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 convictions for arson; and that Mr Hutchings had not offended for 14 years. The Judge indicated a 25% discount for Mr Hutchings’ guilty plea.

[9]    At sentencing the Judge applied a further discount of five per cent for personal mitigating factors evidenced in the s 27 report. The combined 30 per cent discount from 22 months equated to 6.6 months, which the Judge rounded up to a discount of seven months to give an end sentence of 15 months’ imprisonment.

[10]   The Judge did not consider it appropriate to commute the sentence to one of home detention:

[14] I can indicate to you when I look at matters for and against this notion that I should give you home detention, I am not prepared to accept that home detention is the least restrictive option. In my view it is not and in my view denunciation and deterrence notwithstanding that home detention can be a real and effective option, is not an appropriate sentence for you.

[11]   Judge Cocurullo also ordered reparation. I am told the amounts are $5,522.88 and $550 in favour of the complainant and the owner of the property; and that a repayment plan of $30 per week was implemented.

6 Sentencing indication, above n 3, at [9].

Legal Principles

Approach on appeal

[12]   The Court must allow the appeal if it is satisfied that there has been an error in the sentence imposed and that a different sentence should be imposed.7 Otherwise the appeal must be dismissed.8 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by relevant sentencing principles.9 As the Court of Appeal mentioned in Tutakangahau v R, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.10

Imprisonment/Home Detention

[13]   The Court must not impose a sentence of imprisonment unless it is satisfied that: a sentence is being imposed for any of the purposes in s 7(1)(a)-(c), (e) (denunciation), (f) (deterrence), or (g) (community protection); those purposes cannot be achieved by a sentence other than imprisonment; and no other sentence would be consistent with the principles set out in s 8.11 Those principles include the Court’s obligation to impose the least restrictive outcome.12

[14]   Deciding whether home detention will meet the sentencing objectives of deterrence and denunciation in a particular case is a strictly evaluative exercise. It is a matter of judgment for the sentencing judge to determine whether home detention is an adequate response to the seriousness of the offending. On appeal, the question is whether the sentencing judge erred in that evaluation: did he or she apply an incorrect principle; give insufficient or excessive weight to a particular factor; or was he or she plainly wrong?13

7      Criminal Procedure Act 2011, s 250(2).

8      Section 250(3).

9      Ripia v R [2011] NZCA 101 at [15].

10     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

11     Sentencing Act 2002, s 16(2).

12     Section 8(g).

13     James v R [2010] NZCA 206, (2010) 24 NZTC 24,271 at [17]; and Manikpersadh v R [2011]

NZCA 452 at [11] and [17].

Submissions

[15]   Ms Gilbert for Mr Hutchings takes no issue with the 22-month starting point, the 25 per cent discount for guilty plea or the five per cent discount in light of the s 27 report. However counsel submits that:

(a)Judge Cocurullo erred by placing too much weight on factors that were not materially relevant; and placing too little weight on personal mitigating factors (remorse, time spent on bail, and Mr Hutchings’ ill health).

(b)Judge Cocurullo erred by failing to undertake a full assessment of the factors in s 16 of the Sentencing Act 2002 when considering the imposition of imprisonment.

[16]   Ms Gilbert submits that these errors resulted in a sentence that was manifestly excessive, and the least restrictive sentence of home detention was not imposed.

[17]   The Crown accepts that the Judge appears not to have considered some mandatory mitigating factors but submits that these would not necessarily have led to further discounts. Mr Lewis submits that the end sentence was within range, can be justified by accepted sentencing principles, and is not manifestly excessive.

Restorative justice, reparation, and remorse

[18]   Ms Gilbert submits that the Judge erred by not considering a discount for remorse, and that a discount of at least five per cent is warranted. Mr Hutchings has written a letter of apology to the victim and his daughter. Counsel for Mr Hutchings submits that his remorse is genuine, as demonstrated through his actions. Correspondence from The Restorative Justice Trust confirms that Mr Hutchings was willing to engage in a restorative justice process but the complainant was unable to be contacted. I am told Mr Hutchings voluntarily offered to pay reparation. The Judge ordered Mr Hutchings to pay total reparation of $6,072.88. Mr Hutchings also moved away from Hamilton and has approached various counselling agencies to address his underlying issues and grief.

[19]   Ms Gilbert points out that in sentencing the Court is required to take into account an offender’s remorse,14 as well as any offer of amends, compensation, apology or other attempt to make good the harm caused.15 The Judge’s sentencing notes do not refer to these mandatory considerations. The Judge allowed no discount for them.

