R v Harvey

[2017] NZHC 3069

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA TE ROTORUA-NUI-Ā-KAHU ROHE

CRI-2017-463-121 [2017] NZHC 3069

THE QUEEN

v

ARCH ARTHUR BO HARVEY

Hearing:	11 December 2017
Counsel:	A Gordon for the Crown M J Hine for the Defendant
Judgment:	11 December 2017

SENTENCING NOTES OF GORDON J

Solicitors:           Crown Solicitor, Rotorua

M J Hine, Tauranga

R v HARVEY [2017] NZHC 3069 [11 December 2017]

Background

[1]      Mr Harvey, you appear for sentence having pleaded guilty to a charge of wounding with intent to cause grievous bodily harm.1  The maximum penalty for that offence is 14 years’ imprisonment.

Facts

[2]      On the evening of 20 July 2017, you and some of your family members were celebrating a birthday at your home here in Rotorua.  You told the probation officer who wrote the pre-sentence report that you consumed a considerable amount of alcohol throughout the course of the evening.

[3]      Shortly before midnight, you called 111 and asked for the police. You told the operator your home address but did not explain what was happening or why you needed help. As is standard practice, the police dispatched a patrol car to investigate.

[4]      Constables Ardon Hayward and Olivia Broughton arrived at your home a short time later.  They saw a man and a woman having a dispute outside on the driveway area.  Constable Hayward arrested the man and took him off your property towards the patrol car.  Constable Broughton stayed on the driveway and spoke to the woman.

[5]      When you became aware the police were at your house, you picked up a tomahawk and went outside to the roadside edge of the property.  You climbed over the front boundary fence, and ran up behind Constable Hayward. He was kneeling on the ground and he was busy dealing with the man he had just arrested.  He had his back to you.   He was completely unaware of your presence and so was unable to defend himself or evade your attack.

[6]      You swung the tomahawk and struck Constable Hayward once to the back of his head.  He was immediately knocked unconscious and fell to the ground.  It was a vicious attack.

[7]      You then ran across the road towards a shopping centre, stopping along the way to hide the tomahawk in some shrubs.  You took off your pants and top and hid them as well.  You then climbed onto the roof of a nearby kindergarten and watched other police arrive, tend to Constable Hayward, and then search for you.  You hid on the roof for several hours until all the officers had left.

[8]      The police did not find you that night. Rather, you were arrested the following evening at your home address. When spoken to by the police, you admitted what you had done although you could not say why you did it.  You said you did not realise Constable Hayward was a police officer until after you had struck him.

Victim impact

[9]     Constable Hayward was rushed to Rotorua Hospital, and then urgently transferred to Waikato Hospital.  Your attack with the tomahawk had left him with a large laceration to the back of his head, a depressed skull fracture and bruising to his brain. The doctors had to remove part of his skull and fix the pieces of bone back into place with cranial plates and screws.  Without the skill of the emergency surgeons at Waikato Hospital, the consequences of your actions could have been even more serious.

[10]     Although his recovery to date has been remarkable, Constable Hayward still suffers the ongoing effects of your attack.  He endures the symptoms of concussion and has not yet been able to return to work.   He experiences regular headaches, ongoing fatigue, hearing issues, and memory difficulties.   The head injury has significantly affected his moods, and this has affected his sleep and his family life. He has been told he has post-traumatic stress disorder, and has had to seek help from a number of medical professionals.

[11]     In his victim impact statement, Constable Hayward says that he was a strong, confident and capable man before your attack. He had just turned 30 and had a career in the police to look forward to.  He is still unable to drive because of his head injury. Your attack has left him without his independence. He keeps asking himself why this happened.  He wonders when this nightmare will end. At this stage no-one can say if he will continue to have ongoing effects from his head injury.

Pre-sentence report

[12]     Mr Harvey, you are 25 years of age. You are the father of two young children who unfortunately suffer from serious health problems. Your wife remains supportive of you.

[13]     You  have  27  previous  convictions,  although  you  have  never  received  a sentence of imprisonment.  Your more recent offending involves drink driving and other driving-related offences.   Of more relevance, is that in May 2011, you were involved in offending relating to offensive weapons, firearms, and resisting Police.  I do not know what happened on that occasion, but for that offending, you were sentenced in March 2013 to six months’ home detention and community work.

[14]     The pre-sentence report indicates your present offending is associated with alcohol abuse, and that you also have an attitude of entitlement and an inability to appropriately manage your anger.

[15]     The probation officer assessed your motivation to address your behaviour as medium. Your risk of harm to others and your likelihood of reoffending, should your underlying issues not be addressed, was assessed as high.

Starting point

[16]     In setting an appropriate starting point, I consider the following aggravating features are relevant to your overall culpability:

(a)       First, you used a tomahawk, a lethal weapon, to inflict your attack.

