R v Hambly
[2023] NZHC 2506
•7 September 2023
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 Mr Walker and the others present that Mr Walker was not allowed to leave the co-defendant’s home. Mr Walker remained there out of fear. You were found guilty of kidnapping Mr Walker as a principal offender.
[9] The next day, again at your co-defendant’s home, you made Mr Walker participate in two videos in which he confessed to being responsible for the taking of your property. The videos showed an injury above his eyebrow from the blow administered by Mr Ford.
[10] This brings me to your most serious offence. At some point following what I call the confession videos, you and Mr Ford severely beat Mr Walker. You and Mr Ford repeatedly kicked and stomped Mr Walker while he was on the ground. He was in the foetal position, trying to protect himself. Mr Walker said one of the kicks caused pain like he had never felt before. That, I infer, accompanied the rupturing of his spleen that later required surgery. Mr Walker said you and Mr Ford then beat him harder because you and he wanted him to be quiet. You were worried the neighbours would hear what was happening. Mr Walker was, as he described, “in absolute agony”. The kicking and stomping continued. You were found guilty of causing grievous bodily harm as a joint principal offender with Mr Ford, or as a party to Mr Ford’s offending.
[11] Later that day, or perhaps the next, you returned to the co-defendant’s home. You told Mr Walker to remove his shoes and socks. You then heated a pair of garden shears on the element until they were red hot. You placed the shears around Mr Walker’s toe. You threatened to cut it off, give the severed toe back, and make
Mr Walker walk to hospital. You were found guilty of threatening grievous bodily harm as a principal, that is, as the person who uttered the threat.
[12] In the early hours of 24 July 2020, Mr Walker called an ambulance. He was still at the co-defendant’s home. He was admitted to hospital and underwent surgery for a ruptured spleen. He was discharged 10 August 2020.
Mr Ford
[13] Mr Ford was sentenced by Hinton J.5 Hinton J adopted a starting point of five and a half years’ imprisonment for the violence charges. She added one year for the kidnapping and threatening charges. The Crown invites me to adopt the same methodology for you. Ms Feyen, on your behalf, also suggests I apply Hinton J’s methodology, albeit with a slightly lower starting point for the violence offences.
[14] I adopt a similar approach to Hinton J, but not the same approach. The starting point adopted by Hinton J was, on one view, benevolent. More importantly, Hinton J was sentencing Mr Ford on the basis of a summary of facts, following pleas of guilty. Unsurprisingly, her focus was what Mr Ford did. I am sentencing you following a trial, having regard to all of the evidence at trial. Necessarily, my focus is what you did.
Aggravating factors
[15] Your offending has five aggravating factors; five things that make it more serious.
[16] First, it was premeditated.6 You arranged for Mr Walker to go to the co- defendant’s address so he would be detained, assaulted, and threatened there. You, I infer, arranged for Mr Ford to be present, so he would assist in the infliction of violence. I state the obvious. Mr Ford had no reason to have any hostility toward Mr Walker. Indeed, Mr Ford and Mr Walker did not even know each other. Again, you planned and arranged the offending.
5 R v Ford [2022] NZHC 853.
6 R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372 (CA) at [31(b)].
[17] Second, your offending exhibits vigilantism.7 You took the law into your own hands, and you were acting out of revenge. You believed Mr Walker was responsible for the loss of your property. As I said earlier, you were very angry about that. This and the first aggravating factor are present to a significant degree.
[18] Third, the offending began with an attack to the head—and involved a powerful blow.8
[19] Fourth, Mr Walker was confronted by multiple attackers, albeit only two.9 This and the third aggravating factor are therefore present to a lesser degree.
[20] Fifth, Mr Walker suffered very serious physical injury.10 He continues to suffer emotionally and psychologically. I record that a victim impact statement has been filed in relation to him, and by agreement there were amendments to that statement before it was read to me this morning. I remind myself not to double-count in relation to physical harm, as very serious injury is obviously inherent to the charge.11
[21] Given all of this, your offending is firmly within band 2 of the guideline sentencing judgment I mentioned earlier. Band 2 attracts starting points of between five and 10 years’ imprisonment. An approach identical to Mr Ford would not be right for you. You instigated the offending. Indeed, nothing would have happened to Mr Walker but for you. Mr Ford was there as mere muscle. Furthermore, you participated fully in the beating that caused the rupturing of the victim’s spleen, even though you might not have delivered the precise blow.
