Hutchinson v The Queen
[2020] NZCA 655
•18 December 2020 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA389/2020 [2020] NZCA 655 |
| BETWEEN | TYSON DISRAELI HUTCHINSON |
| AND | THE QUEEN |
| Hearing: | 10 November 2020 |
Court: | Brown, Duffy and Nation JJ |
Counsel: | N P Bourke for Appellant |
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 stolen vehicle travelling at 70 kilometres an hour in a 50 kilometre residential/school zone and activated red/blue flashing lights and siren signalling Mr Hutchinson to stop. Mr Hutchinson accelerated and fled from the police, crashing a short time later into a residential concrete fence.
The sentencing decision
Mr Hutchinson was sentenced in respect of the following offending:
(a)The March episode:
Charge 1: Participation in an organised criminal group.[2]
Charge 2: Possession of a firearm.[3]
Charge 3: Discharge of a firearm with reckless disregard.[4]
Charge 6: Accessory after the fact.[5]
Charge 7: Common assault.[6]
Charge 8: Assault with a weapon.[7]
(b)The October episode:
Charge 1: Unlawfully takes motor vehicle.[8]
Charge 2: Commission of crime with firearm.[9]
Charge 3: Failing to stop when followed by red/blue flashing lights.[10]
[2]Crimes Act 1961, s 98A(1) and 2(c): maximum penalty of ten years’ imprisonment.
[3]Arms Act 1983, s 45(1)(b): maximum penalty of four years’ imprisonment and/or $5,000.00 fine.
[4]Crimes Act, s 198(2): maximum penalty of seven years’ imprisonment.
[5]Sections 71(1) and 312: maximum penalty of three and a half years’ imprisonment.
[6]Section 196: maximum penalty of one year imprisonment.
[7]Section 202C: maximum penalty of five years’ imprisonment.
[8]Section 226(1): maximum penalty of seven years’ imprisonment.
[9]Section 198B(1)(a): maximum penalty of ten years’ imprisonment.
[10]Land Transport Act 1998, ss 52A(1)(a)(ii) and 114(2): maximum penalty of a fine of $10,000.00.
The sentence was constructed in this way. The March 2019 offending attracted a starting point of four years and 11 months’ imprisonment. One year and nine months of that reflected charges 1–3, eight months for charge 6, and two years six months to account for charges 7–8. A three month uplift was applied to reflect that this offending occurred while Mr Hutchinson was subject to a sentence of intensive supervision (for which there was total non-compliance). This took the end starting point for the March offending to five years and two months’ imprisonment.
The October offending attracted an initial starting point of three years’ imprisonment to which a nine month uplift was applied for aggravating factors. The October offending was committed whilst Mr Hutchinson was already on bail for the March offending.
A full discount of 25 per cent was applied on account of Mr Hutchinson’s early guilty plea. The Judge also applied a 15 per cent discount for a variety of personal factors. He explained:[11]
[13] Mr Hutchinson, this is not your fault and it is not Mr Bourke’s fault, but I did find your report disappointing because it did not enable me to draw such a clear conclusion as it did with Mr Heke. But what it did highlight, and Mr Bourke is right and his submissions on this were useful; what he has just said to me, the effect of the absence of a father in your life was two-fold. One, you yearned to be with him or be like him or be admired by him. Probably because he was an absentee, you had an artificial image of him. The second is that because he was not there, you lacked what a father needs to do, which is knock a bit of sense into a young boy and give him some maturity.
[14] I agree with Mr Bourke that all of this is about a lack of maturity, a lack of judgement, and the desire to be a hood, be a gangster. So I think it does enable me to further reduce your sentence.
…
[17] … For a combination of other factors raised in the cultural report, which as I say - you have to work a lot harder to join the dots to make the connection between your upbringing, the generational neglect. That was there because of your father, he was a victim of generational neglect and that has directly been passed on to you; you grew up in a gang. So, the combination of that, the combination of acting under the authority (because of your immaturity) of someone who lacked moral culpability, all equate also in your case to another 15 percent discount. So that is a 40 percent discount.
The appeal
[11]Sentencing notes, above n 1.
The appeal is advanced on four grounds:
(a)The starting point was outside the available range.
