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…

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 Hamilton

Details

AGLC: R v Hamilton [2019] NZHC 956
Case: [2019] NZHC 956
Decision Date: 2 May 2019

CaseChat Overview and Summary

The case of R v Hamilton involved the defendant, Aiden Hamilton, who pleaded guilty to one charge of injuring with intent to injure. The maximum penalty for this charge is five years imprisonment. The defendant, a member of the Crips gang, was involved in an attack on another prisoner at the Auckland Prison at Paremoremo. The attack, which lasted approximately five minutes, involved multiple offenders and resulted in life-threatening injuries to the complainant. The defendant was observed to aim multiple kicks at the complainant’s head and torso, while obstructing a CCTV camera for approximately three seconds and taunting Corrections Officers.

The legal issues before the court were determining the appropriate starting point for sentencing, considering the aggravating and mitigating factors present in the case, and applying these to arrive at a final sentence. The court referred to Nuku v R and R v Taueki to guide the sentencing approach, considering the prevalence of aggravating features and the appropriate band for sentencing. The Crown and defence counsel agreed on the starting point but differed on the appropriate sentence length, with the Crown advocating for three years and four months and the defence for one year.

The court found that the attack involved extreme violence, the complainant sustained life-threatening injuries, and the attack was gang-related but not instigated by the defendant. The court determined that the defendant’s role, although reduced compared to his co-offenders, still involved serious violence. The court adopted a starting point of two years and six months imprisonment, adjusted for the aggravating and mitigating factors. The court applied a five per cent uplift for previous violence convictions, a ten per cent discount for the guilty plea, a ten per cent discount for genuine remorse and willingness to participate in restorative justice, and a seven and a half per cent discount for totality. The final sentence was 23 months imprisonment, to be served cumulatively on the sentences for which the defendant was already serving time.

The court's decision was based on a careful analysis of the aggravating and mitigating factors, applying the appropriate legal principles to arrive at a just and proportionate sentence. The final orders of the court were to sentence the defendant to 23 months imprisonment, to be served cumulatively on the sentences for which the defendant was already serving time.

Orders