Hunt v Police
[2019] NZHC 3373
•17 December 2019
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2019-441-000030
[2019] NZHC 3373
BETWEEN GARY PHILIP HUNT
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 5 November and 17 December 2019 Appearances:
Appellant in person
F E Cleary and C R Stuart for the Respondent
Judgment:
17 December 2019
JUDGMENT OF DOOGUE J
Introduction
[1] The appellant, Gary Philip Hunt appeals his conviction1 and sentence2 following a Judge-alone trial before Judge Rea in the District Court at Napier. Mr Hunt faced two separate charges of intimidation under s 21 of the Summary Offences Act 1981 (the Act). One charge was dismissed. Mr Hunt was convicted on the second.
[2] Mr Hunt now appeals his conviction on the basis that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred. He was fined the sum of $350.00 and ordered to pay Court costs of $130.00. He also appeals his sentence, saying it was manifestly excessive.
1 R v Hunt [2019] NZDC 13987 [Conviction decision].
2 R v Hunt [2019] NZDC 20989 [Sentencing decision]
HUNT v NEW ZEALAND POLICE [2019] NZHC 3373 [17 December 2019]
[3] This appeal was first heard on 5 November 2019. At that hearing, it became apparent that Mr Hunt was advancing trial counsel error as part of his conviction appeal. Accordingly, I considered it necessary to adjourn for two reasons. First, so that Mr Hunt could file an affidavit outlining his position on this point of appeal and allow the Crown to provide a response. And second, to afford Mr Hunt’s trial counsel the opportunity to file an affidavit in response in the interests of natural justice.
[4] Mr Hunt has since withdrawn trial counsel error as a ground of appeal. His appeal hearing resumed on this basis on 17 December 2019.
Background
[5] Mr Hunt and the victim in this matter, Ms Monique Richards, were known to each other before the proceeding now being appealed. Ms Richards is a courier driver and franchisee of a courier company, operating in a particular area of Napier in which both she and Mr Hunt lived. Over time, Ms Richards and Mr Hunt got to know each other well. At one stage, they discussed the idea of Mr Hunt purchasing the franchise from Ms Richards.
[6] Unfortunately, the relationship between Ms Richards and Mr Hunt eventually soured. The break down in the relationship was such that Ms Richards ultimately refused to pick up parcels from Mr Hunt who was a frequent user of her courier service.
[7] On 30 October 2018, Mr Hunt was served a trespass notice by the Police warning him to stay off the addresses at 4A, 4B and 4C Outram Street, Ahuriri, Napier for a period of 2 years. He was also warned to stay away from Ms Richards as she felt frightened and intimidated by his behaviour.
[8] At about 7:30 a.m. on Thursday 2 November 2018, Mr Hunt was on Coleman Terrace, Hospital Hill, Napier. Coleman Terrace is part of Ms Richards’ courier route. She drives along Coleman Terrace daily in her work vehicle. Mr Hunt was waiting along the route.
[9] As Ms Richards approached in her van, Mr Hunt walked towards her van waving a couple of parcels at her and said something like “why aren’t you picking up my parcels?” Ms Richards continued on without stopping. This gave rise to the first charge of intimidation.
[10] Ms Richards had to turn around to go back up Coleman Terrace to continue her run. She encountered Mr Hunt once again.
[11] At about 10:45 a.m. the same day, Mr Hunt went to Ms Richards’ home address and placed two parcels in her letterbox. This gave rise to the second charge of intimidation.
District Court decision on conviction
[12] The Judge dismissed the charge of intimidation dealing with the leaving of the parcels in Ms Richards’ letterbox, finding that the element of “loitering” had not been proven.
[13]The second charge on which Mr Hunt was convicted read:
Knowing that his conduct was likely to reasonably frighten Monique Richards confronted that person in a public place namely Coleman Terrace and Napier Terrace.
[14] The Judge’s discussion of what led him to conclude this charge had been proven beyond reasonable doubt was as follows:3
In the second charge the prosecution must also prove that the Defendant “confronted the Complainant”. In Gillespie-Gray v Police Asher J also considered the meaning of “confronts”. He stated, referring to the ordinary meaning of the word, that what was involved was a face to face meeting, either between persons who are stationary or moving, which has an element of disagreement or hostility about it.
