R v Hewitt
[2017] NZHC 1220
•6 June 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-044-2834 [2017] NZHC 1220
THE QUEEN
v
BRONSON HEWITT
Hearing: 6 June 2017 Appearances:
H G Clark for the Crown
A C Cresswell on instruction from G Ghahraman for the
PrisonerSentence:
6 June 2017
SENTENCING NOTES OF MUIR J
Counsel;Solicitors:
H G Clark, Meredith Connell, Auckland
G Ghahraman, Barrister, Auckland
A C Cresswell, Public Defence Service, Manukau
R v HEWITT [2017] NZHC 1220 [6 June 2017]
Introduction
[1] Following a trial by jury Mr Hewitt was found guilty on 13 March 2017 of six charges:
(a) kidnapping;1
(b) aggravated robbery;2
(c) male assaults female;3
(d) unlawfully taking a motor vehicle;4
(e) assault with intent to rob;5 and
(f) demanding with menaces.6
[2] He received a first strike warning under the three strikes regime and now appears for sentence.7
Facts
[3] The offending occurred in the course of a single day, namely 4 August 2015. There were two incidents and two victims. The Crown has summarised the facts as it considers them to have been established at trial. The defence does not take any
significant issue with that summary.
1 Crimes Act 1961, s 209(b). This offence carries a maximum sentence of 14 years’
imprisonment.
2 Crimes Act, s 235(c). This offence carries a maximum sentence of 14 years’ imprisonment.
3 Crimes Act, s 194(b). This offence carries a maximum sentence of two years’ imprisonment.
4 Crimes Act, s 226(1)(a). This offence carries a maximum sentence of seven years’
imprisonment.
5 Crimes Act, s 236(1)(b). This offence carries a maximum sentence of 14 years’ imprisonment.
Mr Hewitt was originally charged with assault with intent to injure under s 193 of the Crimes Act, but the Crown was granted leave in the course of the trial to amend this charge to assault with intent to rob.
6 Crimes Act, s 239(2). This offence carries a maximum sentence of seven years’ imprisonment.
Mr Hewitt was originally charged with aggravated robbery under s 235(c) of the Crimes Act, but the Crown was granted leave in the course of the trial to amend this charge to demanding with menaces.
7 Sentencing Act 2002, s 86B.
[4] On the afternoon of 4 August, Ms Watson was seated in her BMW car at an intersection in Glenfield. Mr Hewitt was a passenger in the vehicle in front of Ms Watson. He left the vehicle, opened Ms Watson’s passenger door and got into it. When Ms Watson asked him what he was doing, he told her to shut up and asked where her money and gold was. She gave him her handbag, the contents of which Mr Hewitt emptied onto the floor of the car. When she tried to use her cellphone, Mr Hewitt grabbed it from her.
[5] Mr Hewitt forced Ms Watson to continue driving, holding her forcefully by the hair and tilting her head back so that she could not see properly. He also ran a fishing knife up and down her arm while she drove, aggressively demanding that she “drive properly”.
[6] Having forced her to drive into a side street he demanded, under threat that he would cut her fingers off, that she give him her rings, which she did. He then punched Ms Watson in the face with a closed fist and pushed her out of her car. He then drove off in the vehicle, which was located not long afterwards at commercial premises in Glenfield. The offending against Ms Watson gave rise to the charges of kidnapping, aggravated robbery, male assaults female, and unlawfully taking a motor vehicle.
[7] Later the same day, sometime after 8.00 pm, Mr Hewitt entered the garage/sleepout of a property in Glenfield. Ms Aitcheson was seated in the garage with her friend, Ms Johnston, and Ms Johnston’s sister, Ms Kapa. The Crown says that Ms Kapa was Mr Hewitt’s girlfriend at the time. The address was therefore well known to him.
[8] Mr Hewitt grabbed Ms Aitcheson placing his right arm around her neck in a headlock. He carried a baseball bat in the other hand. Mr Hewitt then marched Ms Aitcheson around the garage in the headlock position, and at one point out of the garage and down the driveway into the street, all the time demanding that she hand over the keys to her BMW vehicle. When she did not produce the keys, Mr Hewitt demanded that she empty her pockets and take off her jumper and jump up and
down, his belief clearly being she was concealing the keys on her person. He threatened that he would break her legs if she did not hand them over.
