Jay v The King

[2025] NZHC 145

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-000565

[2025] NZHC 145

BETWEEN

HENRY JAY

Appellant

AND

THE KING

Respondent

Hearing:

10 February 2025

Appearances:

M Ryan for Appellant

H Brown for Respondent

Judgment:

12 February 2025

JUDGMENT OF HARVEY J

This judgment is delivered by me on 12 February 2025 at 4 pm.

…………………………………………….

Deputy Registrar

Counsel/Solicitors:

Mark Ryan, Barrister, Auckland

Kayes Fletcher White Limited, Office of the Crown Solicitor, Manukau

JAY v R [2025] NZHC 145 [12 February 2025]

Introduction

[1]    On 2 October 2024, Judge B A Gibson sentenced Henry Jay to five years’ imprisonment after he pleaded guilty to representative charges of threatening to kill,1 injuring with intent to injure,2 assault with a weapon3 and two assaults against a person in a family relationship.4 He also pleaded guilty to a charge of strangulation.5 Mr Jay now appeals his sentence on the basis that it is manifestly excessive and that insufficient adjustments were made for his guilty pleas, remorse and rehabilitation.

[2]    The Crown opposes the appeal arguing that the appropriate discounts, where relevant, were correctly applied. The sentence was therefore not manifestly excessive.

District Court decision

[3]The Judge summarised the offending:6

[3]        The offending took place some time ago, about four years ago, when you were about 24 years of age. It involved your partner at the time. There were numerous offences committed against her. The summary of facts, which you have accepted by pleading guilty, relays a whole series of assaults on your partner, both in her home and also in vehicles when she was travelling with you when arguments would sometimes breakout. Often, following an assault, she would be left on the side of the road, and in one case, without her phone. You shot at her with a paintball gun and she was hit in the eye. She suffered  a bruise also on another occasion when you shot her with a paintball gun.

[4]        The assaults were serious. The most serious one was the strangulation. The summary notes that you were at her home in Weymouth. Also present was another man. An argument erupted between the two of you. That escalated to a physical altercation where she ended up on her stomach and she was crawling along the hallway by the front door. You straddled her, placed both your hands around her neck from behind and squeezed with enough pressure to cut off her airflow. When you felt her body was beginning to relax and she was about to slip into unconsciousness, you let her go, allowing her to breathe, but you then repeated that action five times, resulting in her nearly becoming unconscious over the course of several minutes. Eventually she was able to crawl or make her way to a bedroom where she lay down on a bed, but you followed and continued to strangle her while she was on the bed. The summary notes she suffered redness to her neck and bloodshot eyes for about one week.

1      Section 306. Maximum penalty: seven years’ imprisonment.

2      Section 189(2). Maximum penalty: five years’ imprisonment.

3      Section 202C.  Maximum penalty: five years’ imprisonment.

4      Section 194A.  Maximum penalty: two years’ imprisonment.

5      Crimes Act 1961, s 189A(b). Maximum penalty: seven years’ imprisonment.

6      R v Jay [2024] NZDC 24202.

[5]        Most cases involving strangulation normally involve one effective assault where a person is either strangled into unconsciousness, which is the most serious type of strangulation case, but here, what happened was you repeatedly strangled the complainant, no doubt emphasising to her that you had the power of life and death over her by allowing her to regain the ability to breathe again and as soon as she had done so, starting to strangle her again. That is consistent also with the charge of threatening to kill her, which was laid as a representative charge, where when an argument occurred in a car, you threatened to put a bullet in her head.

[6]        The summary of facts is too long for me to read aloud at sentencing, all of the facts, but they are very concerning and show the very high degree of control and power you were trying to exercise over the complainant.

[4]    The Judge adopted an initial starting point of three and a half years’ imprisonment for the strangulation charge. This was uplifted to six years and 10 months’ to account for Mr Jay’s other charges, his history of violent offending, and because the current offending had occurred while on bail for similar domestic violence. A 10 per cent reduction was applied for Mr Jay’s guilty pleas; noting that they were made approximately four months after he was charged and four days before trial. He accepted that several of the charges had been “withdrawn” but found that this was due to the Crown adopting representative charges. The Judge held that the alterations to the charge notice did not materially alter Mr Jay’s overall criminality.

[5]    The Judge acknowledged the s 27 and pre-sentence reports and was satisfied that they identified a causal nexus between Mr Jay’s background and his offending. A 15 per cent reduction was given. As Mr Jay’s remorse was included in the guilty plea reduction, no further discount was applied. A reduction for rehabilitation was also refused as Mr Jay’s history “really speaks against any efforts to rehabilitate [himself]”. Applying the 25 per cent reduction to the uplifted starting point of six years and 10 months’, an end sentence of five years’ imprisonment was then imposed.7

Approach on appeal

[6]    The approach to sentence appeals is well-settled. The Court must allow the appeal if satisfied that there has been an error in the sentence imposed and that a

7      As noted by Ms Brown, on behalf of the Crown, this end sentence was two and a half months lower than it would ordinarily have been because Judge Gibson conflated Mr Jay’s personal aggravating factors with aggravating features of the offending going to the starting point, and because Judge Gibson further rounded down the sentence to reach an even end sentence of five years’ imprisonment.

difference sentence should be imposed.8 The sentence must be shown to be manifestly excessive or wrong in principle.9

Mr Jay’s submissions

[7]    In summary, Mr Ryan did not contest the starting point, uplifts or the reduction for Mr Jay’s personal background. However, he submitted that the Judge should have provided discounts for Mr Jay’s genuine remorse and the efforts at rehabilitation of around 15 percent, and a larger reduction of between 15-20 percent should have been provided for the guilty pleas rather than the “miserly” discount that was given. In failing to do so, the result according to counsel was a manifestly excessive sentence.