[15] The Judge’s conclusions on Mr Hunt’s guilt therefore depended on whose version of events was better supported by the evidence — Ms Richards’ or Mr Hunt’s.
3 Conviction decision, above n 1, at [17] (footnotes omitted).
[16] Having rejected Mr Hunt’s version of events the Judge concluded that Mr Hunt had deliberately placed himself on Coleman Terrace at the time he knew Ms Richards would be there, that his waving the parcels at Ms Richards did amount to a confrontation, and that he did know Ms Richards would be reasonably frightened by his conduct.4 In doing so, the Judge took into account the past encounters between Ms Richards and Mr Hunt in order to establish whether Mr Hunt knew the encounter was likely to cause Ms Richards to be reasonably frightened,5 and also to establish whether it amounted to a confrontation or just a coincidental meeting.6
District Court decision on sentence
[17]Mr Hunt was sentenced on 7 August 2019 and ordered to pay the sum of
$530.00, details of which are set out in the table below:
Reparation
$0.00
Fine
$350.00
Offender Levy
$50.00
Court costs
$130.00
Other costs
$0.00
Total
$530.00
[18] The Judge briefly repeated the version of events he found more likely to have occurred and on which Mr Hunt’s conviction was based.
Approach on appeal
[19] Mr Hunt appeals both his conviction and his sentence under ss 229 and 244 respectively of the Criminal Procedure Act 2011.
[20] The Court must allow Mr Hunt’s conviction appeal if it is satisfied that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of
4 At [20].
5 At [14].
6 At [18].
justice has occurred, or if a miscarriage of justice has occurred for any reason.7 A miscarriage of justice is defined as an error, irregularity, or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.8
[21] An appeal against conviction proceeds by way of rehearing.9 If an appellate court comes to a different view on the evidence, the trial Judge necessarily will have erred and the appeal must be allowed.10 However, the appellant must show that an error has been made.11 Further, the appellate court must remember the advantages a trial Judge has especially where the challenge is to credibility findings based on contested oral evidence.12
[22] In respect of Mr Hunt’s sentence appeal, the Court must allow the appeal if satisfied that, for any reason, there is an error in the sentence imposed on conviction and that a different sentence should be imposed.13
[23] A sentence appeal is an appeal against a discretion and only if the sentence is manifestly excessive or contains an error in principle should the appellate court re- exercise the discretion. An error of principle includes an error of fact or law, failing to take into account a relevant consideration, or if the decision was plainly wrong.14 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.15
The conviction appeal
[24] Mr Hunt’s grounds of appeal were initially fairly difficult to discern. This is because he filed annotations to the transcript of legal discussions between the Judge, his trial counsel and the Police prosecutor. However, he has since filed more concise submissions.
7 Criminal Procedure Act 2011, s 232(2)(b)-(c).
8 Section 234(4).
9 Sena v Police [2019] NZSC 55 at [32].
10 At [38].
11 At [38].
12 At [38].
13 Criminal Procedure Act 2011, s 250(2).
14 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 481 at [30]–[35].
15 Ripia v R [2011] NZCA 101 at [15].
[25] Accordingly, Mr Hunt raises the following grounds of appeal in support of his general assertion that a miscarriage of justice has occurred:
(a)the Judge erred in his assessment of the evidence in that as a matter of law, the evidence did not support a finding that there had been a confrontation between Mr Hunt and Ms Richards on 2 November 2018; and
(b)The Judge erred in:
(i)making factual findings and inferences that were improper; and
(ii)accepting Ms Richards’ evidence given it was unreliable.
[26]I address these grounds in turn.
