Hutton v The Queen
[2021] NZHC 1817
•19 July 2021
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of appeal is that Mr Hutton was “erroneously sentenced on a summary of facts that included the particulars of a charge withdrawn by the Crown”.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:
A dealing with Russell Gray concerning a (fictitious) girl aged 0-6 years.
Offence category: 3
Maximum penalty: 7 years’ imprisonment
CRN: 16090004009
Charge 2 Amended
Possession of an objectionable That Aaron Joseph Hutton on or about 4 January publication 2015 at Auckland, without lawful authority or
excuse, had in his possession an objectionable
Section 131A(1) publication, knowing the publication was Films, Videos and Publications objectionable.
Classifications Act 1993
Particulars:
The 417 images located on Mr Hutton’s Seagate
external hard drive.
AS A REPRESENTATIVE CHARGE
Offence category: 3
Maximum penalty: 5 years’ imprisonment
or a fine not exceeding
$50,000
CRN: 16090003994
[12]The Crown withdrew the other charges.
[13] The Crown’s position is that the agreement with Mr Hutton (“the charge bargain”) included a stipulation that he would plead guilty to the amended charges on
the basis of a summary of facts which would contain the particulars of the withdrawn charges. The point being that the sentencing Judge would be able to have regard to those particulars, to the extent relevant, to provide context for the charges to which Mr Hutton had pleaded guilty. Mr Hutton does not accept that the charge bargain included this stipulation.
[14] Mr Hooker advised me, and this was not contested, that when Mr Hutton pleaded guilty before Judge Roberts and the Crown handed up its summary of facts, defence counsel “immediately stood and stated to the Judge that the facts were not agreed to or relevant”. The Judge’s response was to the effect that it was up to counsel to settle the facts prior to sentencing.
[15] Nothing was done between counsel. At the sentencing hearing the Crown proceeded on the basis of the summary of facts. Defence counsel continued Mr Hutton’s protest that particulars relating to events not within the charges pleaded to were neither relevant nor agreed.
[16] Mr Hooker advised me that Judge Roberts was in a dilemma because the sentencing date, 10 September 2020, was Judge Roberts’s last sitting day as a Judge.
[17]Judge Roberts proceeded with the sentencing. In his sentencing notes he said:
[3] The summary of facts on which I understood your plea was provided me. There is some dispute now as to what facts should properly be before me. I had enquired as to whether or not there had been any written requisition as to the summary as it now stands. I am told by the prosecutor that he had received no indication at all although he had, I gather, been generally alert to Mr Hooker’s contention that some of the material relating to subsequent acts on your part should not properly be before the Court.
[18] The Judge then referred to the summary of facts for background material before saying:
[9] The defence take issue with the following material. I consider, however, though that it does serve to paint a full picture of exactly what it was you were looking for.
[19] The Judge took into account the whole of the summary of facts. He made this explicit:
[30] Again, I mention the fact that Mr Hooker would have me disregard any material within the summary outside the period April to July 2015. I disagree however with the general submission that is advanced in this regard.
Discussion
[20] Judge Roberts knew at sentencing that the summary of facts was not accepted by Mr Hutton. The Sentencing Act 2002 prescribes what must happen when the factual basis for a sentencing is disputed:
24 Proof of facts
(1)In determining a sentence or other disposition of the case, a court—
(a)may accept as proved any fact that was disclosed by evidence at the trial and any facts agreed on by the prosecutor and the offender; and
(b)must accept as proved all facts, express or implied, that are essential to a plea of guilty or a finding of guilt.
(2)If a fact that is relevant to the determination of a sentence or other disposition of the case is asserted by one party and disputed by the other,—
(a)the court must indicate to the parties the weight that it would be likely to attach to the disputed fact if it were found to exist, and its significance to the sentence or other disposition of the case:
(b)if a party wishes the court to rely on that fact, the parties may adduce evidence as to its existence unless the court is satisfied that sufficient evidence was adduced at the trial:
(c)the prosecutor must prove beyond a reasonable doubt the existence of any disputed aggravating fact, and must negate beyond a reasonable doubt any disputed mitigating fact raised by the defence (other than a mitigating fact referred to in paragraph (d)) that is not wholly implausible or manifestly false:
(d)the offender must prove on the balance of probabilities the existence of any disputed mitigating fact that is not related to the nature of the offence or to the offender’s part in the offence:
(e)either party may cross-examine any witness called by the other party.
(3)For the purposes of this section,—
aggravating fact means any fact that—
(a)the prosecutor asserts as a fact that justifies a greater penalty or other outcome than might otherwise be appropriate for the offence; and
(b)the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case
mitigating fact means any fact that—
(a)the offender asserts as a fact that justifies a lesser penalty or other outcome than might otherwise be appropriate for the offence; and
(b)the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case.
[21] Crown counsel approached sentencing knowing there was a dispute over the summary of facts but under the impression that what was disputed was the relevance of the disputed portion to sentencing as a matter of law. But, at the sentencing it became apparent that as well as relevance in law there was a non-acceptance of the alleged facts.
[22] Before me, Mr Hooker accepted that he had not complied with r 5A.1(4) of the Criminal Procedure Rules 2012:
If the dispute is not resolved within 10 working days after the guilty plea is entered, the prosecutor and the defendant must notify the court of that fact and seek an indication in accordance with section 24(2) of the Sentencing Act 2002.
[23] Mr Hooker’s submission is that both the Judge and the Crown were aware from the time the prosecutor handed up the summary of facts when the pleas were entered that it was not accepted. The Crown made no attempt to resolve the dispute prior to sentencing.
[24] Regardless, procedural irregularities cannot defeat the interests of justice. The issue for me is whether the sentencing went awry because there was no disputed facts hearing.
[25] The date range in the charge of attempting to deal in people under 18 for sexual exploitation is “between about 13 January 2015 and 20 February 2015”. The summary of facts sets out the factual basis for the charge by reference to what occurred between Mr Hutton and the investigator during this period. It then has the heading “April 2015
communications”. Beneath it there are particulars of separate offending involving another investigator and a different (fictitious) child.
[26] Judge Roberts clearly decided this part of the summary of facts was relevant to his sentencing. He does not specify how it contributed to setting the starting point, or whether it affected his refusal to accept there was a basis for any discounts from the starting point. But it had the potential to do both.
[27] In my view, once it was clear there were material disputes over the facts contained in the summary of facts Judge Roberts was obliged to follow the steps set out in s 24 of the Sentencing Act 2002. He did not, and I cannot remedy that on appeal.
[28] I make one final point. At the sentencing, counsel for Mr Hutton (not Mr Hooker) concentrated her submissions on the relevance at law to the calculation of the sentence of events which occurred after the offending. Mr Hooker’s written submissions also addressed that point. If that were the objection to the summary of facts then I could deal with it on appeal as a matter of law and factor it into a consideration of whether Judge Roberts’s sentence was manifestly excessive. It would, however, be an abuse of process to advance on appeal the argument that the sentencing miscarried because there was a dispute as to the proper factual basis for the sentencing if, really, there is no such dispute. I raised this with Mr Hooker at the appeal hearing. Mr Hooker assured me that there is a genuine dispute as to facts. I rely on that assurance.
Decision
[29] The appeal is allowed. Mr Hutton’s sentence is quashed. His case is remitted to the District Court for re-sentencing.
[30]Matters of bail are for the District Court.
Brewer J
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