R v H - [2023] NZHC 626

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,

OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2022-096-856

[2023] NZHC 626

THE KING

v

H

Hearing: 27 March 2023

Appearances:

G J Burston and M E Page for the Crown K R Smith for the Defendant

Date:

27 March 2023

SENTENCING OF COOKE J

[1] Mr H you are now to be sentenced as a result of your guilty plea to one charge of aggravated burglary as a consequence of your guilty plea following the acceptance of a sentencing indication.1 As you know you are to be discharged without conviction. But it is necessary to explain the full analysis on how that decision is reached, including the sentence you would have received if not discharged.

[2] I will first outline the facts of the offending. Next I will address the sentence that the Court would have imposed if you were not discharged without conviction.

1 Crimes Act 1962, ss 232(1) and 66; maximum penalty 14 years’ imprisonment.

R v H [2023] NZHC 626 [27 March 2023]

And then finally I will address why a discharge without conviction is the sentence appropriate.

Facts of the offending

[3] At the time of the alleged offending or the offending you were 18 years of age. Notwithstanding your schooling, and your promise as a sportsman, you became involved in criminal activity.

[4] On 10 January 2022 you and Bradley Harper-Brown were selling MDMA or ecstasy through connections with the Mongrel Mob. Bradley Harper-Brown was a newly patched member of the Mob. You were not a member.

[5] The two of you arranged to meet Akynn Eady to sell him drugs. Mr Eady and his associates were members of the Crips gang. When you met up in the Hutt Valley near the Haywards Interchange Mr Eady and his associates produced weapons and robbed Mr Harper-Brown and yourself.

[6] Mr Harper-Brown then began to plan retaliation. You and Mr Harper-Brown obtained Mr Eady’s address in Upper Hutt from an associate of yours.

[7] At 8.30 in the evening you then met up with Mongrel Mob member Justin McGoldrick at the Z Mana Esplanade petrol station. You discussed what you would do. You then travelled to Mr Harper-Brown’s address and were joined by another Mob member Teimana Tawhai. You then drove to an unknown location where a 12 gauge shotgun wrapped in a white sheet was obtained. You then returned to Mr Harper- Brown’s address at approximately 9.35 pm.

[8] You then contacted Mr S and asked Mr S to return to you your Toyota vehicle. Mr S duly did so at approximately 10.00 pm. The shotgun was placed in the rear of the Toyota. After dropping off another vehicle the group then made their way to Mr Eady’s address in the Toyota, after first stopping off at Z Energy on Mana Esplanade. Mr S was…

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 R v H

Details

AGLC: R v H [2023] NZHC 626
Case: [2023] NZHC 626
Decision Date: 27 March 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Wellington Registry, the case of The King v H was heard, where Mr H was sentenced for a charge of aggravated burglary, resulting from his guilty plea. The court considered the appropriate sentence, which would have been one year of imprisonment, but ultimately decided on a discharge without conviction due to the unique circumstances of the case. Mr H, at the time of the offence, was 18 years old and was involved in criminal activities, including drug dealing with connections to the Mongrel Mob. The court assessed the seriousness of the offence, Mr H's role in it, and the consequences of a conviction, ultimately concluding that a discharge without conviction was the most appropriate sentence.

The court considered various factors, such as Mr H's involvement in planning the response to a robbery, supplying the address of the victim, and arranging for his vehicle to be used. The court also took into account Mr H's age, lack of a criminal record, remorse, and cooperation with the investigation. The court further assessed the direct and indirect consequences of a conviction, finding that Mr H's new life in Australia, where he had established employment and was pursuing a promising sporting career, would be jeopardized if he were to return to New Zealand to serve a sentence. The court concluded that the consequences of a conviction would be out of all proportion to the gravity of the offence.

In light of these considerations, the court granted Mr H a discharge without conviction, and ordered name suppression to protect his identity and the effectiveness of the discharge. This decision was based on the court's belief that there is a public benefit in preventing young people from entering the criminal justice system and prison systems, and that this case was one in which a discharge without conviction was most effectively applied.

Orders