Judge’s assessment of the evidence
[27] Given the recent re-examination undertaken by the Supreme Court in Sena v Police in respect of the proper approach to take in assessing evidence for the purpose of a conviction appeal, I must consider the evidence afresh.16
[28] I consider the evidence in light of the elements in s 21 of the Act, which provides:
21 Intimidation
(1)Every person commits an offence who, with intent to frighten or intimidate any other person, or knowing that his or her conduct is likely to cause that other person reasonably to be frightened or intimidated,—
(a)Threatens to injure that other person or any member of his or her family, or to damage any of that person's property; or
(b)Follows that other person; or
(c)Hides any property owned or used by that other person or deprives that person of, or hinders that person in the use of, that property; or
16 Sena v Police, above n 9, at [32].
(d)Watches or loiters near the house or other place, or the approach to the house or other place, where that other person lives, or works, or carries on business, or happens to be; or
(e)Stops, confronts, or accosts that other person in any public place.
(2)Every person commits an offence who forcibly hinders or prevents any person from working at or exercising any lawful trade, business, or occupation.
(3)Every person who commits an offence against this section is liable to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000.
[29] It is s 21(1)(e) that was applicable in this case. As referenced in the Judge’s decision on conviction, two cases of this Court provide some assistance. In Gillespie- Gray v Police, Asher J confirmed that the necessary elements in proving a charge under s 21(1)(e) “are the act of confrontation and the necessary mental element of knowledge of likely intimidation. Actual fear in the Complainant does not have to be established.”17 Further, the mental element of the charge is subjective.18 In respect of the confrontation itself, Asher J held “involved is a face to face meeting, either between persons who are stationary or moving, which has an element of disagreement or hostility.”19
[30] Whether a person knows their conduct is “likely” to cause fright or intimidation was considered by Edwards J in Green v Police.20 The Judge in that case stated (footnotes omitted):21
For the defendant to think this result "likely", he or she must consider there is a real or substantial risk of that result, not merely a remote possibility. That is, the defendant must anticipate a feeling affright or intimidation which would be a reasonable response to the conduct in question. A court can infer such knowledge from the defendant's conduct.
[31] Therefore, the essential elements the prosecution need to prove in the present case were that:
17 Gillespie-Gray v Police HC Auckland CRI-2006-404-123, 22 September 2006 at [10].
18 At [9].
19 At [9].
20 Green v Police [2017] NZHC 1551.
21 At [58].
(a)Mr Hunt either intended to frighten or intimidate Ms Richards or knew that his conduct was likely to cause Ms Richards to be intimidated or frightened; and
(b)Mr Hunt stopped, confronted or accosted Ms Richards in a public place.
[32] Turning first to the second of the elements above, it is common ground that Mr Hunt and Ms Richards encountered each other on Coleman Terrace on the morning of 2 November 2017. Ms Richards’ evidence was that Mr Hunt confronted her; Mr Hunt’s evidence was that the encounter was coincidental.
[33] Ms Richards gave evidence to the effect that Mr Hunt was well aware of her routine due to the fact she frequently picked up parcels from his house and he had joined her on her courier run on a number of occasions after he had expressed a desire to buy the franchise. Ms Richards stated the following:
Q. Did Mr Hunt come to your address on any other occasions?
A. Yes, he would turn up pretty much – because he knew my routine quite well, I would sometimes come home during the day and basically within a minute’s time he would be up my driveway and I found that quite strange because obviously he must have been watching and seeing when I was coming home and he did quite often.
[34] Ms Richards’ evidence was also that Mr Hunt knew her courier run well, stating:
A. ... because he knew my routine quite well on the hill I would be delivering and obviously picking up on the hill in particular and I would see him at least three times a day and he would be running out in front of my van and trying to hand me these parcels still.
...
Q.Were you regular to Coleman Terrace and those streets, is that a regular part of your run?
A. Every morning, yep.
[35] Further, Ms Richards said that the encounter with Mr Hunt occurred after he had been issued with a trespass notice and she made it clear she wished to stop communicating with him. The encounter therefore made her feel “anxious”. In re-
examination, Ms Richards clarified that by anxious, she meant “not feeling comfortable, feeling I guess a little bit weary of that person, probably a little bit unsafe.”