[9] Ms Aitcheson was not in a position to produce the keys which had apparently been left in the adjacent house. Eventually Mr Hewitt left the address, telling Ms Johnston and Ms Kapa to watch Ms Aitcheson. At a point when they were not concentrating on her, Ms Aitcheson decamped from the garage, jumping fences and crossing through several residential properties, until she reached a telephone box from which she called police.
[10] The offending against Ms Aitcheson gave rise to the charges of assault with intent to rob and demanding with menaces.
[11] The Crown says that all of this offending was at least in part fuelled by methamphetamine consumption. I accept that as accurate.
Victim impact statements
[12] In April 2016 Ms Watson prepared a victim impact statement. It has not since been updated. In that statement she says that the punch to her face caused severe bruising and blood loss. She also said Mr Hewitt pulled out bunches of her hair while holding her head back. She says that she experiences ongoing trauma and as at April 2016 describes the period since the offending as the “worst year of [her] life”. She says that she has suffered a severe loss of confidence and is afraid to leave the house on her own and that a skin condition that she experienced as a child has returned. She says that she was no longer able to work in her job as a manicurist.
[13] The Crown has not been able to obtain a victim impact statement from Ms Aitcheson. Her evidence at the trial demonstrated that she was severely traumatised by the offending.
Mr Hewitt’s personal circumstances
[14] Mr Hewitt is 30 years old. He has 68 previous convictions dating from 2002, which include numerous dishonesty-related offences (such as shoplifting and
unlawfully taking a motor vehicle) and some rather historic offences of violence, including male assaults female.
[15] He declined to be interviewed for the pre-sentence report. Based on his history of offending, the report assesses him as posing a high risk of harm to others and a high risk of re-offending.
[16] In a very carefully considered letter, filed with the Court this morning, his mother, Alimina Hewitt, describes a childhood characterised by ADHD, learning difficulties, and an unfortunate incident of abuse when he was 11 years old. She says that her son suffered badly from the breakup of her marriage and fell into early drug addiction. She says that the time he has spent in jail since his latest arrest has finally alerted him to the devastation which drugs have wrought on his life and that he is determined to make significant changes for the future. Despite his history of offending, including crimes of violence, she describes him as a loving and caring son who is always willing to help out and whose many relatives regard him fondly.
[17] Reading her letter only serves to confirm again, if such confirmation were ever required, that people with potential can nevertheless find their lives destroyed by addiction. Mr Hewitt is exhibit A for that proposition. It will be clear to him, as I am sure it is to his mother, friends and relatives, that without recovery from such addiction his life will remain a revolving prison door.
Crown submissions
[18] The Crown identifies separate starting points for the two incidents. It then combines them and makes an overall totality assessment to reach a global starting point for all the offending.
[19] In terms of the offending against Ms Watson, the Crown identifies the aggravated robbery as the lead offence. It refers to the Court of Appeal’s tariff decision in R v Mako,8 and submits that the offending was characterised by the following aggravating features:
(a) Use of a weapon: Mr Hewitt rubbed a fishing knife up and down Ms
Watson’s arm while she was driving.
(b)Presence of members of the public: Mr Hewitt’s actions endangered other road users, particularly given Ms Watson’s evidence that while she was attempting to drive Mr Hewitt was pulling her hair with such aggression that clumps of it fell out.
(c) Actual violence including an attack to the head: Mr Hewitt punched
Ms Watson in the face and then pushed her out onto the road.
(d)Property stolen and extent of recovery: Mr Hewitt took gold rings from Ms Watson which were later recovered. He also took Ms Watson’s vehicle which was later recovered in a damaged condition, requiring repairs.
(e) Associated offending: the robbery is aggravated by Mr Hewitt’s
unlawful detention of Ms Watson in her car.
(f) Victim impact: Ms Watson sustained moderate injuries. She also sustained significant trauma, resulting in the ongoing problems I have referred to.