[22] I, therefore, adopt a seven-year starting point, which is half of the statutory maximum for the most serious offence. I do so mindful of broadly similar cases, which I shall capture in a footnote to my written remarks.12 You shall have a copy of those.
7 R v Taueki, above n 6, at [31(m)].
8 At [31(e)].
9 At [31(h)].
10 At [31(c)].
11 At [31(c)].
12 Couper v R [2017] NZCA 588, R v Kreeghar [2021] NZCA 22 and Tuhiwai v R [2012] NZCA 209, all of which present as more serious.
[23] The prosecution and Ms Feyen invite me to add one year for the kidnapping and threatening charges, again, as Hinton J did in relation to Mr Ford. Here, I do adopt the same methodology. In doing so, I note this: your threat to cut off the victim’s toe was nasty. It bordered the sadistic. Mr Walker must have been terrified. I record you are rolling your eyes. You appear to have enjoyed wielding power over him. Your orchestration and recording of the confession videos supports this view.
[24]This produces a global starting point of eight years’ imprisonment.
Mitigating factors
[25]I now turn to mitigating factors—things that make your offending less serious.
[26] Sadly, you did not engage with the probation officer who prepared your pre-sentence report. You declined to provide her any information about your circumstances or background. You did, however, protest your innocence. From that report I know you have one previous conviction only. In 1996, you drove after drinking. You were fined and disqualified.
[27] You are then, essentially, a first offender, entitled to some good character discount. Good character discount is often described as a matter of impression.13 A distinction is typically drawn between the mere absence of convictions, and positive contributions to the community (in addition to a law-abiding life). The earlier category attracts smaller discounts. You fall into that. Moreover, your offending was premeditated, not an impulsive or spontaneous act. That is relevant here too. I, therefore, deduct five percent.
[28] I now turn to your cultural report. You are 50. You describe a “classic Kiwi upbringing” which appears to have been middle-class and overall, unremarkable. You went to university and there studied sociology, psychology, and political science. You are apparently entrepreneurial and have run successful businesses. You have also suffered failure and been on a benefit. Your health is imperfect. You are intelligent.
13 R v Botha [2015] NZCA 196 at [21].
[29] At some point, you appear to have gone down rabbit holes. I give three examples. You believe you have been under surveillance by the SIS; that things in relation to Covid-19 are not what they seem; and that the New Zealand government is actively undermining the rights of citizens. Your cultural report says you have an “inflated sense of injustice”, exhibit “interpersonal difficulties”, and may exhibit “paranoia”. Your sister, who is referred to in the report, and who may well be present today, believes you may be narcissistic and suffer a personality disorder. She also says you have been using methamphetamine for a long time. The cultural report suggests this may explain your apparent paranoia and other behaviours. The theory is plausible, but absent more information and a properly qualified expert, it is only a theory. In any event, through Ms Feyen, you firmly reject a methamphetamine habit, and even if you had one, it is not clear how it would mitigate the offending.
[30] I have looked carefully for something in your background that might have contributed causatively to your offending, as this could be mitigating.14 The offending cannot be explained by your upbringing, which unlike many defendants in this court, was structured and positive. The presence of your family today speaks to that. There is, however, something about your personality that might have fuelled your offending. I am not able to give it a name or a label. Instead, I describe what you were like at trial as a means of illustrating my point. That point will also be illustrated by your remarks to me this morning, which I shall capture shortly.
[31] You dismissed your lawyers on the morning of trial by placing them in a position in which they had no choice but to withdraw. You had insisted they pursue irrelevant lines of defence, and you kept changing your instructions when they would not do so. This behaviour was nothing new: a succession of experienced, capable criminal lawyers had acted for you, then withdrawn, presumably because of similar behaviour on your part.
[32] You represented yourself at trial, albeit with the benefit of standby counsel. I again record my appreciation to Ms Feyen and Ms Aitken for their services on your behalf. They did an excellent job, in difficult circumstances. You cross-examined
14 Berkland v R [2022] NZSC 143, [2022] 2 NZLR 509.
several witnesses at the trial, primarily about irrelevant minutiae. You appeared obsessed with detail. In particular, you were fixated with the telecommunications evidence that formed part of the prosecution case. Yet, you never once denied sending or receiving the incriminating text messages. You refused to wear a mask when a juror tested positive for Covid-19, and I directed everyone wear masks. You said Covid-19 could not be established as a phenomenon. I said if you did not wear a mask, I would have no choice but to send you to the cells. You chose the cells. These are examples only.
