Huntley v The King
[2023] NZHC 3236
•16 November 2023
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE
CRI-2023-476-13
CRI-2023-476-14 [2023] NZHC 3236
BETWEEN CONNOR JAMIE HUNTLEY
Appellant
AND
THE KING
Respondent
Hearing: 15 November 2023 Appearances:
M L Bonniface for Applicant N Girgis for Respondent
Judgment:
16 November 2023
ORAL JUDGMENT OF EATON J
This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
HUNTLEY v R [2023] NZHC 3236 [16 November 2023]
Introduction
[1] Connor Huntley pleaded guilty to charges of aggravated robbery,1 demanding with intent to steal,2 conspiracy to deal a class A controlled drug,3 offering to supply a class A drug (x 2),4 unlawful possession of a firearm,5 unlawful possession of ammunition (x 2),6 and failing to carry out obligations in relation to a computer search.7 On 19 July 2023, Judge Robinson sentenced Mr Huntley to two years and three months’ imprisonment.8
[2] Mr Huntley appeals his sentence on the grounds that insufficient credit was allowed for personal circumstances. In the event a short-term sentence was to be imposed on appeal, he seeks that sentence be commuted to one of home detention.
Facts
[3] On 15 October 2021, police began intercepting Mr Huntley’s private communications pursuant to a surveillance device warrant. On 30 July 2021, a co-defendant texted Mr Huntley seeking to buy methamphetamine. Mr Huntley advised that he could do a “Q” for $150. On 5 October 2021, Mr Huntley called the co-defendant and offered to sell her one gram of methamphetamine for $350. During the same phone call, he asked her if she knew anyone that would buy methamphetamine from him. She suggested three people who may want to buy.
[4] On 21 October 2021, Mr Huntley sent the victim of the violent offending a text message advising him to come to the address he was at. When the victim arrived, Mr Huntley charged at the victim and put a knife to his stomach. Mr Huntley demanded the victim give him all his money and his phone. The victim gave him
$240, ran to his vehicle and left the address. Mr Huntley texted him “I’m billing you
1 Crimes Act 1961, s 235(c): maximum penalty 14 years’ imprisonment.
2 Section 239(2): maximum penalty seven years’ imprisonment.
3 Misuse of Drugs Act 1975, s 6(2A): maximum penalty 14 years’ imprisonment.
4 Section 6(1)(c) and (2): maximum penalty life imprisonment.
5 Arms Act 1983, s 45(1)(b): maximum penalty four years’ imprisonment and a $5,000 fine.
6 Section 45(1)(b): maximum penalty four years’ imprisonment and a $5,000 fine.
7 Search and Surveillance Act 2012, s 178: maximum penalty three months’ imprisonment.
8 R v Huntley [2023] NZDC 15410.
$600 for wasting my time with all the texting then your not keen. Don’t make me collect on your lunch break, fag.” He then sent a follow-up message sending his bank account and said “$150 before 5pm tomorrow and you have a month to pay the remainder. YOFUCKYO.” The victim replied stating that he had given him the money and that Mr Huntley would not hear from him again. Mr Huntley replied “I’m gonna show up at your work g and I have your number plate.” After the victim replied apologising for upsetting Mr Huntley, he replied “I make the rules not you dickhead you got billed now pay up before I come collect.”
[5] On 30 October 2021, Mr Huntley was driving a vehicle when stopped by police. A search of the vehicle revealed a cut-down bolt-action .223 rifle. Mr Huntley was searched, and police found one shotgun shell in his right pants pocket and two rounds of .223 ammunition in his left pants pocket. About an hour later, he refused to give his PIN to his cellphone to the constable who was acting under the Search and Surveillance Act 2012.
District Court decision
[6] Judge Robinson adopted a starting point of three years’ imprisonment for the aggravated robbery charge, observing that it was more serious that a street robbery because Mr Huntley led the victim to his home, and although it was not particularly sophisticated, the Judge considered it to be premeditated. He described the continuing threats made to the victim as compounding the seriousness of the robbery.
[7] The Judge considered the quantities involved in the methamphetamine offending were limited and considered the charges would have warranted a community-based sentence if they were before the Court on their own. The Judge marked this offending by uplifting the starting point by one month.
