Hutchings v The King - [2023] NZHC 3042

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2023-419-68

[2023] NZHC 3042

HUTCHINGS

v

THE KING

Hearing: 17 October 2023

Appearances:

S Gilbert for Mr Hutchings J Lewis for the Crown

Judgment:

27 October 2023

Reasons:

30 October 2023

REASONS JUDGMENT OF ROBINSON J

[Appeal against sentence]

This judgment was delivered by me on 30 October 2023 at 4:00 pm.

Registrar/ Deputy Registrar

Solicitors/counsel: S Gilbert, Hamilton
Hamilton Legal, Hamilton

HUTCHINGS v R [2023] NZHC 3042 [27 October 2023]

Introduction

[1] Ronald Hutchings is 71 years old. On 31 August 2023, Judge Cocurullo sentenced him to 15 months’ imprisonment1 in respect of one charge of arson.2 Mr Hutchings had previously pleaded guilty and been convicted after accepting a sentence indication given by Judge Cocurullo on 30 March 2023.3

[2] Mr Hutchings appeals his sentence. In essence he says that the end sentence is manifestly excessive because the Judge did not apply appropriate discounts; and erred by not commuting the term of imprisonment to one of home detention.

[3] The Crown opposes the appeal. It says the end sentence was within the proper range; and the Judge did not err in concluding that imprisonment was the least restrictive sentence appropriate in the circumstances.4

[4] On 27 October 2023 I allowed Mr Hutchings’ appeal and substituted his sentence of 15 months’ imprisonment with a sentence of five months’ home detention.5 These are the reasons why.

Offending

[5] Mr Hutchings is a friend of the complainant’s ex-partner. There were disputes between the complainant and the ex-partner at the time of the offending.

[6] On the morning of 28 December 2022, Mr Hutchings parked his car adjacent to the complainant’s property. He waited and observed the property until he was satisfied that no one was home. Mr Hutchings then jumped the back fence and forced his way into the garage. He lit a fire in the garage, close to the rear garage door. He then left the property and returned to his vehicle.

1      R v Hutchings [2023] NZDC 18750.
2      Crimes Act 1961, s 267(1)(b). Maximum penalty of 14 years’ imprisonment.
3      R v Hutchings DC Hamilton CRI-2022-019-005779, 30 March 2023 [Sentencing indication]. Sentencing was originally scheduled for 27 July 2023 but was adjourned for reasons unattributable to the parties.
4      Sentencing Act 2002, ss 8(g) and 16(2).
5      Hutchings v R [2023] NZHC 3016.

[7] The garage is positioned very close to the main dwelling. The fire caused extensive damage to the dwelling and personal belongings, including the victim’s vehicle worth $5,000.

Decision under appeal

[8] At the sentencing indication the parties agreed a starting point of 18–20 months’ imprisonment. The Judge considered a higher starting point of 22 months was appropriate. He noted that “the culpability here by way of premeditation in my view is not insignificant”.6 The Judge indicated there would be no uplift for Mr Hutchings’ previous convictions, noting that his “extensive” list of previous convictions did not include…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NZHC 3042
Decision Date: 27 October 2023

CaseChat Overview and Summary

Ronald Hutchings, aged 71, appealed against his sentence of 15 months’ imprisonment for arson, which Judge Cocurullo had imposed on 31 August 2023. The appeal was heard before Robinson J on 17 October 2023, with submissions from counsel for Hutchings, Ms Gilbert, and for the Crown, Mr Lewis. The judgment was handed down on 27 October 2023 and the reasons were provided on 30 October 2023. Hutchings argued that the sentence was manifestly excessive and that the Judge had erred by not commuting the term of imprisonment to one of home detention. The Crown opposed the appeal, asserting that the sentence was within the proper range and that imprisonment was the least restrictive sentence appropriate in the circumstances.

The court examined whether there had been an error in the sentence imposed and if a different sentence should be imposed. The appeal could be allowed if the sentence being appealed was "manifestly excessive" and not justified by relevant sentencing principles. The court considered whether Judge Cocurullo had erred in the evaluation of factors such as remorse, time spent on bail, ill health, and the appropriateness of home detention versus imprisonment. While the Crown argued that the sentence was within the range that can properly be justified by accepted sentencing principles, the court found that a sentence of home detention would be appropriate in this case, taking into account Hutchings’ apparent remorse, offer to engage in a restorative justice process, his age, and his low risk of reoffending.

The sentence of 15 months’ imprisonment was quashed, and a sentence of five months’ home detention was imposed, to be served at the address specified in the pre-sentence report dated 9 June 2023 and subject to the conditions recommended in that report. The order for reparation remains.

Orders