Hyland v Police
[2024] NZHC 3768
•10 December 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-645
[2024] NZHC 3768
BETWEEN MATTHEW DAVID HYLAND
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 10 December 2024 Appearances:
S Kim for Appellant
F Ganchi for Respondent
Judgment:
10 December 2024
(ORAL) JUDGMENT OF WILKINSON-SMITH J
Solicitors/Counsel:
Public Defence Service, Auckland Meredith Connell, Auckland
HYLAND v NEW ZEALAND POLICE [2024] NZHC 3768 [10 December 2024]
Introduction
[1] Matthew Hyland appeals against an end sentence of 27 months’ imprisonment imposed on charges of:1
(a)two counts of burglary;2
(b)unlawfully taking a motor vehicle;3
(c)using a document for pecuniary advantage;4
(d)aggravated assault;5
(e)theft (under $500);6
(f)resisting police;7 and
(g)possession of methamphetamine.8
[2]Mr Hyland appeals on the basis that:
(a)the global starting point adopted in the District Court of three years and four months’ imprisonment was too high;
(b)there was a failure to give due weight to the efforts in rehabilitation; and
1 New Zealand Police v Hyland [2024] NZDC 27501.
2 Crimes Act 1961, s 231(1)(a). Maximum penalty: 10 years’ imprisonment.
3 Section 226(1)(a). Maximum penalty: seven years’ imprisonment.
4 Section 228(1)(b). Maximum penalty: seven years’ imprisonment.
5 Section 192(1)(c). Maximum penalty: three years’ imprisonment.
6 Sections 219 and 223(d). Maximum penalty: three months’ imprisonment.
7 Summary Offences Act 1981, s 23(a). Maximum penalty: three months’ imprisonment or $2,000 fine.
8 Misuse of Drugs Act 1975, s 7(1)(a) and (2)(a). Maximum penalty: six months’ imprisonment or
$1,000 fine.
(c)there was a failure to give due weight to Mr Hyland’s personal circumstances leading up to the offending that could be attributed as s 27 factors.
[3] The Crown opposes the appeal and says that the end sentence was not manifestly excessive, although acknowledging that the uplift of 22 months for the offending other than the burglary could be described as stern.
Background
[4] On the afternoon of 30 March 2024, Mr Hyland went to a property in Grey Lynn which was the home of a person known to him. He went inside the house and took the keys to the victim’s vehicle which he then used to take the victim’s car. This led to a charge of unlawfully taking a motor vehicle.
[5] On the morning of 3 April 2024, Mr Hyland was with an associate at a property in Dairy Flat. He was told by the occupier to leave — he did not leave immediately. He took items from the property. In the District Court decision, the Judge recorded that Mr Hyland took a motor vehicle and other items from the property. It is now accepted that was not correct. In fact, Mr Hyland took items which were his own items and put them into the motor vehicle he had unlawfully taken on 30 March and was using at the time. The charge in respect of the 3 April offending was a charge of burglary.
[6] The Judge at sentencing was led to believe that the 3 April offending involved a second unlawful entry and second taking of a motor vehicle — which was then used to steal items from the property belonging to the occupier, while the occupier was unable to stop them. The facts which emerge on appeal are very different. I refer to the formal written statement of the occupier, Mr Tang, in the summary of facts. It seems that the appellant and a female associate were using a barn that they believed to be abandoned. They had padlocked the gate, and their property was in the barn. The occupier, Mr Tang, arrived and told them it was private property. The female associate said she thought it was abandoned. The appellant was intimidating towards Mr Tang but left removing his property.
[7] That puts a very different factual complexion on the events on 3 April. It is barely a burglary — I agree more akin to an unlawful entry although the appellant was unlawfully on the property and was concealing a stolen vehicle there so the elements of burglary can be made out.
[8] Two days later on 5 April 2024, Mr Hyland and the same associate went to another home in Dairy Flat using the car that had been taken on 30 March. Property was loaded into the car including an iPad and mobile phone. As Mr Hyland was about to leave, he was confronted by the victim who had returned home. Mr Hyland gave him back an iPad and mobile phone. The victim was in the process of calling the police. Mr Hyland threatened to drive over him and then drove off. This resulted in a second charge of burglary, and clearly was a burglary aggravated by the threat to drive over the victim.