(b)      Second, your attack was to Constable Hayward’s head.  Your counsel,

Mr Hines, submitted that the use of a weapon and the attack to the head should be regarded as a single aggravating factor.2    I consider that a strike with a tomahawk to the head is inherently more dangerous than a strike to another part of the body with the same weapon.   In such circumstances it is appropriate to recognise the factors separately.

(c)       Third,   your   attack   involved   serious   and   unprovoked   violence.

Although the duration of your attack was short, it was a brutal strike that immediately left the victim unconscious.

(d)Fourth,  you  inflicted  serious  injuries  to  Constable  Hayward  that continue to have a significant impact on his life.  Those injuries could easily have been fatal.

(e)      Fifth, your attack was against a constable acting in the course of his duty. The very nature of the work of the police in the community leaves them particularly vulnerable.  The courts have therefore long regarded offences against officers acting in the course of their duty as a very serious aggravating factor.

[17]     There are no mitigating factors relevant to your offending.

[18]     The Court of Appeal’s guideline judgment R v Taueki set out three “bands” of starting points for sentencing on a charge of wounding with intent to cause grievous bodily harm.3     Band two is engaged where two or three aggravating features are present, and attracts starting points in the range of five to 10 years’ imprisonment. For band three offending, which encompasses serious offending involving three or more aggravating features, starting points of nine to 14 years’ imprisonment are indicated.

[19]     The Court of Appeal also suggested that attacks on police officers with lethal weapons might, depending on the level of injury inflicted, attract starting points at the higher end of band two, or in band three.4

[20]     Both Ms Gordon for the Crown and Mr Hines agree that your offending falls within band 3, and should attract a starting point in the region of 10 to 11 years’ imprisonment.  Having weighed the aggravating factors I outlined earlier, along with the comparable cases that counsel provided to me,5 I agree that your offending falls

within band 3 and warrants a starting point of ten years’ imprisonment.

3      R v Taueki [2005] 3 NZLR 372 (CA).

4      At [39] and [41].

5      R v Wi [2009] NZCA 81; R v Leaf HC Napier CRI-2011-202-2954, 8 February 2011; and R v

[21]     Turning to matters personal to you, the Crown submits that I should take into account your prior convictions as an aggravating factor. As I mentioned earlier, your conviction history shows that you were convicted of offending involving carrying a firearm and resisting police.  However, you committed those offences in 2011.  That was some time ago, while you were a teenager, and the convictions did not result in sentences of imprisonment. Although you have two other convictions for possessing a weapon there are no prior assaults.  I do not consider that your previous offending requires an uplift.

[22]     Mr Hines submitted that you should be given credit for remorse. You told the probation officer that you were disappointed and disgusted with yourself, and that you were sorry for the constable. However, the probation officer states that it was difficult to assess how genuine your statement was. Today Mr Hine has told the Court that you are deeply remorseful.  He says that you say it is a mystery as to why you behaved in the way you did. He said your earliest inquiry was to ascertain how the constable was. He said you were visibly moved when he read the victim impact statement from the constable to you.  I accept that your remorse is genuine and I give you a 5 per cent discount for remorse, in other words, six months.

Guilty plea

[23]     You are entitled to a discount to reflect your guilty plea.  You acknowledged your actions at the police interview following your arrest, and pleaded guilty immediately upon being faced with this current charge.  The Crown accepts that you are entitled to a full 25 per cent discount to reflect your guilty plea.

[24]     I consider that is appropriate.  The result is that your adjusted end sentence is seven years, one months’ imprisonment.

Whakataka HC Hamilton CRI-2007-019-3859, 23 September 2008.

[25]     Ordinarily, you would be eligible for parole after completing one third of your prison sentence. However, the Crown submits that should I impose a longer minimum period of imprisonment because the ordinary parole period would be insufficient to hold you accountable; denounce your conduct; deter you and others from committing this type of offending; and to protect the community.  Mr Hines submits that your offending was out of character and accordingly personal deterrence and protection of the community should assume a lesser importance.   However, he agrees that denunciation, deterrence and holding you to account are factors the Court should undoubtedly take into account.

[26]     I agree that a minimum period of imprisonment is necessary.  Your offending involved serious violence against a law enforcement officer, meaning denunciation and deterrence are important sentencing values in your case. The standard non-parole period would not be sufficient to recognise these sentencing purposes.

[27]     I agree with the Crown that your minimum period of imprisonment should be set as half your end sentence.  I stress, however, that you will not automatically be entitled to release after serving this minimum period. You must still satisfy the parole board that you can be safely released into the community.  A good place for you to start in this respect is to engage in programmes to address your underlying alcohol and anger problems.

Sentencing

[28]     Mr Harvey, would you please stand.

[29]     On the charge of wounding with intent to cause grievous bodily harm, I sentence you to seven years, one month’s imprisonment.   I impose a 50 per cent minimum period of imprisonment.

[30]     You are presently subject to a sentence of community work which was imposed on 18 May 2017. There are 29 hours still outstanding.  Having regard to the sentence of imprisonment I have imposed I cancel the sentence of community work.

Gordon J