R v Hanks

[2018] NZHC 1543

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KOTI MATUA O AOTEAROA TAMAKI MAKAURAU ROHE

CRI-2017-090-004800 [2018] NZHC 1543

THE QUEEN

v

KORRINE LORRAINE HANKS

Hearing:	26 June 2018
Appearances:	S L McColgan for the Crown M Kan for the Defendant
Judgment:	26 June 2018

SENTENCING NOTES OF POWELL J

Solicitors:

Crown Solicitor, Auckland

Counsel:

S L McColgan

M Kan, Auckland

R v HANKS [2018] NZHC 1543 [26 June 2018]

Introduction

[1]    Ms Hanks, as you are aware you have pleaded guilty to three charges: of being a party to discharging a firearm with reckless disregard for the safety of others;1 blackmail;2 and unlawful possession of a firearm.3 You pleaded guilty after accepting the sentence indication I gave on 28 May 2018.4

[2]    At that time I indicated a starting point of four years’ imprisonment, and that a 25 per cent discount for your guilty plea was available. I also indicated that matters personal to you would be considered at sentencing. Although I have already previously explained to you the rationale for both the four years and the 25 per cent discount, and indeed I have detailed your offending twice previously, because sentencing is a judicial function which is undertaken in public I am required to traverse those matters again, albeit more briefly.

Details of Offending

[3]    Ms Hanks, your offending combined both violence and extortion. In September 2017 you and Jason Lee conspired and agreed on a common purpose to use violence to extort a black Holden Commodore Clubsport from the victim, Robert Flavell.

[4]    The agreed summary of facts detailed that you believed Mr Flavell owed you a debt and that you intended to recover it by taking his car.

[5]    I pause at this point to note that you have given a slightly different account of the motivation to the probation officer; that you fabricated the debt in order to win favour with Mr Lee, who was your long-term partner whom you had been in a violent relationship with but had recently separated from. The sentencing indication that I gave was on the basis of the agreed summary of facts, which you accepted. This sentencing must proceed on those facts. But whichever scenario is adopted, it was the conduct which followed which justified the starting point of four years’ imprisonment.

1      Crimes Act 1961, ss 198(2) and 66(2). The maximum penalty is seven years’ imprisonment.

2      Sections 237 and 238. The maximum penalty is 14 years’ imprisonment.

3      Arms Act 1983, s 45. The maximum penalty is four years’ imprisonment and/or a fine of $5,000.

4      R v Hanks [2018] NZHC 1216.

[6]    On 12 September 2017 you sent Mr Lee a series of text messages inciting him to assist you in using violence to recover the car. The texts show clearly your responsibility for what followed and the level of premeditation that was involved. The messages also reveal that you assisted Mr Lee to obtain a firearm to use in the offending, which he was not allowed to have as a result of a final protection order that had been issued by the Waitakere District Court, ironically for your protection. It was the possession of this weapon that underpinned the unlawful possession of a firearm charge.

[7]    On 13 September both you and Mr Lee sent a number of threatening messages to Mr Flavell about taking his car and other property by force. The messages you sent to a large degree constitute the blackmail charge against you. That charge was completed when you then sent Mr Lee off in search of Mr Flavell.

[8]    On 15 September 2017 Mr Flavell was at his old address in Te Atatu with his then partner and their four year old son. They were there cleaning up, having completed their tenancy at that address. The black Holden Commodore which was the object of Mr Lee’s attentions was parked on the road immediately outside.

[9]    About 2.42 pm Mr Lee arrived at the address accompanied by an unnamed associate, and he approached Mr Flavell and demanded the keys to the Holden. At that point Mr Flavell’s partner tried to go get into the Holden to drive it away and Mr Lee told her “you are not taking the car”. He then took a cut down and loaded .22 calibre firearm which he hid behind his back. When Mr Flavell’s partner attempted to take the Holden Mr Lee repeated, “you’re not taking it, this is not your car”.

[10]   In the meantime Mr Flavell had placed his four year old son in the back of another car which he had drive to the address. Mr Flavell attempted to leave in this other vehicle but was blocked by Mr Lee’s car. Mr Lee raised his gun, aimed it at Mr Flavell and began firing. Mr Lee fired four shots in total. One struck the rear windscreen shattering it and travelling through the vehicle before lodging in the roof space. Another struck high on the driver’s door in the centre ricocheting off elsewhere. A further shot hit the rain shield above the driver’s window cracking it and embedding itself in the vehicle. Mr Lee then got into his own car and drove off at speed.

[11]Mr Flavell, his partner and their son then left the address.