[33] To the extent your behaviour admits a unifying theme, I would describe it as querulous, perhaps obsessive. Unsurprisingly, you were found guilty. There was a mountain of evidence against you.
[34] Given all this, I am satisfied of two things. First, that you dismissed counsel in accordance with s 30(2)(d) of the Sentencing Act 2002, so that a term of imprisonment may now be imposed.15 Second, that your personality has played some role in the offending, albeit in a manner that defies definition or classification. I deduct 10 percent accordingly. To deduct more would be to undermine the seriousness of your offending.
[35] I am now going to describe what you said to me this morning, as you spoke to me after Ms Feyen gave her submissions. You will appreciate this is a dense summary only of what you said.
[36] You began by saying that you were remorseful for the offending. I find that expression of remorse to be cynical. I will explain why shortly. You then referred me to a case called Momo Wilson which you said should prevail. Essentially, your submission was that because the prosecution has abused the processes of the court, you should today walk free. You went on to suggest I should adopt a starting point of 18 months’ imprisonment.
[37] You then talked about what you considered were all of the problems with the convictions. You will recall we had a discussion about the relevance of those points
15 See also my Bench Note from the trial, which was updated daily.
to today’s exercise. You noted that there had been reference in some of the paperwork to the injuring with intent to injure charge carrying a seven-year maximum. As you pointed out correctly, that was a mistake; it is a five-year maximum term. I add I was aware that was an error.
[38] You went on to say that at least two of the verdicts were unreasonable and that you had been wrongly convicted. You questioned the timing of the confession videos and said that was relevant to your conviction. You said that the kidnapping charge had been expressed differently throughout the criminal process and you had been prejudiced by that. You said that had also prejudiced the pre-sentence report as it had been wrongly referred to as kidnapping for gain.
[39] You then went on to discuss the history of the four charges. Essentially, you submission was that because there had been illegality along the way it was not lawful to imprison you. I said I would record that submission, as I have done.
[40] You said that you were not in a fit state to make submissions this morning, that you did not have access to necessary material. You said the kidnapping charge was based on a single text message and misunderstanding. For completeness, that was not the basis on which the Crown put that charge.
[41] You went on to add that the sentence should be significantly mitigated because of Mr Walker’s dishonesty in the taking of your property. You said he was responsible for taking a computer, or computers, and a hard-drive or hard-drives containing terabytes of data. You said that this had destroyed a 14 year old business and caused you grave prejudice.
[42] You cannot be genuinely remorseful about the commission of these offences given (a) you pleaded not guilty; (b) you went to trial; and (c) you continue to assert your innocence even as you mouth the word “remorse” in relation to the victim and his mother.
[43] I continue. You went on to articulate concerns about your bail conditions. You told me that you were on bail for 16 months with a curfew. You said that had caused
your partner to attempt to take her own life. You said that the Police behaviour was directly referrable to that attempt and the officer or officers involved should be charged with criminal offences. I record a more prosaic submission that you have suffered considerable hardship in relation to the operation of bail, for which I deduct, benevolently, three months.
[44] You went on to contend that the offending was not premeditated. I simply observe the evidence refutes that.
[45]You reminded me that you are 50.
[46] You then complained about disclosure; that you had not had timely disclosure throughout the criminal process. You said you suffered hardship because of delay. I have factored that into the three-month discount for your bail. You said you had 20 days to appeal and would lodge a conviction appeal. I observe it is your right to do so.
[47] You said you had done nothing more than try to help the victim, but that had essentially blown up. You ended somewhat cryptically by saying that you had “an inability to plead guilty”.
[48] Alright, with all of that I repeat my approach. I adopt a global starting point of eight years’ imprisonment; deduct five percent for your otherwise clean record; a further 10 percent in recognition of the personality feature I have tried to describe; and a three-month deduction because of your bail situation. This produces a sentence of six years and six months. Mr Ford received an ultimate sentence of three years and three months’ imprisonment, but as I have sought to stress in these remarks, that sentence reflects his circumstances including, of course, pleas of guilty.
Result
[49] Mr Hambly, the figures I am about to give you are not important except for the final one. Please stand.
[50] In relation to the injuring offence, kidnapping offence and threatening to do grievous bodily harm offence, you are sentenced to a term of three years’ imprisonment. In relation to the offence of causing grievous bodily harm with intent to do so, you are sentenced to a term of six years and six months’ imprisonment. All terms are concurrent. So, your sentence is six and a half years.
[51]Stand down.
……………………………..
Downs J
5
0