[36] Further, in cross-examination, Ms Richards described the encounter with Mr Hunt as follows:
Q. And having obviously seen your van approach, he’s waved out to you with a parcel, hasn’t he? Like that.
A. He’s run in front of me and while I was driving with the parcels in his hands.
Q.Well if he’d had run in front of you while you were driving, you’d have run him over, wouldn’t you?
A. Well I could have done, there is many a times when he had run out in front of me which was quite dangerous.
Q. You didn’t run him over on this occasion, did you?
A. No I did not.
Q. And you didn’t stop?
A. I slowed down obviously.
[37] Mr Hunt’s evidence was that he did not know Ms Richards’ route as well as she had asserted:
Q. So you knew that she actually went up on the hill and what streets she went into, didn’t you?
A. Well, it could be different every day. For the six weeks that I actually drove with her, she only went down Coleman Terrace about three times in that six weeks. So to say in her statement that she goes down that road daily, she goes down Napier Terrace daily, that’s not down Coleman Terrace and that was just random that I happened to see her that day.
[38] It was Mr Hunt’s evidence that he was walking that route because he was going to the supermarket to buy a drink. Questioned by the Judge on why he was intent on buying the drink from the supermarket (which was some 25 kilometres away) as opposed to a service station, Mr Hunt replied that it was cheaper at the supermarket and that he always buys based on price.
[39]In describing the encounter on Coleman Terrace, Mr Hunt said the following:
Q. Now, in waving the parcel that you had in your hand to the complainant, drawing her attention on Coleman Terrace, what were your intentions?
A.For her to stop and I’d hand her the parcel like she did the week before. I was actually walked out into Battery Road I saw her coming, ‘cos from my window I can see when her van leaves and her house and so I saw her leave and I thought, oh, well I’ll go out and see, I knew she was in a bad mood with me...
[40] The Judge was persuaded by Ms Richards’ evidence that the encounter between her and Mr Hunt was not coincidental and instead, was satisfied it amounted to a face- to-face meeting which has an element of disagreement or hostility.
[41] Whether or not the encounter was coincidental is immaterial. It is the nature of the encounter which matters for the purposes of s 21(1)(e) of the Act. In this regard, I agree with the Judge that the encounter on Coleman Terrace between Mr Hunt and Ms Richards where Mr Hunt waived his parcel at Ms Richards in the middle of the road can be properly characterised as a confrontation. This is so because it followed a breakdown in their relationship, Ms Richards’ refusal to accept Mr Hunt’s parcels which he knew of, and Mr Hunt being issued with a trespass notice. These factors, in turn, gave the encounter the element of disagreement or hostility required under s 21(1)(e).
[42] Turning then to the question of whether Mr Hunt knew that his conduct was likely to cause Ms Richards to be intimidated or frightened, I first note that whether Ms Richards was actually frightened or intimidated is irrelevant. I note this because at trial, Mr Hunt’s counsel attempted to distinguish between Ms Richards’ feelings towards the encounter at the time it occurred, and then with the benefit of hindsight after she discovered Mr Hunt had left the parcel on her porch later that day.
[43] As already mentioned, Mr Hunt had been served with a trespass notice only three days prior to the confrontation on Coleman Terrace. However, he also knew that Ms Richards was not accepting his parcels in the same way she used to. In cross- examination, Mr Hunt said the following which shows he was aware of her feelings:
A. When the police came around and issued me a trespass notice, I was already going to go and speak to [the Regional Manager] because I’d worked, you know, in the branch, I knew all the staff and that, and the regional manager, I’d met and I asked him could we have a meeting to nut this out so that Monique would no longer be feeling frightened and he told me he would ask Monique, he didn’t say, “It’s not going to happen”.
[44]Further, Mr Hunt accepted the following when questioned by the Judge:
Q. So did you think she was frightened?
A.I thought that she was acting, she was making this assumptions about me and acting on those assumptions, those assumptions were incorrect.
[45] Mr Hunt repeated the fact he believed Ms Richards was basing her views on misconceptions and assumptions in his annotations to the Judge’s decision on conviction.