(b)The uplift for the October offending was outside the available range.
(c)Insufficient account was taken of the totality principle.
(d)Insufficient credit was given for personal mitigating factors.
The appeal is brought pursuant to s 244 of the Criminal Procedure Act 2011. This Court must allow the appeal only if satisfied that there was an error in the sentence and a different sentence should be imposed.[12]
The starting point was outside the available range
[12]Criminal Procedure Act 2011, s 250(2).
This ground of appeal was limited to the March offending. Mr Bourke, counsel for the appellant, submitted that the Judge applied an overly mechanistic and arithmetical approach in the identification of individual starting points for several of the charges which resulted in a manifestly excessive starting point.
He emphasised that Mr Hutchinson was a young teenage man with a limited criminal history who had clearly fallen under the sway of older, more criminally experienced members of the gang he was prospecting for. While accepting that Mr Hutchinson’s presence provided support to the more senior Mr Heke, he argued that in reality the central offending was likely to have occurred with or without Mr Hutchinson’s involvement. He noted that the degree of participation of an offender in the commission of an offence is relevant to culpability and that limited involvement is a mitigating factor to be taken into account.
By reference to this Court’s decision in Gathergood v R[13] Mr Bourke submitted that the appropriate starting point for the lead charge in the March offending was in the vicinity of two and a half to three years’ imprisonment and that, rather than discrete additional sentences, the appropriate course would have been to allow an uplift in the vicinity of 12 months to reflect the remaining charges within the March offending.
[13]Gathergood v R [2010] NZCA 350.
Mr Bourke is correct to say that the degree of participation of an offender in the commission of an offence is relevant to culpability and that limited involvement is a mitigating factor to be taken into account.[14] He makes the point that it is well established that a sentencing judge may discriminate between offenders where the circumstances justify a distinction being made.[15]
[14]Sentencing Act 2002, s 9(2)(d).
[15]Police v Egden [1977] 1 NZLR 123 (CA) at 126.
However it is apparent from the fuller explanation in the sentencing indication of the construction of the sentence that the Judge did precisely that. In respect of the first band of the March offending the Judge discounted the starting point of two years’ imprisonment in respect of Mr Heke by three months to reflect Mr Hutchinson’s lesser role. However during the course of the March offending Mr Hutchinson’s role progressed from being the driver to twice concealing the relevant firearm to assuming the role of actual assailant. Consequently in respect of the offending on 31 March the Judge did not discriminate between the two in indicating a sentence of two years, six months’ imprisonment.
As we read the sentencing indication the Judge considered totality both in respect of Mr Heke and Mr Hutchinson. He regarded the starting point of seven years’ imprisonment for Mr Heke as a lenient sentence but in respect of Mr Hutchinson he indicated that on a totality basis the starting point should be reduced to five years’ imprisonment. Unfortunately that discount appears to have been overlooked at actual sentencing.
We agree with Ms Ure that individually little if any criticism could be made of the selected starting points for the various offences in the March episode. In Gathergood a starting point of three years’ imprisonment was considered appropriate for a secondary role in respect of the lead charge of discharging a firearm with reckless disregard.[16] We understood Mr Bourke’s emphasis to be that this Court considered that the burglary charge was better addressed by an uplift than being assessed on a stand‑alone basis. However we view the facts of the present case as rather different as they involve three distinct bands of offending with Mr Hutchinson progressing to a primary role.
The uplift for the October offending was outside of the available range
[16]Gathergood v R, above n 13, at [28].
Mr Bourke submitted that, while inherently dangerous, Mr Hutchinson’s actions in firing in the general direction of the Mongrel Mob gang house during daylight hours were unsophisticated and ill-conceived, noting that there was no evidence that any occupants were visible to Mr Hutchinson either inside or outside the premises. Reference was made to Carrington v Police,[17] a case of a young teenage man with limited criminal history acting impulsively, albeit with the acknowledgment that the offending in the present case was significantly more serious.
[17]Carrington v Police [2016] NZHC 2351.
While in its terms this ground referred to the “uplift” in respect of the October offending, issue was taken with the starting point more generally, although no challenge was directed to the imposition of cumulative sentences. In particular there was said to be an unjustifiable disparity between the October sentence and the two year starting point which the Judge adopted in relation to Mr Heke in the context of the initial March conduct. It was submitted that on a standalone basis the October offending warranted a sentence of no more than three years’ imprisonment.