[8] The Judge described the firearms offending as particularly serious. He observed that the firearm was cutdown allowing it to be easily concealed, and that ammunition was close at hand. He said Mr Huntley’s acknowledgement to police that he carried the firearm for protection evidenced a conscious decision to have resort to that weapon. The Judge referred to “a gang environment” and drug offending as the
context relevant to the firearms offence. The Judge determined that an uplift of 12 months’ imprisonment was appropriate for that offending.9
[9] The Judge then described the failing to comply with search obligations as a conscious decision to impede an investigation.
[10] With reference to the totality principle, Judge Robinson reduced a starting point of four years and two months’ imprisonment to three years and ten months.
[11] In considering the credit for the guilty pleas, the Judge said “the Crown could be a little bit generous in saying 15 per cent but I am going to go with that.” The guilty pleas had been entered about 10 days before a nominal trial date.
[12]In relation to Mr Huntley’s personal background, the Judge said:
[49] I have regard to your personal background. I hate to say it, it is not the worst I have seen, and I need to be consistent with the authorities. I think a reduction of 15 per cent is appropriate for that.
[13] The Judge allowed a five per cent deduction for Mr Huntley’s rehabilitative potential and a further five per cent for his youth and the difficulties he would face in a custodial environment.
[14] A global deduction of 40 per cent from a starting point of 46 months led to an end sentence of 27.6 months. The Judge then considered time spent on electronically monitored (EM) bail and said, “I think that I can probably afford a further month for the time spent on electronically monitored bail” and “[i]f I round that down in your favour to 27 months, I think that adequately addresses the time spent on electronically monitored bail”. He noted that in discounting for the difficulties Mr Huntley would face in custody, he also had in mind trying to reflect some of the restrictions that had been placed on him already.
9 Citing R v Lorigan [2012] NZHC 2249; Joyce v R [2020] NZCA 124 at [8] and [24]; R v Faifua
CA287/05, 27 March 2006; and R v Campbell [2022] NZCA 579 at [18].
Principles on appeal
[15] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.10 While this Court must form its own opinion as to the merits of the issue under appeal, the appellant will still bear the onus of persuading the appellate Court to reach a different conclusion.11
[16] It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.12
Submissions
Appellant’s submissions
[17] Mr Bonniface, for Mr Huntley, abandoned a ground of appeal that the starting point adopted by the District Court Judge was outside of the permissible range. He confined his submissions to the discounts applied and to the end sentence in the event that a short-term sentence was imposed on appeal. He submits that Mr Huntley’s background alone justified a discount of 15 per cent and that the discount allowed did not account for Mr Huntley’s serious methamphetamine addiction. He submits addiction is the consistent contributor to all of Mr Huntley’s offending. Mr Bonniface proposed an additional 10 per cent deduction should be allowed to reflect Mr Huntley’s addiction.
[18] Mr Bonniface submits that while a total discount of 25 per cent for personal factors and addiction would be seen as lenient or generous, he says that is still within the available range. He submits the Judge erred in not placing greater weight on the sentencing purposes of rehabilitation and reintegration. He submits that home
10 Criminal Procedure Act 2011, s 250(2) and 250(3).
11 Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [30].
12 Ripia v R [2011] NZCA 101 at [15].
detention would be the least restrictive sentence the Judge could have imposed. He submits that such a sentence would have enabled Mr Huntley to attend a residential rehabilitation programme. He highlights that, in reality, Mr Huntley will not be offered any rehabilitative programme within the prison given the length of time he has now been in custody.
[19] Finally, Mr Bonniface submits that the credit allowed for time spent on EM bail was in fact 18 days and not the one month as indicated by the Judge. Mr Bonniface says that should be corrected on appeal.
Respondent’s submissions
[20] Ms Girgis, for the Crown, submits the Judge adopted an appropriate starting point, appropriately took into account Mr Huntley’s personal circumstances and adequately weighed the principles of the Sentencing Act 2002. She submits the 15 per cent allowance for personal factors was within the available range and argues it cannot be said the Judge applied insufficient weight to those personal factors or was wrong in principle. She notes the Judge made express reference to both the s 27 and the alcohol and drug reports. Ms Girgis contends that the allowance for rehabilitative potential, youth and the difficulties Mr Huntley would face in prison are relevant in assessing whether the Judge adequately addressed the issues of rehabilitation and reintegration. Ms Girgis submits the Court must exercise care in allowing discounts that might be seen as being designed to bring a sentence within a range where home detention can be considered.