[46] I also note that in his annotations to both the Judge’s decision on conviction and the transcript of legal discussions on the day of his judge-alone trial, Mr Hunt reiterates that he was persistent in trying to get Ms Richards to pick up and deliver his parcels because it was his “legal right”. Further, Mr Hunt was motivated to use Ms Richards’ courier service, despite the break down in their relationship, because it was apparently the cheapest one in Napier.
[47] Having read the evidence presented in the District Court, I agree with the Judge’s observation that the confrontation must be:22
...viewed from the point of view [Mr Hunt] was aware [Ms Richards] wanted nothing further to do with him and did not want to continue as his courier driver and that by his actions he was endeavouring to override what he knew her position to be.
[48] Mr Hunt’s response to the Judge’s question as to whether he thought Ms Richards was frightened, in combination with him being served a trespass notice and Ms Richards seeking to stop all engagement with him, satisfy me that he had the requisite subjective knowledge that his conduct on 2 November 2018 was likely to
22 Conviction decision, above n 1, at [14].
cause Ms Richards to be intimidated or frightened. It is not fatal to a charge under s 21 that Mr Hunt did not intend to frighten or intimidate Ms Richards.
[49] Therefore, I am satisfied there was sufficient evidence to conclude beyond reasonable doubt that Mr Hunt intimidated Ms Richards for the purposes of s 21 of the Act. Accordingly, I reject Mr Hunt’s submission that the Judge mischaracterised the evidence to such an extent that a miscarriage of justice occurred.
Judges’ acceptance and use of the evidence
[50] I briefly address two further errors of fact or of law Mr Hunt says the Judge made in convicting him.
[51] The first is in respect of the Judge’s preference for Ms Richards’ evidence over his own. With respect, this was the Judge’s role. In a judge-alone criminal proceeding, the Judge must be satisfied the prosecution has proved the charges beyond a reasonable doubt. Where the defendant pleads not guilty as in Mr Hunt’s case, he or she denies the alleged offending and the Judge must necessarily decide which evidence to accept and which to reject. It is not an error of fact or of law if the Judge rejects the defendant’s version of events in favour of other evidence. Nor is it an error if the Judge accepts evidence despite inconsistencies. This will always occur after the Judge has heard and considered all the evidence.
[52] Similarly, it is not an error if the Judge makes proper inferences based on the accepted version of events. In my view, Mr Hunt’s appeal in this regard is based not on the inferences themselves, which as discussed are proper, but rather with evidence on which those inferences were based being predominantly Ms Richards’ version of events. As such, the Judge did not err in either preferring Ms Richards’ evidence or in the inferences he made based on that evidence.
[53] In a similar vein, Mr Hunt asserts, on a number of occasions, that the Judge relied on “unsubstantiated” evidence. Insofar as he is asserting that the Judge accepted incredible evidence because Ms Richards was being untruthful in her testimony, I note that the Judge’s preference for Ms Richards’ evidence is confirmation that he found her evidence to be credible. In Matenga v R, the Supreme Court observed that in
considering a conviction appeal, the appeal court “must of course take full account of the disadvantage it may well have in making an assessment of the honesty and reliability of witnesses on the sole basis of the transcript of the oral evidence.”23 Appellate courts have repeatedly held that courts must be mindful of a trial Judge’s advantage in having seen and heard the witnesses give evidence, and being able to assess their reliability and credibility as a result.24 Without some good reason to depart from the Judge’s factual findings concerning credibility of witnesses, this Court should be slow to disturb such findings.25
[54] I am satisfied that a sufficient factual foundation existed to conclude beyond a reasonable doubt that Mr Hunt committed the alleged offending.
Miscarriage for any other reason?
[55] In his initial submissions prior to the hearing on 5 November 2019, Mr Hunt submitted that the Judge displayed bias in accepting “prejudicial evidence” against him. In particular, he submitted that the Judge had the benefit of seeing the police summary of facts, Ms Richards’ statement to the police as well as the statement of the Officer in Charge, but did not accept any written material from the defence during the trial. The Crown submitted there is no appearance of bias by the Judge; he appropriately took all matters into account in his decision.