[20] In identifying a starting point, the Crown highlights the following passage from Mako, arguing that Ms Watson’s vulnerability is analogous to that of a taxi driver:9
Another form of offending of disturbing frequency is the robbery of taxi drivers. These offences, generally at night, commonly involve violence to victims who, by their occupation are vulnerable. Other road users also may be endangered. Where a weapon is presented or physical violence is employed, though no serious injury may be caused, and money is taken a starting point of between 4 and 5 years would be appropriate.
[21] Given the features listed above, the Crown submits that a starting point of
five years, six months’ imprisonment is appropriate for the aggravated robbery
against Ms Watson. It then submits that an uplift of six months should then be applied to reflect the balance of the offending against her, reaching a final starting point of six years’ imprisonment for that tranche of offending.
[22] In respect of the offending against Ms Aitcheson, the Crown identifies the assault with intent to rob as the lead offence. In terms of s 9 of the Sentencing Act
2002, it submits that the following aggravating features were present:
(a) Premeditation: the Crown says that Mr Hewitt planned the offending, and made his way to Ms Kapa’s garage/sleepout knowing that Ms Aitcheson would be present and intending to rob her.
(b) Use of a weapon: Mr Hewitt used a baseball bat to threaten Ms
Aitcheson.
(c) Entry into private premises: The Crown emphasises that private premises are a place where members of the community are entitled to feel safe and refers to the following passage from Mako:10
Forced entry to premises at night by a number of offenders seeking money, drugs or other property, violence against victims, where weapons are brandished even if no serious injuries are inflicted would require a starting point of 7 years or more. Where a private house is entered the starting point would be increased under the home invasion provisions to around 10 years.
(d)Actual and threatened violence including an attack to the head: Mr Hewitt placed Ms Aitcheson in a headlock, and threatened to break her legs.
(e) Victim impact: Ms Aitcheson received a blood nose and the Crown submits it was clear from the call she made to emergency services that she was traumatised. She had run a significant distance through various residential properties to escape Mr Hewitt.
[23] The Crown submits that although there is no tariff sentencing decision for assault with intent to rob, Mako is relevant as it deals with similar offending with the same maximum penalty. It acknowledges that some care must be taken as the actus reus of theft (essential to a charge of aggravated robbery as in Mako) is absent.
[24] The Crown acknowledges that there was no forced entry to property, but submits that the offending occurred at night; it was a private home; Mr Hewitt was seeking to take Ms Aitcheson’s car; and he committed violence against her while brandishing a weapon. In light of these aggravating features and given that he was also convicted of demanding with menaces, the Crown submits that the appropriate starting point is in the vicinity of six years and six months’ imprisonment.
[25] Taking the starting point for the offending against Ms Watson (six years’ imprisonment) and the starting point for the offending against Ms Aitcheson (six- and-a-half years’ imprisonment), the Crown submits that an adjustment for totality is required. It adopts a global starting point of eight-and-a-half to nine years’ imprisonment.
[26] The Crown then submits that an uplift of six months is appropriate given Mr Hewitt’s long list of previous convictions, and notes that it is not aware of any mitigating features personal to him. Its suggested global starting point is therefore nine to nine-and-a-half years’ imprisonment.
[27] The Crown also submits that a minimum period of imprisonment (MPI) is warranted in this case, referring to the test in s 86 of the Sentencing Act. It refers to the violence involved in this offending and to Mr Hewitt’s criminal history, including the fact that his recent offending has escalated in seriousness. The Crown says that the usual non-parole period of one third of Mr Hewitt’s sentence would be insufficient to meet the purposes of accountability, denunciation and protection of the community. It submits that an MPI of 50 per cent is appropriate.
[28] In written submissions for Mr Hewitt Ms Ghahraman accepts the aggravating factors identified by the Crown. She also accepts the offending against Ms Watson was analogous to the robbery of taxi drivers, addressed as one of the identified indicative sentencing levels in Mako. The five-and-a-half year starting point is accepted.
[29] However, she disputes that the uplift suggested by the Crown in relation to the other offending against Ms Watson is warranted, given the kidnapping charge arises directly from the robbery itself. She says the fact the victim was being confined in her car whilst being robbed is exactly the scenario foreseen and addressed by the Court in Mako, so the starting point is appropriate for the entirety of the offending. In the alternative, Ms Ghahraman submits that the totality principle requires that any uplifts be considered as part of the final consideration of the offending as a whole.
