Hutchinson v The Queen
[2013] NZCA 16
•18 February 2013
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA588/2012 [2013] NZCA 16 |
| BETWEEN MICHAEL DISRALEI SHANE HUTCHINSON |
| AND THE QUEEN |
| Hearing: 11 February 2013 |
| Court: Ellen France, Ronald Young and Dobson JJ |
| Counsel: K R Pascoe for Appellant |
| 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 stealing of the car and the assaulting of the victim”.[7] The Judge also referred to the absence of remorse and the fact Mr Hutchinson “consider[ed] it natural to be stoned”.[8]
[7] Sentencing remarks at [4].
[8] At [4].
In maintaining the nine year starting point indicated earlier, Judge Roberts considered each of the aggravating features identified earlier were present and to a “significant” level.[9] The factors as earlier identified were as follows:[10]
(a)Extreme violence. It is contended that Mr Hutchinson took into a confined area a weapon, a weapon capable of and, in fact, rendering injury that was more than trifling; a fractured knee cap and a blow to the head.
(b)Premeditation too is established. This other vehicle, I am satisfied, was identified at the Waiwhakaiho Service Station and followed. I consider too that, given the recovery circumstances of that vehicle, subsequently premeditation was elevated.
(c)Serious injury. This victim attacked by you, Hutchinson, apparently suffered a 12 stitch laceration to the head area. He was virtually incapacitated following the second blow and the fracturing of the knee cap.
(d)Use of a weapon. I have already made mention of this, what is described as a metal wheel brace striking the head area could have caused significant injury.
(e)It did involve an attack to the head.
(f)The offending was essentially facilitating another crime, that is to say, ultimately the taking of the motor vehicle.
[9] At [9].
[10] Sentencing indication at [12].
Judge Roberts rejected an argument for Mr Hutchinson that this assessment involved double counting. That was because he considered each of the elements was present.[11]
[11] Sentencing remarks at [9].
There were no mitigating factors. Accordingly, on the charge of wounding with intent, a sentence of nine years imprisonment was imposed. A concurrent term of four years imprisonment was imposed on the aggravated robbery charge.
The issue on appeal
The issue raised on appeal is whether the nine year starting point was too high. The written submissions for the appellant also raised an issue of parity between the sentence imposed on Mr Hutchinson and that of the co-offender, Mr Glen. (Mr Glen was sentenced by Judge Roberts to a term of imprisonment of five years and eight months. A nine year starting point was adopted.)[12] Ms Pascoe for Mr Hutchinson quite properly did not pursue this aspect of the appeal. The difference in sentences between the two men is explicable by their differing roles and mitigating features available to Mr Glen that did not apply to Mr Hutchinson.
The starting point
[12] R v Glen DC New Plymouth CRI-2011-043-2101, 27 August 2012.
The submission for the appellant is that the Judge did not properly evaluate the aggravating features as required by Taueki. In developing this submission, Ms Pascoe says some factors have been over-emphasised and others have been double-counted. In particular, Ms Pascoe submits the violence was not extreme and the premeditation was limited. She emphasises that the violence was not prolonged. While the offending was not purely opportunistic, any planning was minimal.
When these factors are properly assessed, the submission is that the offending falls at the lower end of band 2 of Taueki warranting a starting point of between six and a half to seven years imprisonment. Band 2 encompasses starting points in the range of five to ten years imprisonment.[13]
[13] R v Taueki, above n 3, at [34].
The Crown supports the approach taken by the Judge. Ms Ball emphasises the combination of serious injury and premeditation in order to facilitate a crime.
Our analysis
The nine year starting point adopted by the Judge was stern. We have nonetheless concluded that the starting point was within range for the reasons we now discuss.
Whether or not the offending was correctly characterised as falling within band 3 of Taueki, it was plainly close to the upper end of band 2. As is apparent, there is an overlap between the two bands. A nine year starting point places the offending close to the top of band 2 or at the bottom of band 3. Band 2 was described in Taueki as appropriate for grievous bodily offending featuring two or three of the aggravating factors discussed in the judgment. Band 3, in contrast, was expressed as normally encompassing serious offending having three or more of the aggravating features identified.
From the evidence at trial, it was open to the Judge to conclude the two men pre-planned the offending. They followed the car to the lake and there was evidence of discussion between the two men about stealing the car before Mr Hutchinson set upon the driver.
Further, the violence was gratuitous. Mr Hutchinson had no idea the three victims would not have left the car on being asked to do so. Instead, before the driver had a chance to get out of the car, Mr Hutchinson swung the hammer at his head. Moreover, the driver was attempting to get out of the car when Mr Hutchinson hit him again on the knee. The gratuitous nature of the violence is a distinguishable feature in this case. So, too, there can be legitimate separate recognition that a weapon was used, and that the attacker targeted the victim's head.
Finally, the injuries, whilst not permanent, were serious and did result in disability for a number of weeks for the victim. We are satisfied there has been no double counting of these aggravating features.
Ms Pascoe relies on authorities where similar or lesser starting points have been adopted in cases involving multiple injuries. For example, she refers to Hancock v R which involved multiple blows by the three offenders to the head as well as other injuries.[14] In that case, this Court reduced the starting point from 10 years imprisonment to nine years characterising the offending as just within band 3. The Court noted that the injuries in Hancock, whilst “moderately serious”, were not life threatening and did not result in any long term damage.[15] Further, the potentially serious aggravating factor of vigilante action was seen as having been “neutralised by the element of provocation”.[16] The latter element is notably absent in the present case as is the link to the facilitation of another crime. Importantly also, as is recognised in Taueki, the gratuitous nature of the violence in this case is a relevant factor in assessing the extent of the violence.
[14] Hancock v R [2012] NZCA 36.
[15] At [24].
[16] At [24].
In summary, this was unprovoked violence giving the victims no opportunity to surrender and it was administered with the objective of stealing the car. It called for a deterrent response. For these reasons, we conclude that the nine year sentence was not manifestly excessive.
Result
The appeal against sentence is dismissed.
Solicitors:
Nicholsons, New Plymouth for Appellant
Crown Law Office, Wellington for Respondent