Hutchinson v The Queen - [2020] NZCA 655

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA389/2020
[2020] NZCA 655

BETWEEN	TYSON DISRAELI HUTCHINSON Appellant
AND	THE QUEEN Respondent

Hearing:	10 November 2020
Court:	Brown, Duffy and Nation JJ
Counsel:	N P Bourke for Appellant C Ure for Respondent
Judgment:	18 December 2020 at 10.30 am

JUDGMENT OF THE COURT

A The appeal is allowed.

BThe sentence of five years and four months’ imprisonment is quashed and a sentence of four years and ten months’ imprisonment substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Introduction

Following a sentence indication Mr Hutchison pleaded guilty to several offences, including those involving the use of firearms, that occurred during two episodes in March and October 2019. He was sentenced in the District Court at New Plymouth by Judge Greig to five years and four months’ imprisonment.[1] He appeals against that sentence contending that it was manifestly excessive.

Factual background

[1]R v Heke [2020] NZDC 12341 [Sentencing notes].

At all relevant times Mr Hutchinson was a member of the Uru Taha gang. The incidents in March 2019 all involve conduct which he undertook at the behest of Mr Heke who was also a member of the gang.
On 29 March 2019 on Mr Heke’s instructions Mr Hutchinson drove Mr Heke to a property at Omata Road, Marfell. Mr Heke fired a shotgun at the residential address, hitting the house and a motor vehicle parked in front of the house. They disposed of their clothing by burning the items and then, at Mr Heke’s direction, Mr Hutchinson dug a hole and buried the shotgun wrapped in a plastic bag.
In the evening of 29 March 2019 Mr Heke became agitated by the behaviour of another person and violently assaulted that person. Mr Heke held the victim on the ground and demanded an associate to grab a shotgun which was on the premises. Mr Hutchinson retrieved the shotgun and handed it to Mr Heke. The firearm discharged, striking the victim in the left arm and causing him severe damage. Mr Hutchinson removed the firearm, left the premises and disposed of the firearm.
Then on 31 March 2019 Mr Hutchinson formed the view that another person had informed the police about his and Mr Heke’s involvement in the events of 29 March 2019. While Mr Heke held the person at gun point, Mr Hutchinson assaulted the person by punching him about the head. Mr Hutchinson was arrested in relation to the March offending in July 2019 and was released on bail on strict conditions.
In the second episode in October 2019 Mr Hutchinson acted alone. He took a vehicle without the owner’s consent and drove to an address which was the local Mongrel Mob gang pad. He fired a number of rounds from a .22 Ruger rifle at the property. This incident took place in a busy area with both residential and shopping buildings in the immediate vicinity. Police responding to the shooting incident observed the…

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: [2020] NZCA 655
Decision Date: 18 December 2020 at 10.30 am

CaseChat Overview and Summary

Tyson Disraeli Hutchinson, the appellant, has appealed against his sentence of five years and four months' imprisonment, contending that it was manifestly excessive. The appeal was heard by Brown, Duffy and Nation JJ, and decided on 18 December 2020. The court allowed the appeal and substituted a sentence of four years and ten months' imprisonment. The grounds of appeal were that the starting point was outside the available range, the uplift for the October offending was outside the available range, insufficient account was taken of the totality principle, and insufficient credit was given for personal mitigating factors. The court found that the starting point for the March episode was appropriate, but the uplift for the October offending was excessive, and there was insufficient regard to the totality principle. The court also found that a greater discount should have been given for the appellant's youth and personal circumstances. The sentence was therefore adjusted to reflect these findings.

The final orders of the court were that the sentence of five years and four months' imprisonment was quashed and a sentence of four years and ten months' imprisonment was substituted. The appeal was allowed, and the sentence was reduced by six months.

Orders