[30] Turning then to the offending against Ms Aitcheson and application of the totality principle, Ms Ghahraman submits the end sentence reached by the Crown is disproportionate to the offending. She says that the lower level of violence and overall seriousness involved in the offending against Ms Aticheson is appropriately reflected in an overall starting point for all offending in the range of seven to eight years’ imprisonment.
[31] In respect of the proposed MPI, Ms Ghahraman says the Crown does not address the statutory factors and that it relies largely on an allegation that defence witnesses gave false evidence at trial – which she says is irrelevant. She submits that neither the seriousness of the offending nor Mr Hewitt’s previous convictions necessitate an MPI – rather, the seriousness of the offending is adequately reflected by a lengthy term of imprisonment. She says that this is by far the most serious offending committed by him and that to impose an MPI on his “first foray” into such offending would pervert the hierarchy of sentencing and the requirement that the Court impose the least restrictive sentence available.
Purposes of sentencing
[32] With regard to the nature of the offending I consider the following principles of sentencing particularly relevant in the present case:
(a) accountability for harm done to the victims and the community;11
(b)promotion in Mr Hewitt of a sense of responsibility for, and an acknowledgment of, that harm;12
(c) denunciation;13
(d) deterrence;14 and
(e) protection of the community.15
Sentencing approach: cumulative or concurrent?
[33] Mr Hewitt is being sentenced on six charges arising out of two incidents, so the question arises whether such sentences should be cumulative or concurrent.
[34] Section 84 of the Sentencing Act states that cumulative sentences are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences. Concurrent sentences are appropriate if the offences for which an offender is being sentenced are of a similar kind and are a connected series of offences. In terms of s 84(3), in determining whether offences are a connected series of offences, the Court may have regard to the time at which they occurred, the overall nature of the offending and any
other relationship between the offences that the Court considers relevant.
11 Sentencing Act 2002, s 7(1)(a).
12 Sentencing Act 2002, s 7(1)(b).
13 Sentencing Act 2002, s 7(1)(e).
14 Sentencing Act 2002, s 7(1)(f).
15 Sentencing Act 2002, s 7(1)(g).
[35] I consider that the offending against Ms Watson and the offending against Ms Aitcheson was similar in kind, and formed a connected series of events in the sense they constituted a spree of offending (fuelled to some extent by methamphetamine consumption) that occurred within the space of half a day. On the first occasion, Mr Hewitt restrained Ms Watson by holding her hair and threatening her with a knife, while demanding her valuables. He forced her to drive at his command, and threatened to cut off her fingers if she did not give him her rings. On the second occasion, Mr Hewitt restrained Ms Aitcheson in a headlock position and threatened her with a baseball bat. He marched her around the room and threatened to break her legs if she did not hand over her car keys. Both sets of offending, within hours of each other, are marked by similar features. I therefore consider that a concurrent approach to Mr Hewitt’s sentencing is appropriate.
[36] Where concurrent sentences are to be imposed, s 85(4) states that the most serious offence must, subject to any maximum penalty for that offence, receive the penalty that is appropriate for the totality of the offending and each of the lesser offences must receive the penalty appropriate to that offence. So a lead offence must be chosen for which a sentence reflecting all of the offending should be imposed.
Starting point
[37] I consider the aggravated robbery of Ms Watson the most serious of the charges for which Mr Hewitt was convicted, and I identify it therefore as the lead offence for sentencing purposes.
[38] I agree with the Crown, as does essentially Ms Ghahraman, about the relevant aggravating factors in relation to that offending. The presence of a knife and actual violence involving an attack to the head are particularly relevant in that regard. The psychological harm to Ms Watson is plain from her victim impact statement and the circumstances around the attack generally also add to its seriousness: it was the middle of the day, a time when people are entitled to feel safe, and Ms Watson was driving her car on a public road. Mr Hewitt’s actions endangered not only Ms Watson but other road users.