[56] This ground of appeal was not advanced in Mr Hunt’s more concise submissions in advance of the second hearing date on 17 December 2019. For completeness, however, I deal with it briefly.
[57] The relevant principles for establishing bias — which is a high standard to establish — were outlined by the Supreme Court in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd.26 Apparent bias will be established if a fair-minded and properly-informed lay observer might reasonably apprehend that the Judge might not
23 Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [32].
24 For example, see R v Munro [2007] NZCA 510, [2008] 2 NZLR 87 at [83]–[84]; Sullivan v Police HC Auckland CRI-2008-404-152, 2 October 2008 at [30]; Tafunaina v Police [2015] NZHC 2144 at [15]; Ross v Police [2016] NZHC 2886 at [14]; and Church v Police [2019] NZHC 38 at [44].
25 Palmer v New Zealand Police [2016] NZHC 2633 at [16], citing Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5].
26 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35.
bring an impartial mind to the resolution of the question which the Judge is to decide.27 This involves a two-stage inquiry:28
(a)first, the Court must identify the circumstances that may lead the Judge to decide a case other than on its merits; and
(b)second, the party alleging apparent bias must also articulate a logical connection between the matter complained of and the feared deviation from impartiality.
[58] It appears Mr Hunt’s basis for alleging bias is again that the Judge preferred Ms Richards’ evidence to his own. I therefore do not consider the Judge’s conduct to have reached the high standard to establish bias. Clearly, the Judge had to prefer either Mr Hunt’s evidence or Ms Richards’, which he did in a reasoned manner in his decision on conviction.
[59] Further, insofar as the Judge heard “prejudicial” or “irrelevant” evidence, acceptance or rejection of that evidence is governed by ss 7 and 8 of the Evidence Act 2006. The judicial role is such that Judges constantly apply these provisions. There is no evidence before me to suggest Mr Hunt, or his trial counsel, sought to argue prejudice or irrelevance at trial. Unless there is some evidence to suggest otherwise, I am entirely satisfied the Judge bore those provisions in mind in coming to his decision. This is particularly so given the Judge focused only on the evidence relating to the core elements of the charge, despite the amount of irrelevant evidence led at trial.
[60] I therefore see no other indication of a miscarriage of justice having occurred in this case. Accordingly, Mr Hunt’s appeal against conviction is dismissed.
The sentence appeal
[61] Mr Hunt’s appeal against sentence is based on an assertion the Judge made an error in fact and in law in imposing a fine of $350.00. However, he has not advanced
27 At [3].
28 At [4], [20] and [86].
any particular grounds in support of this appeal. While this is not fatal to a conviction appeal given it proceeds by way of rehearing, it is necessary for an appellant to point to an error in the sentencing Judge’s decision as it is an exercise of discretion.
[62] Nevertheless, I consider whether Mr Hunt’s sentence was manifestly excessive below.
[63] The Judge’s sentencing notes are brief. It is clear that although the Judge did not consider the charge to be “particularly serious”, he noted that several factors did elevate its seriousness in the circumstances.29 These were that Mr Hunt had become obsessed with wanting Ms Richards to be his courier driver and went to great lengths to achieve this. The Judge described this behaviour as “tantamount to stalking”.30 In light of this, the Judge imposed a fine of $350.00 and ordered that Mr Hunt pay costs of $130.00.
[64] Despite the brevity of the Judge’s sentencing notes, the focus is on the final sentence rather than the exact process by which it was reached. In this regard, I note that neither Mr Hunt nor the Crown have referred me to relevant case law on s 21 of the Act. I therefore briefly discuss the cases referred to in the Judge’s sentencing notes in addition to two other cases of this Court that I have found to be of assistance.
[65] In Gillespie-Gray v Police, the appellant was convicted of two charges of intimidation under s 21(1)(e) of the Act. While protesting against the sale of animal fur outside an Auckland store, the appellant, along with two co-offenders, accompanied the shop keepers to their cars and confronted them. The three protestors refused to keep their distance despite being asked by the complainants to not touch them, often coming as close as 30 centimetres from their faces. While Asher J adjourned the appeal against sentence as the appellant sought to adduce further evidence, that hearing does not seem to have gone ahead. Therefore, the final sentence was a fine of $250 for each charge.
