R v Hamilton

[2019] NZHC 956

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-044-004671

[2019] NZHC 956

THE QUEEN

v

AIDEN HAMILTON

Hearing:	2 May 2019
Appearances:	B R Northwood for the Crown A S Bloem for the Defendant
Sentencing:	2 May 2019

SENTENCING NOTES OF WOOLFORD J

Solicitors:Meredith Connell (Office of the Crown Solicitor), Auckland Bloem & Associates, Auckland

R v HAMILTON [2019] NZHC 956 [2 May 2019]

[1]        Aiden Hamilton, you have pleaded guilty to one charge of injuring with intent to injure.1 This charge carries a maximum penalty of five years imprisonment.

Background

[2]        Mr Hamilton, you are a sentenced prisoner in maximum security at the Auckland Prison at Paremoremo. You were involved, with four other prisoners, in an attack on another prisoner on 12 November 2017. Two of your co-offenders are patched members of the Black Power gang. You and a third co-offender are members of the Crips gang; the fourth co-offender is a member of the Killer Beez gang, while the complainant is a member of the Mongrel Mob gang. The Black Power gang members, Mr Wereta and Mr Rangitoheriri, began the attack. You joined in and were observed to aim multiple kicks to the complainant’s head and torso, while your co- offenders stabbed him multiple times with a metal shank. You covered a CCTV camera for approximately three seconds as the attack was carried out. You taunted Corrections Officers who came to rescue the complainant. As your co-offenders squirted shampoo across the ground to obstruct the Corrections Officers, you tipped water onto the ground. The complainant sustained life-threatening injuries.

Sentencing Approach

[3]        The Crown and defence counsel agree that the guideline judgement Nuku v R sets out how the starting point should be determined for offending involving intent to injure.2 The prevalence of the aggravating features stipulated in R v Taueki in the offending must be first established.3 Nuku v R then provides that the offending will fall into one of the following bands:4

(a)Band one: where there are few aggravating features, the level of violence is relatively low and the sentencing judge considers the offender's culpability to be at a level that might have been better reflected in a less serious charge, a sentence of less than imprisonment may be appropriate.

1      Crimes Act 1961, s 189(2).

2      Nuku v R [2012] NZCA 584.

3      R v Taueki [2005] 3 NZLR 372, (2005) 21 CRNZ 769 (CA).

4      Nuku v R [2012] NZCA 584.

(b)Band two: a starting point of up to three years imprisonment will be appropriate where three or fewer of the aggravating factors listed at

[31] of R v Taueki are present.

(c)Band three: a starting point of two years up to the statutory maximum of five years will apply where three or more of the aggravating features set out in R v Taueki are present and the combination of those features is particularly serious. The presence of a high level of or prolonged violence is an aggravating factor of such gravity that it will generally require a starting point within band three, even if there are few other aggravating features.

[4]        The sentencing notes of your co-offenders, Mr Rangitoheriri, Mr Tonga and Mr Penewi, are useful, notwithstanding their different roles in the attack.5

Submissions

[5]        The Crown submits that a starting point in the vicinity of four years imprisonment is appropriate, with the following adjustments:

(a)A three-month uplift for offending while subject to a sentence and your previous convictions;

(b)A three-month discount for genuine remorse and willingness to engage in restorative justice;

(c)A five to 10 per cent discount for pleading guilty; and

(d)A small discount for totality.

The end sentence put forward by the Crown is three years and four months imprisonment.

[6]        Your own counsel submits that a starting point of two years imprisonment is appropriate, with the following discounts:

(a)15 per cent discount for remorse;

5      R v Rangitoheririri [2018] NZHC 2355; R v Tonga [2019] NZHC 712; R v Penewi [2019] NZHC 479.

(b)20 per cent discount for the guilty plea; and

(c)15 per cent discount for totality.

The end sentence put forward by your counsel is one year’s imprisonment.

Analysis

Setting the starting point

[7]I am of the view that the following aggravating features are relevant.