[39] I am not particularly persuaded by the Crown’s analogy with the robbery of taxi drivers, as discussed in Mako. There are, in my view, some relatively obvious contextual differences between the two scenarios.
[40] I do draw some guidance from the sentencing notes of Williams J in R v Andersen,16 which concerned broadly comparable offending involving a car-jacking at traffic lights by a defendant who was high on methamphetamine. In that case a mother and her child were in a car, and although a weapon was presented no actual violence was inflicted. The mother and the child were abandoned in an unfamiliar place by the defendant who drove off in the car. In my view, the aggravating features in that case when compared to the present counterbalance each other. A starting point of five years and six months’ imprisonment was imposed in that case.
That aligns with the starting point suggested by the Crown in this case. In my view it appropriately reflects the seriousness of the offending against Ms Watson.
[41] I agree with Ms Ghahraman, in her written submissions, that any uplift in relation to both the kidnapping and male assaults female charges would be inappropriate in that both matters are adequately captured by the aggravating features of the lead offence and have been recognised as such by me.
[42] The car conversion is, however, in a different category and warrants a modest uplift which I assess at three months’ imprisonment. In the result, my provisional starting point on the offences against Ms Watson is five years and nine months’ imprisonment.
The offending against Ms Aitcheson and the totality adjustment
[43] On a concurrent sentencing approach this starting point must be increased to reflect the offences against Ms Aitcheson. In that respect I take the assault with intent to rob as the lead offence in respect of that tranche of offending and I again adopt the sentencing guidelines in R v Mako albeit with the adjustment that the
Crown refers to.17
16 R v Andersen HC Auckland CRI-2006-090-5921, 26 September 2006.
17 R v Mako above n 8.
[44] Like the incident with Ms Watson the assault against Ms Aitcheson involved presentation of a weapon. Again it involved actual violence and serious threats. I do not, however, agree with the Crown that the case is one of forced entry on to a property in the sense envisaged by the Court in Mako. Overall, if this offending was being sentenced in isolation, it would, in my view, attract a sentence of approximately four years to four-and-a-half years’ imprisonment. I would not uplift that sentence on account of the charge of demanding with menaces. The facts supporting that charge are captured in the aggravating features of the assault with intent to rob.
[45] In the context of the starting point I have adopted for the offending against Ms Watson, I consider an uplift of two years and three months’ imprisonment is appropriate to reflect the offending against Ms Aitcheson. This adequately reflects the overall criminality. Any higher uplift would, in my view, risk a crushing sentence out of proportion to Mr Hewitt’s record of offending which, although desultory, is characterised by an absence of previous convictions for serious violent offending and no convictions for offences involving violence at any level for the last
10 years.
[46] That therefore takes my overall starting point to eight years’ imprisonment.
[47] Where only concurrent sentences are to be imposed, s 85 Sentencing Act
2002 requires:
(4) If only concurrent sentences are to be imposed,—
(a) the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and
(b) each of the lesser offences must receive the penalty appropriate to that offence.
[48] The Court of Appeal has said that sound sentencing methodology requires
identification of “notional starting points” in respect of the offending additional to
the lead offence.18 Those notional starting points would then be imposed for each of the additional offences in accordance with s 85(4)(b).
[49] If a separate sentence were to be imposed for kidnapping, the case law suggests this would be at the lower end of the scale.19 A starting point of approximately two years’ imprisonment would have been appropriate in my view.
[50] For the male assaults female charge, I consider a notional starting point of 12 months’ imprisonment would be appropriate. That is the level adopted in the decision of Dobbs v Police where the facts similarly involved a punch to the face and presentation of a weapon.20
[51] For unlawfully taking a motor vehicle, a sentence of around 12 months’
imprisonment would likewise be appropriate.
Aggravating and mitigating factors personal to Mr Hewitt
[52] Despite the absence of recent convictions for violence, Mr Hewitt’s previous criminal history is extensive. There are multiple previous convictions for unlawfully taking a motor vehicle and numerous other dishonesty convictions. This history indicates a sense of entitlement which is also apparent in the index offencing. He also has, as I have identified, historic convictions involving violence.
[53] I am satisfied there is a sufficient nexus between the index offending and Mr Hewitt’s relevant previous convictions to justify an uplift of six months on account of that previous offending. I do so in the interests primarily of deterrence but also public protection.