Analysis
Personal considerations
[21] The Judge allowed a 15 per cent deduction for Mr Huntley’s personal circumstances. The circumstances themselves were detailed in both the s 27 report and the alcohol and drug report. Both reports referred extensively to Mr Huntley’s addiction.
[22] The s 27 report identified the operative or proximate features that caused the offending as being methamphetamine addiction, gang affiliation and propensity for violence, and childhood abuse trauma, and the causative contributions to the offending being family dysfunction and abandonment trauma and antisocial attitudes. The Judge, appropriately in my view, accepted that Mr Huntley came before the Court with numerous disadvantages.
[23] The Judge recorded the s 27 report addresses Mr Huntley’s early exposure to regular abuse at home leading to an anti-authority attitude and ultimately to him descending into drug abuse, with Mr Huntley needing to do the bidding of gangs. The Judge summarised the s 27 report as confirming Mr Huntley’s background and upbringing causatively contributed to his offending.
[24] The alcohol and drug report described Mr Huntley as having a relationship with alcohol from the age of 12 years and that he had started taking methamphetamine at age 18. The report writer concluded that Mr Huntley has a genetic predisposition to alcohol and substance abuse, which was caused by his poor domestic circumstances, parental separation, alcohol abuse and sexual violence. The report records Mr Huntley’s desire to engage in rehabilitative treatment.
[25] I am quite satisfied, from that review of the reports and the sentencing notes, that the Judge did have regard to Mr Huntley’s methamphetamine addiction as being a significant feature of his background and as being causative of his offending. I do not accept that in fixing the deduction for personal circumstances the Judge failed to have regard to that factor.
[26] That leads to Mr Bonniface’s second argument. He submits the 15 per cent discount to reflect background factors, if it included addiction, was inadequate. As Ms Girgis has highlighted, in Berkland v R, the Supreme Court considered a discount of 10 per cent was appropriate for both personal factors and addiction issues where the defendant’s background included “multiple criminogenic risk factors” and his drug and alcohol abuse was “a primary coping strategy … from an early stage”.13
13 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [156]–[157] and [162].
[27] I acknowledge that Mr Huntley has been significantly disadvantaged in his past and that the challenges he has been forced to confront have played a causative role in his offending. I accept that Mr Huntley’s personal background is inextricably tied to his methamphetamine addiction.
[28] In assessing the level of credit that the Judge allowed, I cannot ignore that the Judge also allowed a further 10 per cent deduction to reflect his youth, notwithstanding Mr Huntley being on the outside of the recognised category of credit for youth offending, and for rehabilitation. While I accept that another Judge may have considered it appropriate to allow a greater deduction to reflect personal background and addiction, I am not persuaded by reference to the reports presented to the Judge and by the authorities referred to by counsel that the 15 per cent discount was outside of the permissible range.
EM bail
[29] Mr Huntley was on EM bail for a period of just over two and a half months. He was then arrested, having breached his bail conditions by leaving his approved address and destroying his tracker.
[30] It is unclear whether the Judge intended to allow a one-month deduction for EM bail. The Judge said, “I think that I can probably afford a further month for the time spent on electronically monitored bail” and “[i]f I round that down in your favour to 27 months, I think that adequately addresses the time spent on electronically monitored bail”. In rounding the end sentence to 27 months after applying a deduction of 40 per cent from a starting point of 46 months’ imprisonment, the Judge in fact allowed a discount for time spent on EM bail of only 0.6 of a month, that is 18 days. That raises the question, did the Judge make a mathematical error?
[31]In Ferris-Bromley v R, the Court of Appeal said:14
How then is a mathematical error to be addressed on a sentencing appeal? Section 250(2) of the Criminal Procedure Act 2011 provides that the Court must allow an appeal if satisfied both that there is error in the sentence
14 Ferris-Bromley v R [2017] NZCA 115 at [15] (footnotes omitted).
imposed on conviction and that a different sentence should be imposed. The approach adopted by this Court in such cases is as follows:
(a)A mathematical error resulting in a sentence more severe than the Judge patently intended must be corrected, even if the sentence imposed was still within the available range. In such a case of plain error, it would be unjust for that error to be left uncorrected.
(b)If it is not clear that the Judge made a mathematical error in arriving at the sentence imposed, the usual test will apply: is the sentence manifestly excessive (that is, beyond the available range)?