[12]   A short time later you arrived, Ms Hanks. You didn’t stay very long before departing, and shortly afterwards you were stopped by Police. When questioned you accepted you had made an arrangement to rob Mr Flavell and that you had sent a text message to Mr Lee saying you had a gun. You also confirmed that Mr Flavell owed you a debt.

[13]   You were originally charged with unlawful discharge of a firearm with an intention to cause grievous bodily harm to Mr Flavell on the basis that you were a party to every offence committed by Mr Lee in the prosecution of the common purpose to take the vehicle. As part of that charge, knowledge that discharging the firearm with intent to cause grievous bodily harm was a probable consequence of the common purpose was alleged. The Crown subsequently accepted your liability for the firearm discharge fell more properly within s 198(2) of the Crimes Act 1961 and this lead to the amended charge being laid to which you pleaded guilty.

[14]   Mr Lee is the father of your children and until recently your long-term partner. You clearly knew him well. The Crown has argued, and I agree, that you would have known Mr Lee’s volatility and had at least some appreciation of how he might have behaved when he encountered Mr Flavell.

Personal Circumstances

[15]   Since the sentencing indication and your plea Ms Hanks, I have had the benefit of reading the probation officer’s report prepared for your sentencing. It discloses, amongst other things, your personal background.

[16]   You are 34 years of age, of Pakeha descent. You were raised in West Auckland. You are close with your mother and step-father and indeed currently staying with them. You have three children to look after and help out caring for your two nieces, who are in the full-time care of your mother. You have previously worked in various jobs including hairdressing, but you are currently full-time looking after your children.

[17]   It is apparent that you have had a tumultuous relationship with Mr Lee over the past 15 years. As you have heard this morning Mr McColgan described it as dysfunctional and indeed toxic, and it is clear as detailed in the pre-sentence report that it has involved multiple Police callouts, a protection order, and emotional manipulation. I accept that you have suffered significant emotional distress during that relationship although at the end of it it is encouraging to see that you have no issues with drugs or alcohol and the assessment is that you are emotionally stable.

[18]   You have some prior convictions and have previously completed a sentence of community detention. I note you have been subject to bail for approximately six months, although on 26 February 2018 I note that Gordon J certified a number of bail breaches involving communication with Mr Lee.

Approach to sentencing

[19]   I now turn to the approach to sentencing. Sentencing as I have previously explained to you involves three steps. First, I must indicate what the starting point of offending for these type of offences would attract. As you have heard, I have already indicated an appropriate starting point.

[20]   The second and third stages involve adjusting the starting point to take into account your personal circumstances and finally considering the discount for the guilty plea. As you have heard I have also already indicated what guilty plea discount is available.

[21]   The purposes and principles of sentencing contained in ss 7 and 8 of the Sentencing Act are relevant and I note, at this stage, the importance of holding an offender like you accountable for your conduct, promoting a sense of responsibility for the harm that has been inflicted, denouncing the conduct, deterring you and others from committing similar offences and protecting the community from you as an offender.

[22]   In this case I also note the gravity of the offending including the degree of culpability, the seriousness of the offence and the effect of the offending on the victims. In addition, I note the desirability to ensure consistency with appropriate

sentencing levels must be taken into account as well as the least restrictive sentence which is appropriate in the circumstances. Finally any particular circumstances which might make the sentence disproportionately severe in your case must be taken into account.

Starting Point

[23]   So first the starting point. At the sentencing indication hearing, taking into account the change in charge Mr McColgan for the Crown submitted that the appropriate starting point was between three years and nine months and four years and six months’ imprisonment. Mr Kan submitted a sentence of a starting point of three years and six months was more appropriate.

[24]Ultimately I arrived at a starting point of four years’ imprisonment.

[25]   I noted that while there was no guideline judgment for this sort of offending, I found the cases of R v Hakeke5 and Katene v R6 helpful.

[26]   The following factors were influential. Although you were not present at the time of the firearms offence which clearly and obviously diminished your culpability in respect of that offence, the offending was nonetheless serious. There were clear elements of premeditation and home invasion resulting from the firearms part of the offending. In addition, the reduction in the seriousness of the firearms offending raises the relative importance of the blackmail charge. As Mr McColgan submitted, the charge of blackmail does not just include the texts you sent directly to Mr Flavell, but also the fact  that you primed Mr  Lee  up to enforce the  debt that you considered  Mr Flavell owed you. It also covered the fact that you obtained a firearm and gave it to Mr Lee, and then set him on Mr Flavell.