[54] I note Ms Ghahraman points to Mr Hewitt’s drug dependency, and his hope
to deal with that during his time in custody. I have already indicated that without doing so Mr Hewitt has no future as a contributing and decent member of society.
18 R v Dodd at [37].
19 Taking into account Heke v R [2016] NZCA 38, Boyle v R [2017] NZCA 173.
20 Dobbs v Police [2012] NZHC 3136.
Minimum Period of Imprisonment
[55] If an offender receives a determinate sentence of imprisonment of more than two years, the court may impose an MPI (s 86(1)), that is a period of imprisonment longer than one-third of the length of his or her sentence.21
[56] The court may impose an MPI if satisfied that the one-third default minimum is insufficient either to hold the offender accountable for the harm done, denounce the conduct, deter the offender or others, or protect the community (s 86(2)).
[57] An MPI must not exceed two-thirds of the full term of the sentence
(s 86(4)(a)).
[58] The purpose of the imposition of an MPI is said to bring “a degree of reality to the sentence and the outcome”.22 It is appropriate where the offending is so serious that the prospect of release after one third of the sentence would plainly constitute an inadequate response in the eyes of the community.
[59] The primary consideration is the offender’s level of culpability which is increased by unusual callousness, extreme violence, vulnerable or multiple victims and serious actual or intended consequences.23 The sentencing considerations in ss 7, 8, and 9, including the circumstances of the offender, are relevant in fixing an MPI.24
[60] I do not consider that an MPI is appropriate in this case. The offending, although serious, does not engage the considerations I have identified other than the fact that there are two victims.
[61] By a significant margin this is the longest sentence of imprisonment yet imposed on Mr Hewitt. I consider it sufficient to hold him accountable for his actions as well as to deter others considering similar criminality. The offending
occurred in what was, in my assessment, one drug-fuelled spree. Based on Mr
21 Parole Act 2002, s 84(1) (the default period).
22 R v Brown [2002] 3 NZLR 670 (CA) at [28]
23 R v Brown at [32].
24 R v Brown at [27].
Hewitt’s history it does not appear to be symptomatic of a regular pattern. Indeed it seems to be a break with the previous pattern on non-violent car thefts and other crimes of dishonesty. Moreover, although violence was involved, it could not be described as the extreme violence characterised in many cases where an MPI has been imposed.
[62] Ultimately the Parole Board will be best placed to assess the risk he poses to the community at the time he becomes eligible. That assessment will inevitably depend on Mr Hewitt’s ongoing conduct, including, importantly, his efforts to rehabilitate himself from drug addiction.
Result
[63] In relation to the offence of aggravated robbery, I sentence you, Mr Hewitt, to a term of eight years and six months’ imprisonment.
[64] In respect of the remaining convictions I sentence you to the following sentences which will be served concurrently:
(a) Kidnapping – two years’ imprisonment.
(b) Male assaults female – one year’s imprisonment.
(c) Unlawfully taking a motor vehicle – one year’s imprisonment.
(d) Assault with intent to rob – three years’ imprisonment.
(e) Demanding with menaces – two years’ imprisonment.
Destruction of weapons and drug paraphernalia
[65] The Crown applies for an order for destruction of the knife and baseball bat used in relation to the offending and for destruction of the controlled drugs and drug paraphernalia identified in both Ms Watson’s car and likewise at the garage occupied by Ms Kapa.
[66] The defence says that it is the intention of the defendant to make a complaint to the Independent Police Conduct Authority in relation to some aspects of the police inquiries which led to the charges against Mr Hewitt.
[67] Counsel advised that in fact Mr Hewitt was not himself exercised in this respect but his mother, who addressed me on the issue, says that it would be inappropriate to make an order for destruction pending the outcome of any such inquiry. I cannot identify any relevant reason why the drug paraphernalia and weapons ought not to be destroyed at this stage. Whether Ms Watson was unlawfully in possession of prohibited drugs was not a trial issue and in my view there is no useful purpose in delaying the order for destruction any longer.
[68] I make an order for destruction accordingly.
Muir J
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