R v Hambly - [2023] NZHC 2506

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-090-003700

[2023] NZHC 2506

THE KING

v

NICHOLAS JOHN EDWIN HAMBLY

Hearing: 7 September 2023

Counsel:

PR McNabb for Crown

VJ Feyen and HSO Aitken as standby counsel

Judgment:

7 September 2023

SENTENCING REMARKS OF DOWNS J

Solicitors/Counsel:
Crown Solicitor, Auckland. VJ Feyen, Auckland.
HSO Aitken, Auckland.

R v HAMBLY [2023] NZHC 2506 [7 September 2023]

Introduction

[1] I begin by welcoming Mr Hambly’s family. I thank you for your participation today in what I acknowledge will be a difficult time.

[2] Nicholas Hambly, you are for sentence on four charges: kidnapping;1 injuring with intent to injure,2 causing grievous bodily harm with intent to cause grievous bodily harm;3 and threatening grievous bodily harm.4 The most serious of these charges is the third—causing grievous bodily harm with intent to do so. This offence carries a maximum penalty of 14 years’ imprisonment.

[3] You were found guilty by a jury earlier this year. I was, of course, the trial Judge.

The facts

[4] In July 2020, you asked the victim, Shane Walker, to house-sit for you while you went away. He did so between 13 and 17 July. When you came home, you discovered some of your property missing. You believed Mr Walker had taken the property, had been complicit in its taking, or at least had allowed it to be taken. You were very angry. Between 17 and 21 July 2020, you repeatedly called and messaged Mr Walker demanding to know where your property was, and threatening harm if it were not returned. I give one example. At 3.42 on the afternoon of 20 July, you sent Mr Walker this message: “You fuck with me I break your legs”. I observe you were smiling as I said that.

[5] Mr Walker was estranged from his parents due to his drug addiction and associated lifestyle. He had nowhere to go. He ended up at the home of your co- defendant, who was acquitted at trial.

[6] On 21 July 2020, you asked Mr Walker to meet him at the co-defendant’s home. Mr Walker came as requested. You were already there with the co-defendant. A third

1      Crimes Act 1961, s 209; maximum penalty, 14 years’ imprisonment.
2      Crimes Act, s 189(2); maximum penalty, five years’ imprisonment.
3      Crimes Act. s 188(1); maximum penalty, 14 years’ imprisonment.
4      Crimes Act, s 306; maximum penalty, seven years’ imprisonment.

person, Michael Ford, was also present. I pause to record this before continuing the narrative: Mr Ford pleaded guilty to the same offences you defended at trial.

[7] You handed Mr Walker a cigarette and asked him to step inside. He did so. Shortly thereafter Mr Ford punched Mr Walker in the face with sufficient force to knock him from the couch. You were found guilty, as a party, of injuring Mr Walker with intent to injure in relation to what was a powerful blow.

[8] You told…

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 Hambly

Details

AGLC: R v Hambly [2023] NZHC 2506
Case: [2023] NZHC 2506
Decision Date: 7 September 2023

CaseChat Overview and Summary

The case of R v Hambly involved Nicholas Hambly who was found guilty on four charges: kidnapping, injuring with intent to injure, causing grievous bodily harm with intent, and threatening grievous bodily harm. The most severe charge, causing grievous bodily harm with intent, carries a maximum penalty of 14 years imprisonment. The court heard that Hambly had arranged for the victim, Shane Walker, to meet him under false pretenses, where he and an accomplice, Michael Ford, assaulted Walker severely, leading to a ruptured spleen and significant psychological trauma. Ford had previously pleaded guilty and was sentenced by another judge.

The legal issues before the court included determining the appropriate starting point for sentencing, considering both aggravating and mitigating factors, and deciding on the concurrent nature of the sentences. The court acknowledged the premeditated nature of the crime, the significant physical and psychological harm inflicted on the victim, and Hambly’s role as the orchestrator of the attack. Mitigating factors included Hambly’s clean criminal record prior to this offence and aspects of his personality that may have contributed to the offending. The court also considered Hambly’s lack of genuine remorse and his obstructive behaviour during the trial.

In its reasoning, the court adopted a starting point of eight years, adjusted for the specific aggravating and mitigating factors. The court noted Hambly’s premeditated and vengeful actions, the serious physical injury inflicted, and his limited cooperation during sentencing. It deducted 15 percent from the starting point, resulting in a sentence of six years and six months, to be served concurrently with the sentences for the other charges. This resulted in an overall sentence of six and a half years imprisonment.

Orders