Hutchinson v The Queen - [2013] NZCA 16

IN THE COURT OF APPEAL OF NEW ZEALAND

CA588/2012
[2013] NZCA 16

BETWEEN MICHAEL DISRALEI SHANE HUTCHINSON
Appellant

AND THE QUEEN
Respondent

Hearing: 11 February 2013

Court: Ellen France, Ronald Young and Dobson JJ

Counsel: K R Pascoe for Appellant
M E Ball for Respondent

Judgment: 18 February 2013 at 12 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

Michael Hutchinson was convicted after a jury trial of wounding with intent to cause grievous bodily harm and of aggravated robbery. He was sentenced by the trial judge, Judge Roberts, to a term of nine years imprisonment.[1] Mr Hutchinson appeals against his sentence on the basis it is manifestly excessive.[2]
[1]R v Hutchinson DC New Plymouth CRI-2011-043-2101, 24 August 2011 [the sentencing remarks].
[2] Mr Hutchinson’s appeal against conviction was abandoned and is formally dismissed.
The appeal focuses on the application of this Court’s guideline judgment in R v Taueki.[3]

Background

[3] R v Taueki [2005] 3 NZLR 372 (CA).

The incident giving rise to the offending took place one night in early July 2011. Mr Hutchinson and another man, Shannon Glen, were together at the forecourt of a service station in New Plymouth. They saw a Nissan Skyline vehicle enter the forecourt. There were three men in the car. Mr Hutchinson and Mr Glen waited for the occupants of the vehicle to finish their transactions and then followed their vehicle to an area near Lake Rotomanu.
Shortly after they arrived at the lake, Mr Hutchinson went over to the vehicle. He opened the driver’s door of the Nissan Skyline. He told the victim to get out and swung a hammer at the driver’s head. The hammer hit the victim’s head on the left side of the temple causing a laceration. The cut required medical treatment and a number of stitches. As the victim tried to leave the car, Mr Hutchinson again swung the wheel brace this time missing the victim’s head and hitting the victim’s knee fracturing his knee cap. The victim and his two friends managed to get out of the car. They were chased briefly. They saw the car being driven off.

The sentencing remarks

Prior to trial, Judge Roberts provided a sentencing indication.[4] The Judge identified a starting point of nine years imprisonment, placing the offending at a low level within band 3 of R v Taueki.[5] That band encompasses starting points in the range of nine to 14 years.[6]
[4]R v Hutchinson DC New Plymouth CRI-2011-043-2101, 21 March 2012 [the sentencing indication].
[5] R v Taueki, above n 3.
[6] At [34].
In sentencing Mr Hutchinson, Judge Roberts said the pre-sentence report and victim impact statements did not alter the position he had taken in the sentencing indication. Judge Roberts noted that the report writer had recorded Mr Hutchinson’s denial, “consistent with [his] patently untruthful evidence at trial that [Mr Hutchinson] had played no part in 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: [2013] NZCA 16
Decision Date: 18 February 2013

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an appeal by Michael Hutchinson against his sentence for wounding with intent to cause grievous bodily harm and aggravated robbery. Hutchinson was sentenced to nine years imprisonment by Judge Roberts, and he appealed, arguing the sentence was manifestly excessive. The appeal against conviction was abandoned. The court had to decide if the nine-year starting point was too high and whether there was parity between Hutchinson's sentence and that of his co-offender, Shannon Glen, who received a sentence of five years and eight months. The Crown supported the Judge's approach, arguing the combination of serious injury and premeditation warranted the sentence.

The court found that the nine-year starting point was within the appropriate range. The offending was close to the upper end of band 2 or at the bottom of band 3 as per the guideline judgment in R v Taueki. The violence was gratuitous, and a weapon was used, targeting the victim's head. The injuries were serious, although not permanent. The court concluded there had been no double counting of aggravating features. The unprovoked nature of the violence, the absence of any opportunity for the victims to surrender, and the objective of stealing the car called for a deterrent response. The court concluded the nine-year sentence was not manifestly excessive.

The appeal against sentence was dismissed.

Orders