At the sentence indication the Judge recorded that the defence took no issue with the starting point of three years’ imprisonment proposed by the Crown. We view that figure as appropriate. The offending occurred in a residential area in the middle of the day with the potential for members of the public, whether pedestrians, road users or residents in the target or adjoining properties, being placed at significant risk. Indeed the summary of facts records that a member of the public was driving directly behind Mr Hutchinson when he fired the rifle. Mr Bourke appropriately acknowledged that given its deliberate nature Mr Hutchinson’s offending was more serious than that in Carrington which involved the accidental discharge of a stolen rifle at an address which Mr Carrington was visiting. Mr Carrington apologised to the person whose house he was visiting and left.
While Mr Heke may have been a little fortunate with the sentence allocated in respect of the initial March offending, the totality of his offending was fairly recognised in the final starting point of seven years’ imprisonment. In any event we do not view the offending as closely comparable given that Mr Heke’s offending was not during the day time.
In explaining the uplift the Judge referred to a level of premeditation and a risk of harm, together with the aggravating feature of the use of a firearm although that was reflected in one of the charges. To those features we would add that the October offending occurred when Mr Hutchinson was on bail for the March offending. In the circumstances the uplift imposed was available.
Insufficient regard to the totality principle
Where cumulative sentences of imprisonment are imposed, they must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending.[18] The sentencing judge must not only consider each offence individually but must also assess the offender’s overall criminality and determine what effective sentence is appropriate for the totality of the conduct.[19] It was common ground that the total end sentence should not be determined by sequentially adjusting the appropriate end sentence for each individual offence in order to fit the totality principle.
[18]Sentencing Act, s 85(2).
[19]R v Dodd [2013] NZCA 270 at [32]–[33].
In advancing the proposition that insufficient regard was given to the totality principle Mr Bourke drew attention to the fact that the only reference to that principle was in the sentencing indication when the Judge indicated that a two month discount would be applied to the March offending on a totality basis. However at sentencing there was neither reference to that discount nor to any other adjustment for totality.
Reference was made to Elliott v R[20] which involved two charges of aggravated robbery and one charge of aggravated wounding, and R v Warren[21] which involved three charges of aggravated robbery where the starting points were nine years and ten years respectively. While recognising that the offending in those cases was of a somewhat different nature from the present case Mr Bourke argued that they pointed to the overall starting point of eight years and 11 months’ imprisonment being manifestly excessive, emphasising again the youth and criminal inexperience of Mr Hutchinson.
[20]Elliott v R [2018] NZCA 526.
[21]R v Warren [2017] NZHC 2889.
Proceeding from the starting points advocated above (three and a half to four years’ imprisonment for the March offending and three years for the October offending) Mr Bourke submitted that due regard to the totality principle should result in an adjusted starting point for all the offending in the vicinity of five and a half years’ imprisonment.
As Ms Ure observed, the totality principle is not a discount for bulk offending and an adjustment to individual sentences imposed cumulatively is not automatic. Furthermore the failure of a judge to mention the totality principle is of no moment if the sentence imposed is not out of proportion to the gravity of the offending.[22]
[22]Kite v R [2018] NZCA 485 at [21].
However it is apparent from the notes of the sentencing indication that the Judge was cognisant of the requirement to consider totality. He did so first in the context of the indication for Mr Heke and then in indicating a two month discount for Mr Hutchinson in respect of the March episode. We infer that it was also in the Judge’s mind when having observed that the end sentence, after the discount of 25 per cent for early guilty pleas, of six years five months’ imprisonment was a very long sentence for someone of Mr Hutchinson’s age, the Judge expressed the view that the sentence was lenient in view of all the circumstances.
Mr Hutchinson’s youth is a matter which we address in the context of the final ground of appeal. The omission of the totality discount referred to in the sentencing indication aside,[23] which we consider should be remedied, we do not accept that there was any error in the decision not to make a totality adjustment to Mr Hutchinson’s sentence. We agree with Ms Ure’s submission that the offending is properly characterised as serious, sustained and, certainly in the context of the October offending, premeditated. On that occasion there was a risk of harm to a number of people. In our view the ultimate sentence was appropriate, particularly so with the adjustments to which we refer below.