[8]    On the issue of guilty plea discount, Mr Ryan disputed the Crown submission that Mr Jay’s definitive response came very late, referring to the two-and-a-half-month period where discussions had commenced with the prosecution in February 2024. In addition, counsel contended that the Judge erred in concluding that the amended charges and summary of facts did not reduce Mr Jay’s overall criminality. Mr Ryan argued that five of the original charges were withdrawn and were not encompassed by representative charges. Further, counsel submitted that prejudicial material and alleged facts were removed from the second summary of facts, resulting in, undeniably, lower overall criminality. For example, Mr Ryan highlighted that the second summary of facts recorded the strangulation as taking place over several minutes rather than several hours, as was originally alleged.

[9]    Counsel contended that the Judge erred by “bundling” remorse with Mr Jay’s guilty pleas, citing Moses v R along with Hessell v R in support.10 He argued that Mr Jay had expressed genuine remorse in his letter to the Court and his pre-sentence report, and that similar sentiments were echoed in his s 27 report and a letter written by a close friend. In addition, Mr Ryan underscored that while the Judge observed that Mr Jay’s history of offending spoke to his perception of remorse, he did not expressly state that the remorse was not genuine.

8     Criminal Procedure Act 2011, s 250(2).

9     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[35].

10   Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [24]; and Hessell v R [2010] NZSC 135,

[2011] 1 NZLR 607 at [64].

[10]   As to rehabilitation, counsel emphasised that Mr Jay undertook all the necessary programmes that were available to him in custody and had sought to participate in restorative justice, even though this did not eventuate. Mr Ryan argued that the cumulative effect of all these factors should have been recognised by the Judge and that a combined reduction of 15 per cent for remorse and rehabilitation would have been appropriate. Finally, counsel underscored that this would have then resulted in a reduced end sentence and that such a reduction would not amount to “tinkering”.

Crown submissions

[11]   Ms Brown submitted that the Judge did not err in providing a 10 per cent reduction for Mr Jay’s guilty pleas. She highlighted that counsel did not express a willingness to plead to lesser charges until plea negotiations began on 20 May 2024, approximately 15 months after charges were first laid on February 2023 and only one month before trial. Counsel contended that the amendments to the charges and summary of facts did not alter the implications for plea in any significant way, and that the factual basis for Mr Jay’s offending remained largely unchanged.

[12]   It was also open to the Judge to remain unpersuaded by Mr Jay’s expressions of remorse, particularly in light of his recidivist violent offending.11 Further, regarding Mr Jay’s rehabilitation efforts and attempt to participate in restorative justice, counsel submitted that a five per cent reduction would have been sufficient given the limited nature of the rehabilitation — essentially the completion of nine workbooks.12

[13]   Ms Brown contended that an end sentence of five years’ imprisonment, in light of the overall offending, was not manifestly excessive. She stressed the importance of denunciation and deterrence as a purpose of sentencing in family violence cases, and emphasised that Mr Jay’s offending took place over two and a half years, while on bail, and after his failure to engage in rehabilitation following previous sentences. Counsel argued that higher uplifts were available for Mr Jay’s other charges, relevant criminal history and offending while on bail. The Judge rounded down Mr Jay’s

11 Counsel cited the following cases in support: R v Ngamo [2009] NZCA 512 at [9]; Chapman v Police [2022] NZHC 2585 at [22]–[26]; and Toluono v Police [2017] NZHC 809 at [26].

12    Counsel cited cases in which larger reductions were granted but only for more substantial efforts  at rehabilitation: R v Nuku [2018] NZHC 2609 at [34]–[36]; Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [159]–[162]; and Chien v R [2024] NZCA 379 at [19] and [32]–[35].

sentence and applied his aggravating personal factors at the wrong stage of sentencing; which when combined, resulted in a lower sentence by two and a half months.

Discussion

[14]   On the guilty plea issue, whether negotiated pleas reset the clock when assessing the appropriate credit will be a matter of assessment for the sentencing judge and will depend upon the circumstances of each case.13 As discussed above, counsel disagreed as to the nature of the plea negotiations. Mr Ryan submitted that they began in February 2024, leading to the agreed proposal in May 2024, which was then accepted shortly before trial in June. In contrast, Ms Brown contended that although Mr Jay’s counsel contacted the Crown in March 2024, they did not propose an offer or suggest a willingness to plead to lesser charges, and instead sought to ascertain the Crown’s perspective on what an offer might look like while they reviewed the file.