[8]        First, the attack involved extreme violence over a period of five minutes. You were not the perpetrator of the worst violence, but you did commit serious violence and further worsened the attacks by obstructing the Corrections Officers.

[9]        Secondly, the complainant’s injuries were life threatening. It is not clear, however, to what extent these injuries can be attributed to you. The complainant was stabbed at least 33 times and you did not stab him, so the worst of the injuries were not your fault. Nevertheless, as submitted by the Crown, you continued to kick the victim as he was stabbed, so serious injury was a foreseeable consequence of your actions.

[10]      Thirdly, you aimed kicks at the complainant’s head. This is an aggravating feature because it increased the likelihood of serious injury. Taueki suggested that such attacks on the head are analogous to offending with a weapon.6 However, it is not clear how many of your kicks were aimed at the complainant’s head.

[11]      Fourthly, and finally, the attack involved multiple offenders against a sole complainant.

[12]      Despite the Crown’s submissions, your offending was not committed to facilitate the offending by the other attackers. That aggravating feature would be

6      R v Taueki [2005] 3 NZLR 372, (2005) 21 CRNZ 769 (CA) at [31].

present if the offence was carried out as a means to another end - for example, Taueki discussed grievous bodily harm carried out to facilitate the commission of rape.7

[13]      Additionally, in my view, it is not an aggravating feature for sentencing today that the attack was gang-related. As both the Crown and defence counsel have noted, there is no evidence that you were involved in instigating the attack or were connected to the gang dispute. You were not a member of the same gang as the main offenders or the complainant.

[14]In my view, there are no mitigating features to the offending.

[15]      The offending fits within band 3 of R v Nuku because three or more aggravating features were present. You did have a reduced role in the attack in comparison to the other offenders, however. In the pre-sentence report, you said that you only joined in the attack because you were afraid not to. Nonetheless, you were involved in the commission of extremely serious violence. Therefore, I adopt  a starting point of  two years and six months imprisonment, which is half the maximum sentence.

Adjusting the starting point – aggravating factors

[16]      You have two previous convictions for violence in custody. The first occurred while you were on remand and the second as a sentenced prisoner. However, your other convictions are primarily property, theft and driving-related offending, so they in themselves are not relevant. However, in light of your previous convictions for violence in custody, a small uplift of five per cent for that offending is necessary for the purposes of deterrence and to address your risk of committing further violence offences.

[17]       The offending occurred in prison. This is generally considered to be a significant aggravating factor.8 For two of your co-offenders, it was held that this

7 At [31].

8      Tryselaar v R [2012] NZCA 353 at [18]; Kepu v R [2011] NZCA 104 at [18]–[19].

factor could result in an uplift.9 In the sentencing of R v Rangitoheririri, Wylie J referred to R v Wereta:10

The Court of Appeal has noted that offending in the prison environment, particularly where the offending goes to the maintenance of discipline required to effectively manage a penal institution, demands a stern response. These comments were made in the context of attacks on prison officers, but they are equally applicable to attacks on fellow inmates who are confined and are entitled to protection.

[18]      However, the Court of Appeal in Wereta said that the need to denounce and deter offending in prisons is tempered by the recognition that a prison environment is a violent one.11 It is necessary to acknowledge that the nature of a life in a custodial setting can be conducive to violence. You were not the instigator of the incident and you stated that you felt you had to join in. This is, therefore, not a situation where it would be appropriate to uplift the sentence even more because the offending occurred in prison.

Adjusting the starting point – mitigating factors

[19]      You pleaded guilty. The plea came just before the trial commenced, when the jury were already empanelled. The purpose of giving a discount for a guilty plea is to facilitate the effective operation of a justice system by recognising the practical advantages of avoiding a trial.12 Therefore, late pleas do not attract significant discounts unless there was an obvious benefit from the plea.13

[20]      Defence counsel contends that your plea was late because you declined to plead at an earlier stage to the more serious charge of grievous bodily harm and that the Crown denied earlier attempts at resolution. The Crown suggested that a discount similar to Huata v R was appropriate, where a guilty plea to an alternative charge on