[9] The following day on 6 April 2024, Mr Hyland was driving the stolen vehicle. Attached to it were numberplates from another vehicle. Mr Hyland went to a petrol station and began filling the vehicle with fuel. A police officer arrived and told Mr Hyland he was under arrest. Mr Hyland pulled away and struggled with the officer for some time. He assaulted the officer several times. Mr Hyland eventually broke free from the officer and tried to run away. The officer tackled Mr Hyland, but Mr Hyland escaped and drove off in the stolen car. He was arrested some distance away. In the vehicle, police found 1.04 grams of methamphetamine.
[10] This offending resulted in charges of: dishonestly using a document, being the numberplates attached to the car; theft of the petrol which Mr Hyland had put into the vehicle but not paid for (although of course he had been in the process of filling up when the police arrived and it is not certain that he did not intend to pay for it); resisting a police constable and aggravated assault; as well as possession of methamphetamine. The aggravated assault, in my view, is the most serious of that set of charges.
[11] Although the Judge referred incorrectly to Mr Hyland taking a motor vehicle on 3 April 2024, the appellant takes no issue with the starting point for the two burglary charges. There is, however, a potential issue given the very different factual scenario.
The District Court decision
[12] The District Court Judge set out the facts and then noted several aggravating factors in respect of the burglaries, being that on each occasion there were multiple offenders — Mr Hyland always had an associate with him. Again, in respect of the 3 April offending, that now has a somewhat different complexion as it appears that Mr Hyland’s female associate was at the property with him thinking the property was abandoned. It is not a situation where he and an associate went to a property intending to steal items. There was a confrontation with occupants, valuable property was stolen (however, as noted, on 3 April in fact no property was stolen), and in each case the offending involved unlawful presences in a dwelling house. Again, I am not sure that is correct in respect of the 3 April offending — which appears to be a barn. The starting point of 18 months’ imprisonment was for both burglaries.
[13] The reference to valuable property being taken on two occasions cannot be correct. That is because the Judge believed incorrectly that a motor vehicle was taken on 3 April. The factual situation is confusing and was quite unclear and I make absolutely no criticism of the sentencing Judge, but it is clear that the sentencing proceeded on an incorrect factual basis. Had the Judge known the real situation with the second burglary, I think the starting point for the burglaries would have been lower. It is difficult to see how such a significant difference in the facts and an absence of any property stolen, let alone a valuable item such as a motor vehicle, could not affect the starting point.
[14] The Judge then turned to the charge of unlawfully taking a motor vehicle and said that the aggravating factor again was unlawful presence in a dwelling house, conflict with an occupant and it was clear that Mr Hyland intended to use the car as his own because he attached false numberplates to it and later filled it with petrol. The Judge found there was a strong inference of premeditation as Mr Hyland knew the owner of the vehicle and apparently targeted him. A starting point of 14 months’ imprisonment was taken.
[15] There is very little information as to how that 30 March offending came about and I am not necessarily convinced that there is a strong inference of premeditation.
But the starting point of 14 months given the factual scenario, namely that there was a confrontation with the occupier and the keys and car were taken from the house, means that the starting point of 14 months’ imprisonment is certainly within range.
[16] The events of 6 April 2024 resulted in a number of charges. The Judge said that the lead charge was the aggravated assault and I agree. That carries a maximum of three years’ imprisonment and the Judge noted that it does so for good reason — to deter people from attempting to avoid the consequences of their actions, which is precisely what Mr Hyland did. It is aggravated by the fact that it involved tussles with the police officer as well. The Judge regarded the gravity of that offending as relatively serious. When told he was under arrest Mr Hyland engaged in an extended struggle with the police officer before successfully evading physical arrest. The Judge took a starting point of 10 months’ imprisonment.
[17] The Judge found that the dishonest use of a document by putting false numberplates on the motor vehicle was clearly premeditated and put there to deceive people as to the true ownership of the vehicle. For that and the other two charges relating to the events 6 April, the Judge applied an uplift of four months’ imprisonment.
[18] I agree with the Crown that this is a stern uplift and that some of the matters for which there was an uplift are related particularly to the unlawful taking, being the false numberplates put on the car.
[19] The Judge said that the lead sentence and uplifts would lead to a combined starting point of 46 months’ imprisonment (just over three years 10 months), but that standing back and looking at the totality of the offending, there was a direct connection between the taking of the motor vehicle and the offences on 6 April. The burglaries occurred in between. The dishonestly taken motor vehicle was used to facilitate the burglaries. The Judge reduced the starting point to 40 months (three years and four months) to reflect totality.
[20] The Judge then turned to personal aggravating factors, noting that Mr Hyland has an extensive history of dishonesty offending throughout his adult life. Most
recently he was sentenced for five offences of dishonesty in August 2023. He also has a history of drug offending. An uplift of 10 per cent was applied to reflect his previous convictions.