[27]   Bearing those factors in mind, I could not agree with Mr Kan that a starting point of three years and six months was appropriate for your role in the offending as it did not give sufficient weight to the seriousness of the blackmail which you instigated. That, I noted, could be seen as vigilante action taken for an extortionary

5      R v Hakeke [2013] NZHC 865.

6      Katene v R [2010] NZCA 394.

purposes which was not a factor present in either R v Hakeke or Katene v R cases. Taking into account the totality of the offending, I concluded a starting point of four years properly reflected the seriousness of the charges that were brought against you, Ms Hanks.

Personal Aggravating and Mitigating Circumstances

[28]   I now turn to the personal aggravating and mitigating circumstances. As previously discussed I agree with counsel that no uplift for personal aggravating factors was appropriate.

[29]   But having heard from Mr McColgan and Mr Kan, I accept there are compelling personal circumstances justifying a substantial discount in the sentence that would otherwise have been appropriate. Ultimately I am satisfied that these factors are equivalent to 48 per cent of the starting point.

[30]   I do not propose to go into those factors in any detail, but they include first and foremost:

(a)The nature of your relationship with Mr Lee including the history of domestic violence and abuse that you have suffered that is detailed in the pre-sentence report.

(b)I note also the family support that is clear from the probation report and also the fact that your mother and step-father are prepared to have you in their home giving you support around rehabilitation, reintegration into the community.

(c)I note also the importance of your role as the primary carer for your children and indeed in your supporting role for caring for your sister’s children.

(d)I note the remorse that you have expressed for your offending and your explanation of the circumstances surrounding it. and

(e)Finally I am prepared to give some credit for the restrictive bail that you have been on for six months.

Guilty Plea

[31]   To those discounts, as I have previously indicated, Ms Hanks, I am prepared to give a discount for a guilty plea of a further 25 per cent.

[32]   Applying these discounts, I have arrived at a nominal end sentence of 19 months’ imprisonment which in total represents a net 60 per cent discount from the original starting point of four years, including all of your personal circumstances and your guilty plea.

The Form of Sentence

[33]   Having reached this conclusion I not turn to the form that the sentence should take. Having considered the options and the circumstances that you now find yourself I am satisfied that the most appropriate sentence in your case is one of home detention. Your offending is serious, it requires a stern response which deters and denounces your conduct. I do not consider a sentence of community detention would adequately achieve those purposes of sentencing, or properly hold you accountable for the harm that you have done.

[34]   On the other hand given your prospects of rehabilitation, and the responsibility you have for raising your children and your nieces, I equally do not consider that a sentence of imprisonment would be appropriate. The purposes and principles of sentencing and in particular the principles of denunciation and deterrence7 that I have outlined can be met by a sentence of home detention.

[35]   I am supported in this view by the comments of your probation officer, who as well as advising that the proposed address for home detention was assessed as technically suitable, and the occupants are all aware of their responsibilities and potential challenges, was also generally positive about your prospects and assessed you as being able and willing to comply with the sentence.

7      Fairbrother v R [2013] NZCA 340 at [30].

[36]   As well as giving you the opportunity to look after your children I note that a sentence of home detention will also give you the opportunity to find suitable employment, and you do find it to actually be able to undertake that employment and that can be accommodated with the existing conditions of home detention.

[37]   So in conclusion I consider that a term of nine and half months’ home detention is  appropriate,  together  with  the  special  conditions  as  recommended  in  the   pre sentence report, and the post detention conditions specified in the report for a period of six months post sentence.

[38]   Ms Hanks just at the end of the sentence I just wanted to really explain a couple of things to you. Your offending was serious and utterly unjustifiable offending. The seriousness of your offending was reflected by the fact that I have already given you a first strike warning. That will follow you from now on. If you offend again you will find the consequences to be far, far more severe than the sentence that I am imposing today. As a result you need to recognise that the sentence today is an opportunity for you. It gives you a chance, in effect, to start again.

[39]   There is a serious punitive element through the home detention, it is a difficult sentence but in your case it does give you the opportunity to be close to your children and to your nieces and to your supportive environment with your mother and your step-father. From there it is my hope that you will be able to start looking towards employment as I have discussed, and start getting your life back on track. It is clear to me that you have already started that journey, having firmly and with some courage taken responsibility for your actions, and what you need to do now is follow it through. Ultimately whether you can do so will be up to you, hopefully with the support of your family.

Result

[40]   Ms Hanks, on charges of being a party to discharging a firearm with reckless disregard for the safety of others, blackmail, and unlawful possession of a firearm, I sentence you to nine and half months’ home detention, together with the conditions referred to earlier.

Powell J