[20]   Mr Lewis for the Crown accepts that remorse and any offers of amends, compensation or apology are mandatory considerations for the sentencing Judge but were not referred to in the sentencing notes. However, he points out that mandatory considerations do not require mandatory discounts. The Court is also to take into account whether the offered amends are genuine and capable of fulfilment, and whether or not it has been accepted by the victim as expiating or mitigating the wrong. The Crown submit the PAC report indicates that although Mr Hutchings regrets his actions in hindsight, he was motivated by retribution. So, it is unclear whether his letter of remorse and willingness to engage in restorative justice were genuine or attempts to secure a discount.

[21]   In respect of reparation, the Crown says the $30 weekly payment is not meaningful as it will take 203 weeks to repay the full amount and the victim will not be able to rebuild. Therefore, there is no error in the Judge’s decision to not apply a discount for this factor.

Time on bail

[22]   Ms Gilbert also submits that the Judge erred by not considering a discount for time Mr Hutchings spent on bail. Mr Hutchings was granted bail simpliciter with a 24-hour curfew on 30 December 2022. On 25 January 2023, the conditions of bail were varied so that Mr Hutchings had 90 minutes per week to shop for groceries. When Mr Hutchings moved out of Hamilton in March 2023 the conditions of his bail were varied again so he had five hours per day to help care for his grandchildren and to attend medical appointments.

14     Sentencing Act 2002, s 9(2)(f).

15     Section 10.

[23]   Ms Gilbert acknowledges that discounts for time on bail are discretionary, particularly where bail is not EM and curfew is not 24-hour. However, she submits some discount is appropriate in circumstances where Mr Hutchings was subject to 24- hour curfew for two-and-a-half months and a 19-hour curfew for seven-and-a-half months. The Court of Appeal has accepted in principle that a discount will often be appropriate to reflect a significant period on a 24-hour curfew.16

[24]   The Crown accept that Mr Hutchings complied with his bail conditions but submits that it was open to the Judge to disregard any credit for time spent on bail. The Crown refers to R v Tamou where this Court held that accounting for time spent on bail requires evaluative assessment of all the circumstances, and there will be occasions when no allowance is required at all.17 The Crown submits that as well as Mr Hutchings’ compliance, the Court needs to consider his culpability and the seriousness of his offending.

Ill health

[25]   Ms Gilbert submits further that Judge Cocurullo erred by not considering a discount for Mr Hutchings’ ill health, and that a discount of 10 per cent is justified. Following the arson, Mr Hutchings was assaulted by someone other than the complainant in retribution for the arson. That person has been convicted on charges of assault with intent to injure and wilful damage and received a community-based sentence. Mr Hutchings suffered injuries from the assault. He lost teeth and his denture plate was broken. Ms  Gilbert  provided  a  dental  report  confirming  that Mr Hutchings requires significant dental treatment that he will not be able to receive while in prison.

[26]   Ms Gilbert does not suggest this renders Mr Hutchings unable to serve a prison sentence. But she submits that a discount is appropriate to reflect that he will be unable to get treatment while in prison. Counsel refers to authority supporting discounts in the range of 14 to 33 per cent for ill health and submits that 10 per cent is appropriate here.18

16     Bennet v R [2012] NZCA 173 at [25].

17     R v Tamou [2008] NZCA 88 at [19].

18     Hastie v R [2011] NZCA 498 at [40].

[27]   Mr Lewis submits that the Judge was justified in not allowing a discount for Mr Hutchings’ poor health. He points out that ill health is not a mandatory consideration and says there is no evidence Mr Hutchings’ health will be negatively impacted by imprisonment. Mr Lewis suggests that any discount on this basis would undermine the deterrent effect of Mr Hutching’s sentence.

Home detention

[28]   Ms Gilbert submits that Judge Cocurullo erred by imposing a sentence of imprisonment rather than a sentence of home detention. She submits that the Judge focused on the purposes of denunciation and deterrence to the exclusion of other relevant factors, including that the Court “must have regard to the desirability of keeping offenders in the community as far as that is practicable and consonant with the safety of the community”.19 Counsel for Mr Hutchings submits that a sentence of home detention would achieve the purposes of sentencing, including denunciation and deterrence; and would be in line with the principles of sentencing. As such the Judge was wrong to conclude that imprisonment, not home detention, was the least restrictive outcome appropriate in the circumstances.20

[29]   The Crown submits that Judge Cocurullo did not err in imposing a sentence of imprisonment rather than one of home detention. The Crown says that the Judge’s focus on denunciation and deterrence is consistent with appellate court authority and the requirements of the Sentencing Act.