[21] Turning to mitigation, the Judge applied a 25 per cent discount for guilty plea, although noting the guilty pleas were not entered at the first opportunity or even very promptly.
[22] The Judge recorded the defence submission that a further large reduction should be made to reflect what is described as an addiction to methamphetamine. The Judge said he had read with care the lengthy letter Mr Hyland had written to the Court. Mr Hyland described being introduced to methamphetamine at an early age and having a drug dependency for most of his adult life. He then went on to recall that in 2023 he was drug free and living a constructive life. In January 2024, Mr Hyland’s mother died, and Mr Hyland said he coped with this by returning to drug use. He said that he resumed offending in order to get money to cover the costs of his mother’s funeral and associated events. The Judge said that, significantly, Mr Hyland did not suggest that the offending for which he was being sentenced was to fund a drug habit, rather it was specifically to obtain money to meet the costs associated with his mother’s farewell.
[23] The Judge said that while it may be that Mr Hyland’s judgment was clouded by drugs when committing the offences, that was something the Judge was explicitly prohibited from taking into account as a mitigating factor by s 9(3) of the Sentencing Act 2002. No reduction was made on account of drug use or other personal factors.
[24] The Judge accepted from the letter and pre-sentence report that Mr Hyland was genuinely remorseful for the harm done to victims and was motivated to engage in rehabilitation. A credit of 10 per cent was applied for those factors. That led to an end sentence of 30 months’ imprisonment.
[25] The Judge then took into account the time spent on electronically monitored (EM) bail which was calculated as being 130 days. The Judge reduced the sentence
by a further three months, or approximately 90 days, which is a relatively generous approach.
[26] That lead to an end point of 27 months’ imprisonment (two years and three months) which was the sentence imposed on each of the burglaries. Concurrent sentences were imposed on the other charges: on dishonestly taking a motor vehicle, 12 months’ imprisonment; on aggravated assault, 10 months’ imprisonment; on the charge of dishonestly using a document, four months’ imprisonment; and on the charges of resisting arrest, theft, and possession of methamphetamine, one month’s imprisonment on each. Reparation of $183.01 was ordered.
The approach on appeal
[27] An appellant may appeal against sentence as of right under s 244 the Criminal Procedure Act 2011.
[28] An appeal against sentence must be allowed if an appellate court is satisfied that for any reason there is an error in the sentence imposed on conviction and that a different sentence should be imposed.9 In any other case the appellate court must dismiss the appeal.10 Sentencing is not a science, and an appellate court will not intervene unless the end sentence is outside the range available to the sentencing judge.11 An appellate decision is focused on the end result rather than the process by which the end sentence was reached.12
[29] When allowing an appeal on the basis that there was an error in the sentence imposed the appellate court may: set aside the sentence and impose another sentence (whether more or less severe) that it considers appropriate; vary the sentence or any part of the sentence or any condition of sentence; or remit the sentence to the court that imposed it.
9 Criminal Procedure Act 2011, s 250(2).
10 Section 250(3).
11 Palmer v R [2016] NZCA 541 at [17] citing Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].
12 Kumar v R [2015] NZCA 460 at [81].
Discussion
[30] The appellant submits that the Judge’s finding in respect of the 30 March offending that there was an aggravating factor of unlawful presence in a dwelling house was incorrect as there was no reference to unlawful presence or conflict with the occupant in the agreed summary of facts.
[31] The appellant also takes issue with the Judge’s finding that there was an inference of premeditation, saying that the victim and Mr Hyland knew each other and there is no other information in the summary of facts as to the circumstances that led to Mr Hyland being present at the victim’s property or for how long he was there. The appellant submits it is highly speculative that Mr Hyland went to the victim’s property with premeditation to take his vehicle and then to further offend with it. It is submitted that the offending was more of an opportunistic event as he saw the opportunity to take the key and vehicle whilst visiting the victim’s house. This then led on to other offending as it provided further opportunity to offend, but counsel for the appellant submits there is no foundation to infer that from the beginning there was a plan to engage in subsequent offending.
[32] It is submitted that by taking what is described as incorrect facts into account as aggravating features, the Judge set the starting point too high. It is said that a relevant factor is that a single vehicle was taken for about one week, however, it was returned, and no other damage was identified.