[15]   Ultimately, looking to the purpose of a guilty plea reduction, the agreed pleadings were entered only four days before trial, which removed many of the relevant benefits of an early guilty plea. The cause of this delay seemingly falls on the appellant. Whether it was February or March 2024, the approximate one-year delay between the laying of charges and counsel reviewing the file with a view to resolution appears to be the primary cause of the delayed guilty pleas. Furthermore, on either counsel’s account, a concrete offer or proposal was not tendered by the appellant’s counsel until approximately one month before trial.

[16]   These delays must also be viewed in light of the significance of the eventual amendments to the charges and summary of facts, assessed within the context of the overall offending. After reviewing the differences between the original and amended charges and summary of facts, it is arguable that the changes did lessen the overall criminality of Mr Jay’s offending. As foreshadowed, the reduced duration of the strangulation (being several minutes rather than several hours) is notable.

[17]   However, overall, while the reduction in criminality is not completely insignificant, nor is it sufficient to justify a significant alteration to the end sentence.

13     Karetu v R [2024] NZHC 207 at [14].

The Judge was correct to conclude that many of the charges withdrawn were encompassed by the representative charges. The factual basis of Mr Jay’s offending remained largely the same and most of the amendments were reasonably minor, for example, whether Mr Jay had worn protruding rings. Moreover, despite the lesser duration, Mr Jay still pleaded guilty to repeatedly strangling the complainant five times causing her to nearly become unconscious. As the Judge noted, this repetition, not solely the duration, contributed to the seriousness of the lead offending.

[18]   Accordingly, due to the delays in pleading and the relatively minor nature of the eventual amendments, I agree with the Judge that a full guilty plea discount was not available. Although a higher reduction for Mr Jay’s guilty plea could have been granted, perhaps up to 15 per cent, the 10 per cent reduction granted by the Judge was available given the circumstances of this case.14

[19]   As to remorse and rehabilitation, the Supreme Court in Hessell made it clear that in suitable circumstances separating out discounts was appropriate:15

[64] This approach does not fit in well with the terms of the 2002 Act, which treats “any remorse shown by the offender” as a mitigating factor that is separate from the guilty plea. The statutory requirement that remorse be “shown” adequately addresses the Court of Appeal’s concerns. Remorse is not necessarily shown simply by pleading guilty. Sentencing judges are very much aware that remorse may well be no more than self-pity of an accused for his or her predicament and will properly be sceptical about unsubstantiated claims that an offender is genuinely remorseful. But a proper and robust evaluation of all the circumstances may demonstrate a defendant’s remorse. Where remorse is shown by the defendant in such a way, sentencing credit should properly be given separately from that for the plea.

[20]   While expressions of remorse need not be extraordinary, they must go beyond bare acceptance of guilt. Neither the remorse expressed in Mr Jay’s letter nor his efforts at rehabilitation are particularly significant. In particular, as Downs J noted in Toluono v Police, Mr Jay’s letter to the Court is typical of the material received from defendants awaiting sentence.16 Even so, Mr Jay did go beyond bare acceptance of guilt and typical expressions of remorse by completing nine workbooks and offering to participate in restorative justice. A recognition of these efforts in the realm of a five

14 This also reflects the principle that the sentencing judge is best placed to assess the value of a guilty plea: see Clark v R [2020] NZCA 641 at [23]; Moheebi v R [2020] NZCA 343 at [33]–[34]; and Hessell v R, above n 10, at [62].

15 Hessell v R, above n 10 (footnote omitted).

16 Toluono v Police, above n 11, at [26].

per cent reduction may have been warranted, particularly given the difficulties of demonstrating a commitment to rehabilitation while held on remand.

[21]   Nevertheless, as supported by the authorities cited by Ms Brown, the Judge was entitled to view Mr Jay’s evidence of remorse in light of his recidivist offending, his previous convictions for domestic violence, and the pre-sentence report’s finding that his risk of re-offending was high. In addition, Mr Jay pleaded guilty to domestic violence offending committed while on bail for other domestic violence charges. This suggests that it was open to the Judge to decline a reduction for remorse in particular.

[22]   Even if the Judge had erred by failing to provide adequate reductions, at most this would have resulted in an additional five to 10 per cent end sentence reduction: any rehabilitation recognition would have been limited to a modest reduction of five per cent, and the same is true for any increase to Mr Jay’s guilty plea reduction. This would have led to an end sentence that was two to six months lower than that imposed. I am satisfied that this would not have rendered the Judge’s five-year imprisonment sentence manifestly unjust as I agree with the Crown that higher uplifts could have been applied for the associated offending or for Mr Jay’s personal aggravating factors.

[23]   Further, stepping back, an end sentence of five years’ imprisonment, in light of the overall offending, is not manifestly excessive, particularly given the need to uphold the purposes of denunciation and deterrence in cases of serious family violence.

Decision

[24]The appeal is dismissed.

Harvey J