Insufficient credit for mitigating features
[23]At [18] above.
Both Mr Heke and Mr Hutchinson received the same 15 per cent discount for personal factors. However, as Mr Bourke observed, whereas in respect of Mr Heke the Judge identified 5 per cent in respect of youth and prospects of rehabilitation and 10 per cent for s 27 factors, the Judge did not explicitly refer to the composition of the discount for Mr Hutchinson. Mr Bourke submitted that a greater discount was warranted for Mr Hutchinson both on account of his youth and matters identified in the s 27 cultural report.
At the time of his offending Mr Hutchinson was 18 years old and, as the Judge acknowledged, “an impressionable, immature young man”, acting under the guidance and pressure of an older male.[24] Mr Bourke submitted that, despite his youth, Mr Hutchinson had demonstrated some level of insight into his offending, explaining to the PAC report writer that he did not seek to justify his offending and acknowledging that he was mixing with the wrong people and presenting as remorseful about the possibility of harm to others in the community.
[24]Sentencing notes, above n 1, at [15].
Mr Bourke then drew attention to pertinent details in the s 27 report, highlighting as perhaps the most poignant aspect Mr Hutchinson’s recollection that on arrival at prison his father was there to meet him as a serving prisoner. Contrary to the Judge’s analysis it was submitted that the linkage between Mr Hutchinson’s offending and his upbringing is abundantly clear and that, as with so many young Māori men, he has sought a sense of belonging by joining a gang.
He submitted that the deep-seated gang allegiance is at the very core of all Mr Hutchinson’s offending. Whereas his March offending involved him acting as a loyal foot-soldier obeying instructions from older, more criminally experienced gang leaders, the October offending involved, in Mr Hutchinson’s own words, “using my initiative” to protect his hood from the Mongrel Mob. That observation was said to reflect both a significant level of immaturity but also that Mr Hutchinson’s intentions were entirely linked to doing what he thought was the right thing by his gang.
Referencing Solicitor-General v Heta[25] and this Court’s recent decision in King v R,[26] Mr Bourke submitted that Mr Hutchinson’s youth, upbringing, his degree of insight and prospects of rehabilitation, coupled with the full guilty plea, warranted a global discount of at least 50 per cent.[27]
[25]Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241.
[26]King v R [2020] NZCA 446.
[27]A 50 per cent discount was recently considered appropriate in this Court’s decision of Polaapau v R [2020] NZCA 227.
It is apparent from the sentencing note that the Judge carefully weighed the s 27 reports and, while he considered there was greater clarity in the report concerning Mr Heke, the Judge clearly recognised the significance of generational neglect and its downstream implications for Mr Hutchinson.[28] Given that both received discounts for the matters disclosed in the s 27 reports, we consider there is merit in Mr Bourke’s submission that it is surprising that the total discount for personal circumstances was the same for Mr Heke and Mr Hutchinson given that the former was four years Mr Hutchinson’s senior.
[28]At [10] above.
Ms Ure made the point that in considering a discount for youth the sentencing Judge faced a difficult task because the offending that was arguably the most serious was the latest in time. That offending was not impulsive, nor did it bear the hallmarks of youthful indiscretion.
Nevertheless we consider that at least in relation to the March episode a greater discount was justified. Throughout that sequence of conduct it is apparent that Mr Hutchinson was acting under the instruction of a fellow gang member four years his senior. With reference to that episode, but not in relation to the October episode, we consider that a further discount of approximately six months was warranted. Consequently we would add a further 5 per cent discount for Mr Hutchinson’s youth, increasing the discount for personal circumstances from 15 to 20 per cent.
Conclusion
For the reasons stated above we consider that Mr Hutchinson should have received a two month discount for totality on the March offending to which the Judge referred in the sentencing indication together with an additional 5 per cent discount for youth.
Result
The appeal is allowed.
The sentence of five years and four months’ imprisonment is quashed and a sentence of four years and ten months’ imprisonment substituted.
Solicitors:
Crown Law Office, Wellington for Respondent
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