[33] In respect of totality, the appellant submits that the offending was spree offending and there should have been a greater recognition of the connection between the charges and a greater reduction for totality, or alternatively, the sentence should have been structured differently so that a starting point was taken on the lead charges of burglary and an uplift provided for the remaining charges. It is submitted that by not giving due weight to totality, the overall starting point of 40 months was wholly disproportionate to the gravity and features of the offending which in turn led to a manifestly excessive sentence.
[34] The appellant sets out rehabilitation efforts made by Mr Hyland, including that he had been on EM bail at a rehabilitation facility for 10 weeks. He had only one
minor breach of his EM bail, described as allowing his tracker to go flat, and was engaging extremely well with the program. The appellant says that he was also engaging with the Bridge Program and had been accepted into the stage two residential program. It is said that Mr Hyland was taking positive steps and reconnecting with his whānau including his son and sister. The appellant’s counsel says that he had made a considerable step on his journey of recovery from addiction, and this should have been acknowledged. The appellant complains that the sentencing Judge only referred to the fact that Mr Hyland was motivated to engage in rehabilitation and failed to give due weight to the actual progress made by the time of sentencing. A separate discount of 10 to 15 per cent for rehabilitative efforts would have been appropriate and warranted for the positive progress and efforts Mr Hyland had made, his counsel submits.
[35] There is no challenge to the finding that there was an insufficient nexus between the offending and addiction issues, but the appellant submits that his difficult background did make him more prone to offending and more vulnerable when he faced further trauma, namely the death of his mother. I do see some general nexus because Mr Hyland’s very challenging upbringing including a history of state care and being a survivor of abuse in state care, meant his options when faced with further trauma and a perceived need for money were more limited than they might otherwise have been.
[36] It is submitted that there were extenuating circumstances which led to the relapse and the spree of offending, namely the fact that Mr Hyland’s mother died, he discovered her body unexpectedly, and that trauma caused him to relapse into his drug addiction and offending behaviour. Further, the costs of the funeral and associated costs put Mr Hyland under immense financial pressure. The Judge, it is said, erred by not giving weight to personal circumstances and by not affording any credit.
[37] The appellant also relies on information provided pursuant to s 27 of the Sentencing Act, being a letter and matters raised in the pre-sentence report relating to Mr Hyland’s childhood and childhood abuse. None of these factors were given consideration during sentencing. The appellant referred to the pre-sentence report which recommended a sentence short of imprisonment commuted to home detention.
[38] I have seen and read a letter by Mr Hyland provided for the appeal in which he references trauma in his childhood and youth as a survivor of abuse in state care.
[39] It is submitted that if some or all of the grounds for appeal are accepted, the end sentence would be a short term of imprisonment permitting the Court to consider a non-custodial sentence. The appellant accepts that a reduction of three months’ imprisonment, which is what is sought, would usually be regarded as tinkering, however, in this case it is submitted that it is a material difference as it will be the difference between an end sentence of under or over two years’ imprisonment which would result in potential consideration of a non-custodial sentence.
[40] It is submitted that an EM sentence was the least restrictive available sentence and appropriate in the circumstances because Mr Hyland was making considerable progress at his rehabilitation program and had an admission date the week following sentencing for residential treatment. Corrections supported and recommended a sentence of community detention with intensive supervision to allow Mr Hyland to maximise the rehabilitative efforts and success he had at the program he was undertaking, allowing a smooth transition to the Bridge Program. It is submitted this would have also been a positive outcome in that it would allow Mr Hyland to regain further contact with his son and to attend his mother’s unveiling.
[41] The respondent submits that the District Court did not err, and that the global starting point was within range. The Crown accepts that the uplift of 22 months’ imprisonment for the non-burglary charges could be seen as stern but when assessed in the context of a low starting point of 18 months for the two burglary charges, the Crown says it has not led to an overall starting point that is manifestly excessive.
[42] The Crown sets out a number of cases including Arahanga v R where it was said that:13
Dwelling house burglaries at the relatively minor end of the scale tend to attract a starting point of approximately 18 months’ to two years and six months’ imprisonment.
(footnotes omitted).
13 Arahanga v R [2012] NZCA 480, [2013] 1 NZLR 189 at [78].
[43] The Crown submits that for a single charge of burglary the starting point is 18 to 30 months’ imprisonment. Mr Hyland was convicted of two residential burglaries in close proximity that involved confrontations with occupants. The Crown submits that a starting point in the range of 24 months’ imprisonment was available for the two burglaries. The problem with that submission is that the facts relating to the second burglary are very much less serious than the facts which the sentencing Judge proceeded on.
