater than those present in this case resulted in lower starting points.7 I do not find them particularly helpful. I accept the Crown’s submission that the Court of Appeal has emphasised that when a guideline judgment exists, it is unhelpful to refer to a multitude of cases decided under the guideline judgment, all of which turn on their own facts.8

[15]   I do note that Ms Feyen submitted Judge Wharepouri understated the degree of violence present in Green. I agree. The case was not about an unprovoked assault with three blows to the back of the complainant’s head. It concerned an unprovoked

6 At [42].

7      Livett v R [2016] NZHC 2306; Bennett v R [2012] NZCA 173; Pokaia v Police [2015] NZHC 1718; Green v Police.

8      R v Taueki [2005] 3 NZLR 372 at [11]; recently emphasised in Kauvai v R [2017] NZCA 241 at [13].

attack where three blows were struck to the victim’s back and rear of his head. Justice Nation goes on to record:

[2]   … When the victim turned around, Mr Green punched him again.    With clenched fists, Mr Green punched the victim five more times in the face, and the victim fell to the ground.

[16]   Justice Nation upheld the District Court Judge’s starting point of two years three months’ imprisonment for this violence.

[17]   For my part, I have no doubt that the offending in the present case falls into band two of Nuku. The aggravating factors identified by Judge Wharepouri are clearly present. I also accept the Crown’s position that a fourth aggravating factor is the degree of harm done to Mr Bradley. By that, I do not mean the physical injuries, which were relatively minor and which are subsumed within the charge itself. The victim impact statement, to which the Judge does not refer, sets out in detail the ongoing emotional harm which Mr Bradley suffered and which led him to move to a gated complex with 24-hour security.

[18]Band two provides for a starting point of up to three years’ imprisonment.

[19]   On my evaluation, a starting point of two years’ imprisonment was appropriate. There was premeditation, there was a home invasion and there was violence. But the violence used resulted in relatively minor injuries. The combination of the home invasion and the injuries caused significant emotional harm to Mr Bradley. In these circumstances, I place this case above the halfway point of band two but not beyond two-thirds. Judge Wharepouri erred in placing reliance on Green, a case where the level of violence was significantly greater and was also inflicted in the victim’s home, although the offender was there by invitation.

Remorse

[20]   Ms Feyen referred me to an affidavit of Mr Hobbs-Reynolds dated 26 April 2018 in support of his appeal. Ms Max correctly points out there is nothing fresh or otherwise probative in the affidavit. However, Ms Max accepts the material in it was

put before Judge Wharepouri on sentencing in one form or another. On that basis, I will look at it for the sake of convenience.

[21]   Ms Feyen, in support of her submission that Judge Wharepouri should have allowed Mr Hobbs-Reynolds credit for remorse going beyond that implicit in his plea of guilty, points out that shortly after the assault Mr Hobbs-Reynolds went to the Henderson Police Station and told the Police what he had done. Mr Hobbs-Reynolds deposes he was told by the Henderson Police he should contact the Counties-Manukau Police. Mr Hobbs-Reynolds did that. He deposes that the reason he contacted the Police straight away is because he felt guilty. He says he immediately regretted his actions and was sorry about the assault. Consistent with that, he wanted to attend a restorative justice conference so he could apologise in person.

[22]   Ms Max submits that Judge Wharepouri was correct to say that although remorse was present, it was not so over and above the remorse implicit in the plea of guilty that greater credit should have been given.

[23]I note the following comments of the Supreme Court in Hessell v R:9

[64] … Remorse is not necessarily shown simply by pleading guilty. Sentencing judges are very much aware that remorse may well be no more than self-pity of an accused for his or her predicament and will properly be sceptical about unsubstantiated claims that an offender is genuinely remorseful. But a proper and robust evaluation of all the circumstances may demonstrate a defendant’s remorse. Where remorse is shown by the defendant in such a way, sentencing credit should properly be given separately from that for the plea.