29 Sentencing decision, above n 2, at [1].
30 At [2].
[66] In Green v Police, the appellant was convicted of one charge of intimidation under s 21(1)(a), that is for threatening to injure another person. The appellant had stood trial on a common assault charge when, at the end of the day’s hearing as he was getting into his car, he said “you’re fuckin’ dead” to the Officer in Charge. At the time, the appellant was on bail for the common assault charge and the person to whom the threat was directed was a constable acting in the course of his duty. These were seen as aggravating factors of the offending. The appellant was sentenced to 100 hours’ community service, which was reduced on appeal to 40 hours given his sentence for the common assault charge was 80 hours’ community service.
[67] I note two further cases involving charges under s 21(1)(e) of the Act. In Farquhar v Police, the appellant confronted the prosecutor who had represented the Crown at his jury trial where he had been found guilty.31 The confrontation occurred in central Dunedin once the appellant had been released from prison. The appellant yelled homophobic slurs at the prosecutor and swore at him multiple times. The appellant was found guilty of intimidation following a defended hearing. The trial Judge declined the appellant’s application for a discharge without conviction and instead convicted him and imposed a non-association order for a period of 12 months. The appellant did not appeal the sentence, only the conviction. However, Lang J commented that the sentence suggested the trial Judge viewed the appellant’s “conduct at the lower end of the range in terms of seriousness”.32
[68] Finally, Tumarae v Police concerned an appeal against a sentence of 250 hours’ community service for intimidation at a Work and Income New Zealand (WINZ) office in Napier.33 The appellant in that case was asked by the office manager to remove his hood and reacted aggressively, swearing and rushing and lunging at her. In addition, the appellant made reference to the fatal shooting of two staff members at a WINZ office in Ashburton which had occurred the previous day, intimating that he ought to replicate that shooting. In dismissing the appeal, Andrews J noted that the appellant could have “expected the Judge to adopt a significantly higher starting point to reflect the particular circumstances of his offending, and [the appellant’s] negative
31 Farquhar v Police HC Dunedin CRI-2011-412-000001, 8 April 2011.
32 At [27].
33 Tumarae v Police [2015] NZHC 1477.
personal background factors would have justified a significant uplift.”34 Andrews J also noted that while the “end sentence was undoubtedly stern, and I accept it is at, or near, the top of the range that is available for this sort of offending”, it was not manifestly excessive in the circumstances.35
Discussion
[69] It is evident that sentencing for offending contrary to s 21(1) of the Act is wide- ranging. As evidenced by Farquhar, relatively aggressive behaviour has resulted in non-association orders only while one-off instances of aggression such as in Green have resulted in community service. In my view, the cases to which I have referred must be confined to their facts. While the sentence in Farquhar appears lenient, it followed a dismissed application for a discharge without conviction. It is likely the Judge considered a conviction in itself was a sufficient response. Similarly, Tumarae involved a unique instance of aggression and an offender with an extensive history of aggressive behaviour, warranting a sterner sentence. Further, the offending in Gillespie-Gray could be said to be more threatening (though not necessarily more aggressive) than in Green, but it is the aggravating factors in the latter that explain the more onerous end sentence.
[70] In my view, the case which provides the most assistance is Gillespie-Gray. While I accept the offending in Gillespie-Gray was also more threatening than in Mr Hunt’s case, I agree with the Judge that Mr Hunt’s obsession with Ms Richards, particularly in light of being served with a trespass notice, elevated the seriousness of his offending. Therefore, the final sentence of $350.00 was not outside the available range.
[71]Accordingly, Mr Hunt’s sentence was not manifestly excessive.
34 At [20].
35 At [20].
Result
[72]The appeal against conviction is dismissed.
[73]The appeal against sentence is dismissed.
Doogue J
Solicitors:
Crown Solicitor, Napier
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