Hutton v The Queen - [2021] NZHC 1817

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-87

[2021] NZHC 1817

BETWEEN
AARON JOSEPH HUTTON

Appellant

AND

THE QUEEN

Respondent

Hearing: 8 June 2021

Counsel:

R J Hooker for Appellant

L N Wilson for Respondent

Judgment:

19 July 2021

JUDGMENT OF BREWER J

This judgment was delivered by me on 19 July 2021 at 10 am Registrar/Deputy Registrar

Solicitors:
Vallant Hooker & Partners (Auckland) for Appellant Meredith Connell (Auckland) for Respondent

HUTTON v R [2021] NZHC 1817 [19 July 2021]

Introduction

[1] Mr Hutton appeals the sentence of five years’ imprisonment imposed on him by Judge AC Roberts on 22 January 2021.1

[2] One of the grounds of appeal is that Mr Hutton was “erroneously sentenced on a summary of facts that included the particulars of a charge withdrawn by the Crown”.

[3] I have decided that this ground of appeal is made out. The sentencing miscarried. There should have been a disputed facts hearing. I will quash the sentence and remit the case to the District Court for re-sentencing.

[4]My reasons follow.

Background

[5] Mr Hutton stood trial before Judge Roberts on two charges of attempting to deal with a young person for sexual exploitation, one charge of attempted indecent act on a child, and 15 charges of possession of objectionable publications. I do not have a copy of the charge notice and so this is a general description.

[6] Mr Hutton made contact, using the name “Kiwipedo”, with people on the “Dark Net” who he thought had access to children who could be supplied to him for sexual purposes. In fact, the people with whom he corresponded were government investigators and the children they referred to were fictitious inventions.

[7]Mr Hutton was arrested and his computer was seized and analysed.

[8] The Crown’s case required it to prove that Mr Hutton was “Kiwipedo”. To do that it had to prove that Mr Hutton’s computer was the one used by “Kiwipedo”. Mr Hutton’s lawyer looked at the Crown’s proposed evidence and concluded that it was insufficient to prove the link. Counsel also took the view that there was insufficient evidence to prove Mr Hutton had possessed objectionable images.

1 R v Hutton [2021] NZDC 967.

[9]Mr Hutton defended the charges.

[10] However, on the fourth day of the trial a Crown witness gave evidence which established the link between “Kiwipedo” and Mr Hutton’s computer and proved that Mr Hutton had possessed objectionable images.

[11] There was then a negotiation between Mr Hutton’s counsel and Crown counsel. This led to Mr Hutton pleading guilty to the following charges:

Charge 1  Amended
Attempted dealing in people         That Aaron Joseph Hutton between about under 18 for sexual exploitation  13 January 2015 and 20 February 2015 at
Auckland, attempted to enter into a dealing Sections 98AA(1)(a)(i), 72 and                  involving a person under the age of 18 years for

311 the purpose of the sexual exploitation of that
Crimes Act 1961 person.

Particulars:

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.

Continue reading Hutton v The Queen

Details

AGLC: Hutton v The Queen [2021] NZHC 1817
Case: [2021] NZHC 1817
Decision Date: 19 July 2021

CaseChat Overview and Summary

In Hutton v The Queen, Aaron Joseph Hutton appealed against his sentence of five years’ imprisonment imposed by Judge AC Roberts. Hutton argued that the sentencing miscarried because it was based on a summary of facts that included particulars of a charge withdrawn by the Crown. Hutton contended that there was no agreement that these particulars should be included in the summary of facts, and that the Crown did not follow the required procedures for handling disputed facts. The Court had to determine whether the sentencing process was flawed due to the inclusion of the withdrawn charge particulars and whether the Crown's failure to address the dispute over the facts constituted a procedural irregularity that impacted the fairness of the sentencing process.

The Court found that Judge Roberts knew at the time of sentencing that Hutton did not accept the summary of facts. Under the Sentencing Act 2002, when a fact relevant to sentencing is disputed, the court must take certain steps to determine the factual basis for sentencing. These steps include indicating the weight the court would attach to the disputed fact, allowing the parties to adduce evidence, and requiring the prosecutor to prove any disputed aggravating facts beyond a reasonable doubt. The Crown failed to follow these steps, which led to the conclusion that the sentencing process was flawed. The Court noted that while procedural irregularities cannot defeat the interests of justice, in this case, the failure to follow the required procedures for handling disputed facts led to an unfair sentencing process.

The Court allowed the appeal, quashed Hutton’s sentence, and remitted the case to the District Court for re-sentencing. The Court emphasised that the procedural failure to handle the disputed facts correctly meant that the original sentencing process could not be relied upon. Matters of bail were left to the District Court to determine.

Orders