[30]   The Crown refers to Lyon v Police,21 which was also an appeal to this Court against the imposition of imprisonment rather than home detention for a charge of arson. In Lyon, the Court was not satisfied that excessive weight had been placed on denunciation and deterrence because the Judge had properly assessed culpability, aggravating and mitigating factors; was alive to the requirement that the least restrictive sentence be imposed; and took into account the PAC report, which recommended imprisonment.22 The Court in Lyon ultimately dismissed the appeal,

19     Sentencing Act 2002, s 16(1).

20     Section 8(g).

21     Lyon v Police [2021] NZHC 1621 at [26].

22 At [50].

holding that the imposition of a short period of imprisonment, rather than home detention, was justified by sentencing principles and within the available range.23

[31]   Mr Lewis says Mr Hutchings’ case is similar. Judge Cocurullo focused on denunciation and deterrence and the PAC report recommended a sentence of imprisonment, with home detention as a second option. Therefore, there was no error in imposing imprisonment rather than home detention.

Discussion

[32]   The Judge took the view that a five per cent discount was appropriate to recognise the factors described in the s 27 report, particularly medical and psychological information.24 In the circumstances the Judge might also have allowed a further discount to reflect Mr Hutchings’ remorse, his offers to engage in restorative justice, his ill health and the time he had spent on restrictive bail.   However, as     Mr Lewis points out, discounts are not mandatory. Standing back, I do not consider the end sentence was manifestly excessive. It was within the range that can properly be justified by accepted sentencing principles.

[33]   In deciding not to commute Mr Hutchings’ sentence of imprisonment to one of home detention, the Judge focused almost exclusively on the need for deterrence and denunciation. Although the Judge “[did] not discount” Mr Hutchings’ medical issues and willingness to rehabilitate,25 he did not refer to Mr Hutchings’ letter of remorse nor his willingness to engage in a restorative justice process, which are mandatory considerations. This is not necessarily to say that the Judge failed to take these matters into account, but it is not apparent from the sentencing notes that he did.

[34]   In all of the circumstances I do not consider that a term of imprisonment was the least restrictive sentence available. In this regard I take into account Mr Hutchings’ apparent remorse; his offer to engage in a restorative justice process; his age; and the Department of Corrections’ advice that he has a low risk of reoffending. I agree that

23 At [54].

24     After rounding the 30 percent discount up from 6.6 months to 7 months, the discount additional to the 25 percent discount for the guilty plea was almost seven per cent.

25     R v Hutchings, above n 1, at [13].

deterrence and denunciation are important purposes to be achieved in sentencing   Mr Hutchings, but in my view a sentence of home detention will achieve those purposes in this case. It will also achieve the other purposes set out in s 7 and is consistent with the principles set out in s 8.

[35]   In my view Mr Hutchings’ case is materially different to that which was before the Court in Lyon. Mr Lyon had pleaded guilty to two charges of arson, two charges of burglary, and making false statements to the Police. After Mr Lyon had accepted his sentencing indication and pleaded guilty to those charge, but prior to sentencing, he then denied lighting fires and fabricated stories concerning the burglaries. The District Court and High Court noted that the pre-sentence report writer had struggled to assess Mr Lyon’s remorse because his focus during the report-writing process was on the impact upon himself. On appeal Nation J noted that the sentencing Judge had found that “extremely concerning”.26 That is not the situation here. Mr Hutchings’ offending was clearly pre-meditated, but there is no evidence to suggest that his remorse is not genuine.

[36]   Mr Hutchings was sentenced on 31 August 2023. He would have been automatically paroled after serving half of his 15-month term of imprisonment. Taking into account that Mr Hutchings has spent almost two months in prison I consider it is appropriate to substitute his sentence of 15 months’ imprisonment with a sentence of five months’ home detention. That sentence will commence from the time it was imposed, namely 27 October 2023.

Result

[37]   The sentence of 15 months’ imprisonment is quashed, and a sentence of five months’ home detention is imposed. This is to be served at the address specified in the pre-sentence report dated 9 June 2023 and is subject to the conditions recommended in that report.

26     Lyon v Police, above n 21, at [21].

[38]The order for reparation remains.

Robinson J