9      R v Rangitoheririri [2018] NZHC 2355 at [36]; R v Tonga [2019] NZHC 712 at [18].

10 R v Rangitoheririri [2018] NZHC 2355 at [36] (footnotes omitted), citing R v Wereta  [2015] NZHC 2248.

11 R v Wereta [2015] NZHC 2248 at [35]. See also Vincent v R [2015] NZCA 201 at [64] “We accept that the need to uphold prison discipline required a sentence of sufficient severity to act as a deterrent against conduct of this kind, but some allowance should have been made for the frustrations that inevitably arise where inmates are forced together in close quarters over lengthy periods of time with minimal periods allowed each day outside their cells.”

12 Hessell v R [2010] NZSC 135, [2011] 1 NZLR.

13 Hessell v R [2010] NZSC 135, [2011] 1 NZLR at [76].

the first day of a trial equated to a 5.8 per cent discount.14 The Crown conceded that the court emphasized guilty pleas were especially beneficial were they would prevent a trial for gang-related offences.15 This factor is hardly relevant here, as there are no risks involving ‘terrified witnesses’ like in the gang shooting situation of Huata. Nonetheless, there is good reason why you did not plead at an earlier stage and because a trial was avoided, a 10 per cent discount is appropriate.

[21]      Furthermore, there is evidence (beyond the guilty plea) that you have shown genuine remorse and willingness to engage in restorative justice. The pre-sentence report says that you have shown genuine remorse for your offending and felt you had let yourself and your family down. It is said you were horrified when you learnt the extent of the complainant’s injuries and that you did not know how serious they were at the time of the incident. You expressed your willingness to engage in restorative justice. Your apology letter states:

… I feel disgusted in my actions and regret every moment I recall in my mind of the day Toka Vercoe was savagely attacked, stabbed and dehumanised … I wish I had more courage to stay out of it or even come to his aid.

You are also taking positive steps to avoid similar offending. The letter from your previous social worker states:

It is encouraging that he has articulated a willingness to do work on himself and address some of his issues, over the period of his remand for this offence. Aidan has been working with a Departmental Psychologist, speaking enthusiastically of what he is learning and the ways he is practicing applying it.

… He is by no means beyond redemption or so entrenched in violence and the gang world that he has abandoned hopes, plans and more importantly – tangible actions, that contribute to a pro-social life outside of prison.

[22]      Section 10 of the Sentencing Act 2002 specifically provides that the Court must take into account genuine measures to make amends. However, as noted by the Crown, the fact that no restorative justice actually took place requires any discount to be relatively small.16 In my view, a further 10 per cent discount for remorse and willingness to participate in restorative justice is appropriate.

14     Huata v R [2013] NZCA 470.

15 At [44].

16     R v Clotworthy (1998) 15 CRNZ 651 at 661.

[23]      Finally, both sets of submissions acknowledge that an adjustment for totality is appropriate.17 You are currently serving four years and two months in prison, for a burglary offence and the two further violence offences committed whilst in custody. The offence before the Court has no factual connection to your earlier offending. The Court must consider the totality principle to ensure that the total period that you are imprisoned for is not wholly out of proportion to the gravity of the overall offending.18 Without adjusting for totality, the sentence for the present charge would be two years and one months imprisonment – so that you would cumulatively serve six years and three months in prison. Therefore, in my view, a further discount of seven and a half per cent is appropriate.

Result

[24]      I adopt a starting point of two and a half years imprisonment, subject to the following adjustments:

(a)A five per cent uplift for your previous violence convictions;

(b)A 10 per cent discount for pleading guilty;

(c)A 10 per cent discount for genuine remorse and willingness to participate in restorative justice; and finally,

(d)A 7.5 per cent discount for totality.

[25]      Please stand. I therefore convict and sentence you to 23 months imprisonment, which is to be served cumulatively on the sentences in respect of which you are already serving imprisonment.

Woolford J

17     Sentencing Act 2002, s 85.

18     Sentencing Act 2002, s 85(2).