[44] On the charge of unlawfully taking a motor vehicle, the Crown relies on the guidance set out by Downs J in Wood v New Zealand Police where it was said:14
[24] All this suggests a single unlawful taking charge can give rise to a starting point of at least 18 months’ imprisonment, if the offence has a significant aggravating feature or features; see Gurnick. If a defendant unlawfully takes a car and attempts to evade Police in a chase, typical global starting points range between 18 and 20 months’ imprisonment; see O’Sullivan, Ratahi and Edwards. But, an especially bad constellation can attract more; see Bell. If a defendant unlawfully takes several cars, or takes one and engages in other similar dishonesty, a starting point of two and a half years’ imprisonment or more may follow; see Gibbon, Taki and Singh.
[45] The Crown submits that the Judge was able to draw an inference from the summary of facts that Mr Hyland was unlawfully on the property when he took the victim’s keys. I note that even if Mr Hyland entered the property lawfully once he formed an intention to commit a crime on the property, the situation changes. There must be an available inference that the victim did not give Mr Hyland permission to be on his property for the purpose of stealing his motor vehicle. This was not an unlawful taking with significant aggravating features justifying an 18-month starting point, but the 14-month starting point reflects that the keys were taken from the victim’s home, there was a confrontation of some nature, and the car was then taken.
[46] A combined discount of 10 per cent was allowed for rehabilitation and remorse. Mr Hyland has an extensive criminal history for dishonesty offending. The combined discount of 10 per cent for rehabilitation and remorse, coupled with a full 25 per cent for guilty plea in circumstances where the plea was not entered at the earliest
14 Wood v New Zealand Police [2018] NZHC 1629.
opportunity, or even promptly, must be, in my view, sufficient to recognise the rehabilitative efforts made by Mr Hyland.
[47] The s 27 factors were raised but, as the Crown says and as the Judge found, there does not seem to be any real nexus between the offending and those factors other than in an extremely general way. This offending seems to be essentially financially motivated, fuelled by disinhibition caused by drug use which is not able to be taken into account as a mitigating factor. Drug use or intoxication does not mitigate or excuse offending. Addiction issues that drive offending may be taken into account as relevant background if there is a causal nexus to the offending. It can also be relevant to rehabilitation and future risk because addiction can be treated, and successful treatment might reduce the risk of further offending. The mere fact, however, that someone is under the influence of drugs and alcohol to the extent that they are less inhibited or behave in a way they would not do when sober is not a mitigating factor and may not be treated as such.
[48] The Judge was alive to Mr Hyland’s rehabilitative efforts and opportunities and gave consideration to the factors that needed to be balanced. There was an error in some of the facts set out, and the most pressing matter for me is to consider whether that error in the facts has led to a sentence that is manifestly excessive.
[49] Mr Hyland has been subject to rehabilitative sentences previously and they have not been effective. It may well be that he is at a stage where he is more willing to engage in rehabilitation, but it is simply impossible to know given his history of apparently remaining crime free for a period and then relapsing. The offending was carried out over a number of days and involved, in the end, assaults on police as well as one burglary involving property being taken and unlawfully taking and using a stolen car — with sufficient premeditation that numberplates were changed.
[50] Since 2009 Mr Hyland has amassed over 70 convictions, including convictions for breaching community-based sentences. The current sentence, however, is the lengthiest term of imprisonment that he has been sentenced to. It is in no way a crushing sentence and given the volume of offending, I would find there was no material error in the sentence imposed or that a different sentence should be imposed
except for the very much less serious factual background to the 3 April offending. It puts a different light on that offending. An appeal is not an opportunity to judge shop and effectively obtain a second chance at a better result. But in this case, the Judge proceeded, through no fault of his own, on an incorrect factual basis which was not corrected at the sentencing hearing. Had the Judge been aware of the true nature of the second burglary, I think it is inevitable that the overall end sentence would have been lower.
Result
[51] Rather than engage in the process of deciding what structure should have been taken or could have been taken, I look at this matter afresh and come to the view that the appeal should be allowed. In my view, the least restrictive sentence would be an end sentence of 24 months’ imprisonment, taking into account the less serious factual scenario involved in the 3 April offending.
[52] I reduce the end sentence by three months to 24 months’ imprisonment. That will remain imposed on the burglary charges, with the other sentences unchanged. I grant leave for the appellant to apply for the sentence to be commuted to a sentence of home detention if a suitable address can be obtained, and by suitable address I expect that will be a residential rehabilitative facility.
[53] I would like to record that appellant’s counsel Mrs Kim did a very good job on this because when I came into the courtroom, I did not expect to be allowing this appeal.
Wilkinson-Smith J
0
4
0