Hunter v Police

[2012] NZHC 107

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2011-463-000092 [2012] NZHC 107

ELLIOTT SHANE HUNTER

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         29 February 2012

Counsel:         S J Clarkson for the Appellant

N Tahana for the Respondent

Judgment:      29 February 2012

(ORAL) JUDGMENT OF DUFFY J

Counsel:     S J Clarkson P O Box 1737 Taupo for the Appellant

Solicitors:    Gordon Pilditch P O Box 740 Rotorua 3040 for the Respondent

HUNTER v POLICE HC ROT CRI-2011-463-000092 [29 February 2012]

[1]      The appellant, Mr Hunter, appeals against sentences totalling 16 months’

imprisonment.  He was sentenced, having pleaded guilty to charges of:

(i)       Wilful damage under s 11(1) of the Summary Offences Act

1981;

(ii)      Male assaults female under s 194B of the Crimes Act 1961; (iii)           Performing a threatening act under s 307 of the Crimes Act;

(iv)     Wilful trespass under ss 3, 4 and 11 of the Trespass Act 1980;

and

(v)      Two breaches of conditions of supervision under s 70(b) of the

Sentencing Act 2002.

Facts

[2]      Regarding the first three charges, the facts are as follows.  On 22 September

2011 at 10.00 pm, Mr Hunter arrived home grossly intoxicated.   His partner was asleep in the bedroom.   Mr Hunter entered the bedroom and began to rant that he was a Taupo gangster and he berated the victim for the absence of food in the house. He poured beer on the carpet.  He punched holes in the doors and walls of the house, while yelling at the victim.  He then spat in the victim’s face and wrote “ES", which identifies the East Side gang, on the walls numerous times.  The victim ran from the address to her mother’s house and then telephoned the Police.

[3]      Regarding the wilful trespass charge, on 9 August 2011, Mr Hunter was served with a trespass notice by the Police requiring him to stay off the property at Rawhiti Street, Taupo, which is occupied by the victim.  At approximately 12.13 am on 3 September 2011, Mr Hunter was on Rawhiti Street, Taupo.   He entered the property.  He said he wanted to see his partner, who came outside and left with him. These facts constitute the wilful trespass charge.   Mr Hunter’s explanation to the Police was that he believed the trespass notice had been lifted.

[4]      There are also breaches of conditions of supervision.

[5]      The  pre-sentence  report  shows  that  Mr  Hunter is  27  years  old,  has  two children, and he has been violent toward two of his partners.  He was employed in the forestry industry.  He has significant issues with alcohol and drugs.  He is said to be affiliated with the Mongrel Mob gang, although he has denied gang involvement. He has a gang tattoo and scrawled gang identifiers on the walls of his home on the night of the most recent offending.

[6]      In regards to the male assaults female charge,  Mr Hunter minimised his offending, stating that, unlike other prisoners sentenced for the same offence, all he did was to spit at his victim.   He made attempts to lay blame on the victim and showed no empathy.  When questioned as regards reparation, he said he would pay, but the report writer commented that Mr Hunter had evidently not given thought to the issue.

[7]      The key factors seen to be contributing to Mr Hunter’s offending were his propensity for violence, his use of drugs and alcohol, his relationship difficulties, and his offending-supportive “attitudes and entitlements”.   Mr Hunter advised the pre- sentence report writer that, for him, alcohol was “medicine for arguing” in the sense that it made an argument easier to deal with.  He was seen as being at a high risk of violent re-offending within a short period after release.

[8]      The current offending took place while he was serving a community-based sentence for drink driving.

[9]      Mr  Hunter  has  serious  prior  convictions  relating  to  dishonesty,  trespass, drugs, wilful damage, violence, and rape.   His conviction history for violence is extensive, and he has nine violence and/or sexual offending charges.

[10]     These factors influenced the District Court Judge to impose a sentence of

16 months’ imprisonment.  The Judge placed particular emphasis on the comments contained in the pre-sentence report concerning Mr Hunter’s history of violence towards women and his drink and drug problems.  The Judge took the male assaults

female and performing a threatening act charges as the lead offending; the Judge

fixed on a starting point of eight months’ imprisonment.  He then applied an uplift of

12 months in light of Mr Hunter’s previous “really significant” offending.   The Judge then discounted four months’ imprisonment in light of Mr Hunter’s early guilty plea, approximating a 20 per cent discount, bringing the end sentence to one of 16 months’ imprisonment.  On what the Judge described as the “minor charges”, which suggests the remaining charges, he sentenced Mr Hunter to two months’ imprisonment to be served concurrently with the other sentences.

Grounds of appeal

[11]     In the appeal, it was argued on behalf of Mr Hunter that there were the

following errors in the Judge’s reasoning:

(i)       The starting point of eight months’ imprisonment was too high

in the circumstances;

(ii)      The uplift of 12 months’ imprisonment was too great and led

to an excessive final sentence; and

(iii)     Mr Hunter’s early guilty plea did not attract sufficient credit.

Approach on appeal

[12]     I have been assisted in reaching a view on this appeal by the responsible attitude taken by the respondent.

[13]     The respondent conceded that an appropriate starting point here is one which incorporates the serious offending of male assaults female and performing a threatening act charges.  Eight months’ imprisonment was acknowledged to be the appropriate starting point.

[14]     The respondent attempted initially to support the uplift of 12 months in light of Mr Hunter’s previous offending, but later accepted that such an increase was excessive.

[15]     I consider that a 12 month uplift, when taken in relation to an eight month starting point, is clearly excessive.  It is important to strike the appropriate balance between paying due regard to serious criminal historical offending, whilst at the same time ensuring that the offender is not subject to the double jeopardy of being punished twice for that offending.  Accordingly, I consider that the appropriate uplift should have been no more than six months’ imprisonment.   That is less than the starting point,  but  high  enough  to  recognise  the serious  lack  of  good  character displayed by Mr Hunter’s criminal history.

[16]     Taking a starting point of eight months’ imprisonment with an uplift of six months to reflect criminal history, I next consider that the other offences, that is the wilful trespass and the two breaches of the supervision order, can be dealt with by a further  uplift  of  two  months’ imprisonment.    I  accept  that  the  breaches  of  the supervision order should be dealt with on a cumulative basis, but here, I consider that it is in accordance with the totality principle to include them in the equation.  On that basis, I would reach a point of 16 months’ imprisonment.

[17]     I consider that Mr Hunter, having pleaded guilty at the earliest opportunity, should be entitled to the full 25 per cent discount that is given to offenders in those circumstances.

[18]     I am not satisfied that there is exceptional remorse here, such that would qualify for recognition of a special discount, as was discussed in Hessell v R [2010] NZSC 135, [2011] NZLR 607.

[19]     The effect of the 25 per cent discount brings the sentence of imprisonment of

16 months’ imprisonment down to one of 12 months’ imprisonment.   I therefore grant the appeal and quash the sentence of 16 months’ imprisonment.  On the charge of male assaults female, Mr Hunter is sentenced to 12 months’ imprisonment.  On the charge of performing a threatening act, he is sentenced to 12 months’ imprisonment, to be served concurrently with the sentence for male assaults female. On the wilful damage charge, he is sentenced to two months’ imprisonment, to be served concurrently with the other charges.   On the remaining charges of wilful

trespass  and  breach  of  a  supervision  order,  he  is  sentenced  to  two  months’

imprisonment, also to be served concurrently with the other sentences.

[20]     The District Court Judge also ordered reparation in the sum of $3,896.41. There  has  been  no  appeal  against  the  making  of  the  reparation  order  and, accordingly, that stands.

Duffy J