[24]   In my view, Mr Hobbs-Reynolds’s actions in going to the Police voluntarily do demonstrate remorse and acceptance of responsibility for his criminal behaviour. He is entitled to credit for that demonstration. But, having given Police a full confession he was bound to plead guilty. He did not do that at the earliest opportunity because he was disputing the charge of threatening to kill.  Nevertheless, he received the full   25 percent discount available for his plea of guilty. Despite the full discount being given almost automatically by some Judges when pleas are entered, that is not the law. Pleas entered to an unassailable prosecution case should not attract the full discount.

9      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

Here, Mr Hobbs-Reynolds was fortunate to receive a 25 percent discount. I do not find Judge Wharepouri was in error in not giving a separate discount for remorse.

Discount for time on remand

[25]   Mr Hobbs-Reynolds was remanded in custody for approximately one month, from 24 November to 20 December 2017, whereupon he was released on electronically monitored bail which required him to be at the bail address 24 hours a day, seven days a week. At the time of sentencing, he had spent about three months on this restrictive electronically monitored bail.

[26]   Ms Max for the Crown submits that the one month allowance made by Judge Wharepouri was generous given that the time on remand and the period on electronically monitored bail were entirely Mr Hobbs-Reynolds’s responsibility. He was originally bailed on the charges arising from the incident in question. However, he then allegedly broke into an ex-partner’s house to confront her and accordingly he was charged with burglary. He was arrested because of this.

[27]   There is no rule about the level of discount that should be given for time spent on electronically monitored bail.10 It must, however, be taken into account, and the length of time spent on electronically monitored bail, the restrictiveness of the conditions and the defendant’s compliance with the conditions, are all relevant.11

[28]   Time spent in custody whilst on remand can be taken into account in the calculation of the period of home detention.12

[29]   Overall, given the circumstances, I am satisfied that the allowance of one month given by Judge Wharepouri was appropriate. In any event, any further discount for the time spent on remand would have been minimal given the length of the remand.

10     Rangi v R [2014] NZCA 524 at [10].

11     Sentencing Act 2002, ss 9(2)(h) and 9(3A).

12     R v Rose [2017] NZHC 1488 at [58]; Nicholson v Police [2016] NZHC 300 at [25]; Laloni v R

[2015] NZCA 55 at [9].

Discount for provocation

[30]   The four-month discount for provocation amounts to 15 percent of the starting point. Ms Feyen does not take issue with this. But, I must consider its appropriateness to determine whether the end sentence was within the range available to the Judge.

[31]   First, the provocation was indirect. Mr Bradley’s actions were aimed at his ex- partner, not Mr Hobbs-Reynolds. Second, Mr Hobbs-Reynolds’s actions can be seen as taking the law into his own hands. He was angry at the way his partner was being treated and he decided to take violent action to force Mr Bradley to take down the postings. He succeeded.

[32]   There was, perhaps, a time when Mr Hobbs-Reynolds’s actions would not only have been condoned but applauded. This is not such a time. It was appropriate for Judge Wharepouri to recognise that but for Mr Bradley’s provocative actions this offending would not have occurred, but the recognition should have been modest. I would allow no more than 5 percent.

[33]Given the above, I would structure the sentence this way: Starting point:  24 months’ imprisonment

Less:

Allowance for EM bail          1 month Allowance for provocation 1 month Guilty plea discount      6 months

EndSentence:  16 months’ imprisonment commuted to eight months’ home detention

[34]   It would be possible to add something for Mr Hobbs-Reynolds’s 2014 conviction, but on a totality basis I would not.

Decision

[35]   Sentencing is not a science. Different Judges can reach different end points. In each case, there is a range of sentences available and it is only if a sentence is outside the range that it may be characterised as manifestly inadequate or manifestly

excessive. In this case, I would put eight months’ home detention at the upper end of the range. However, it is within the range available and accordingly I do not find Judge Wharepouri was in error to impose it.

[36]The appeal is dismissed.

Brewer J