(c)An error favouring a defendant will not be corrected unless it has resulted in a sentence manifestly inadequate or inappropriate. In practice this approach is only taken on a prosecution appeal, brought with the Solicitor-General’s consent under s 246 of the Criminal Procedure Act.
[32] Given the language used by the Judge, I am not satisfied he did make a mathematical error in not allowing a full one-month discount for time spent on EM bail. First, the reference to the rounding down “adequately” addressing the time spent on EM bail is more consistent with the Judge forming the view that a discount of around one month was intended. Second, the Judge recorded that in discounting for the difficulties in custody, he also had in mind trying to reflect some of the restrictions that have been placed on Mr Huntley already. The Judge must have been referring to the restrictive conditions of EM bail.
[33] A court must take into account the time spent on EM bail as a mitigating factor in sentencing an offender.15 Allowances for time spent on EM bail are not given on a one-for-one approach because EM bail affords much greater autonomy than a remand in custody does.16 The Court of Appeal has observed that the range for credit tends to be between 30 and 50 per cent of time spent on EM bail, but an allowance of up to 50 per cent is not uncommon.17 That raises the question whether a 0.6 of a month in this case was inadequate.
15 Sentencing Act 2002, s 9(2)(h).
16 Glassie v R [2022] NZCA 556 at [74].
17 C v R [2023] NZCA 99 at [41]; Paora v R [2021] NZCA 559 at [53]; and Glassie v R, above n 17, at [74].
[34] The onus is on the defendant to show that they have complied with the conditions of EM bail.18 If a defendant breaches the conditions of EM bail, the Court might well determine that no credit for time spent on EM bail is appropriate.19
[35] In this case, Mr Huntley engaged in serious breaches of the EM bail conditions after a period of two and a half months on EM bail. As Mr Bonniface submits, there might well have been mitigating factors relevant to those breaches, but in my view Mr Huntley was perhaps fortunate that the Judge allowed any discount for time spent on EM bail. Regardless, it is my view the effective discount allowed was not outside the permissible range.
Rehabilitation and reintegration
[36] Mr Bonniface submits the Judge placed too much weight on denunciation and deterrence and insufficient weight on rehabilitation and reintegration. This submission is advanced in support of the Court commuting the end sentence to one of home detention if the sentence is to be reduced to a short-term sentence. Mr Bonniface does not advance that submission to suggest a further discrete deduction should have been allowed.
[37] Given the view I have reached that the sentence of two years and three months’ imprisonment was not manifestly excessive, it is not necessary I consider that issue.
[38] I nevertheless record that I disagree that the Judge overemphasised the sentencing principles of denunciation and deterrence. Mr Huntley’s focus in terms of this appeal, understandably, given the time he has spent in custody has been on his willingness to engage in rehabilitation. Indeed, Mr Bonniface, quite frankly in my view, described Mr Huntley as being “desperate.” I do not doubt that is where he currently sits in terms of the predicament he faces. But that does distract from the serious of his admitted offending. His offending was very serious. Any case involving armed threats, cut-down firearms, ammunition, gangs and Class A drugs has sinister and potential lethal overtones. The aggravated robbery and subsequent demanding
18 Paora v R, above n 18, at [60].
19 See Bird v R [2023] NZCA 308; and Roberts v R [2021] NZHC 2128 at [16].
with intent to steal was very nasty and intimidating. Mr Huntley had the means to carry through the threats he made. I have no doubt he was acting under the influence of methamphetamine. That only serves to highlight the danger he presented. Whilst personal deterrence might not be necessary given Mr Huntley’s expressed motivation to change, a clear message still needs to be sent to young men that if you engage in drug dealing, firearms and violence, custodial sentences are going to be imposed.
[39] I can understand Mr Huntley’s frustration that he is unlikely to be placed on rehabilitative programmes at this stage given the proximity of his release date, but the reality is that is a consequence of his delayed guilty plea.
Conclusion
[40] I accept Mr Huntley’s expressed desire to engage in rehabilitation as genuine and he is to be strongly encouraged to stay on that path, so he can implement his changed outlook on his release, but the focus on this appeal must ultimately be on the end sentence. Mr Huntley was convicted of serious offending. I am not satisfied that an end sentence of two years and three months’ imprisonment was excessive let alone manifestly excessive.
[41]Therefore, the sentence appeal must be and is dismissed.
...................................................
Eaton J
Solicitors:
JMJ Lawyers Limited, Timaru Gresson Dorman & Co, Timaru
0
8
0