R v Higgins
[2024] NZHC 3500
•21 November 2024
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2024-019-000222
[2024] NZHC 3500
THE KING v
FINN ALEXANDER HIGGINS
Hearing: 21 November 2024 Appearances:
J Hamilton and K Dillon for the Crown C D Bean for the Defendant
Sentencing:
21 November 2024
SENTENCING NOTES OF VAN BOHEMEN J
Counsel/Solicitors:
Crown Solicitor, Hamilton C D Bean, Hamilton
R v HIGGINS [2024] NZHC 3500 [21 November 2024]
[1] Finn Higgins, you appear today for sentencing having pleaded guilty to two charges of threatening to kill,1 and one charge each of wounding with intent to cause grievous bodily harm,2 assault with intent to injure,3 dangerous driving4 and failing to stop or ascertain injury.5
[2] Sentencing is a formal process that takes some time. That is because I must explain the reasons for the sentence I am to impose. You and all the people in Court, and any court that reviews this decision, must know the basis upon which I have imposed the sentence.
[3]This is the process I will follow:
(a)First, I will outline the circumstances of your offending.
(b)Secondly, I will consider your personal circumstances as they have been put before the Court.
(c)Thirdly, I will explain the approach to setting the sentence and discuss the requirements of the Sentencing Act 2002 as they apply in this case and in accordance with decisions of the Court of Appeal and the High Court.
(d)Finally, I will determine and impose the sentence I consider appropriate.
The offending
[4] Mr Higgins, on 13 December 2023, you visited Wheelie Bin Services at 39 Mowatt Street, Waharoa and signed a 12-month contract for a wheelie bin rubbish collection service.
1 Crimes Act 1961, s 306(1)(a). Maximum penalty seven years’ imprisonment.
2 Crimes Act, s 188(1). Maximum penalty 14 years’ imprisonment.
3 Section 193. Maximum penalty three years’ imprisonment.
4 Land Transport Act 1998, s 35(1)(a). Maximum penalty three months’ imprisonment or a fine not exceeding $4,500 and six months’ disqualification.
5 Land Transport Act, s 36(1)(c). Maximum penalty five years’ imprisonment or a fine not exceeding $20,000 and 12 months’ disqualification.
[5] About a month later, on 10 January 2024, you returned to Wheelie Bin Services and told the receptionist, Janice Peters, that you no longer wanted the rubbish collection service because of financial constraints and that you wanted a refund. Ms Peters explained that she was not authorised to approve a refund and that you would have to come back the next day to speak with her supervisor.
[6] The next day, you returned to Wheelie Bin Services at approximately midday. You had two children with you, including an infant child in your arms. Ms Peters advised that you had just missed her supervisor who had left the office.
[7] You began to scream and shout at Ms Peters and became very aggressive, telling Ms Peters and Brenna Anderson, another employee, that you were going to murder them. You repeated the threat several times while making gang signs and yelling “sieg heil”.
[8] Ms Andersen signalled for help from another Wheelie Bin Services employee, Nick Andersen, who was her brother and had just arrived on site. You left the office, walked up to Mr Andersen and punched him hard in his neck with a closed fist, causing him to fall onto a nearby car. You and your children then got into your car, reversed into a parked truck and drove off at speed and erratically.
[9] Nearby, Fulton Hogan roadworkers were working on Dunlop Road. A temporary traffic light system and a 30 km per hour speed limit were in place, and there was heavy machinery and road cones along the road. Leaving Mowatt Street, you turned left onto Dunlop Road and drove straight through a red traffic light. You continued to drive erratically at speed, knocking over road cones and swerving between machines.
[10] You stopped your vehicle outside the Waharoa Urupā. Roadworkers approached to check if you were okay. You were immediately aggressive, and an altercation ensued. Some of the workers held you down until you had calmed down. You then got back into your vehicle and drove off.
[11] Again, ignoring a red traffic light, you accelerated towards David Rodger, a roadworker working on Dunlop Road. You intentionally swerved towards Mr Rodger, running him over and causing him serious injuries. You narrowly missed a second worker. As you have heard, Mr Rodger sustained multiple broken bones, a shattered pelvis, internal bleeding, multiple broken teeth, nerve damage, a head injury and other injuries. He remained in intensive care for four weeks. His recovery is ongoing and his rehabilitation is going to take at least another 18 months.
[12] After hitting Mr Rodger, you did not stop your vehicle. You fled the scene. Police arrested you a short time later.
[13] In short, your actions were appalling, and you caused a great deal of harm to entirely innocent people who were just getting on with their lives until you crashed into them.
Victim impact statements
[14] We have heard the victim impact statement from Mr Rodger. It is clear that your actions caused very serious injury to Mr Rodger and that he is deeply hurt and upset about what happened. He has a long road to recovery ahead but considers himself lucky to have survived. I agree with Mr Rodger and commend him for his extraordinary bravery in going through various processes he has had to go through and in coming to Court today.
[15] I have also read the statements from Ms Peters and Ms Andersen. Your actions caused them both great distress.
Personal circumstances
[16] I have read the pre-sentence report and the comprehensive alcohol and drug assessment.
[17] Mr Higgins, you are a 29-year-old male born in Gisborne. You have been in a relationship for eight years and, together with your partner, you have a 19-month-old
child. At the time of the offending, you were on a benefit and financially reliant on your partner.
[18] In your explanation for the offending, you told the report writer that you believed the Wheelie Bin Services staff were being unfair because they do not like your partner’s family. You say you did not go there with the intention of being violent but that you “lost it” and, when you saw Mr Andersen approaching, you felt triggered and immediately went to fight him. You say today in your letters that this was a drug- fuelled rage, but as Ms Hamilton has pointed out, the indications from the blood test do not suggest that.
[19] The alcohol and drug assessment records you suffered significant trauma in your childhood because your father was not present and he did not provide you emotional care. You say you were often bullied as a young person which led you to develop a “fight back” mentality. While you say you are not a gang member, you note past associations with the Mongrel Mob where you say you witnessed a lot of gang activity. You say that, if any person approaches you and you perceive it to be even a slight level of aggression, you resort to fighting. You report wanting to take a different path in life for the benefit of your son. You also told Corrections staff that you are trying to be a better Christian and that the Bible motivates you to make change in your life.
[20] The pre-sentence report assesses a high likelihood of reoffending and harm due to the serious nature of your offending. You have a propensity for violence and you are yet to complete any rehabilitative programmes to assist with anger management. The report records you have committed six offences while on bail between September 2022 and July 2024. You have 10 previous convictions dating back to 2013, including family violence offending, possession of utensils, assaulting a police officer, driving while disqualified, theft and fighting in a public place.
[21] A Corrections departmental test identified you as being at a high risk of substance use. The report records that you have a daily dependence on drugs, that you report needing to be high on something and that you will try any drug you can get your hands on. You have admitted to past cannabis and methamphetamine use.
[22] The alcohol and drug assessment considers you have shown insight into your addictions and a sense of determination to change yourself. It recommends you be referred to therapy, undergo a medication review, be referred to a neuropsychologist, undertake a drug treatment programme and receive a head injury assessment.
[23] The pre-sentence report recommends a sentence of imprisonment without release conditions.
Approach to sentencing
[24]There are two distinct stages to the sentencing process:6
(a)First, I must determine the appropriate starting point, adjusting for any aggravating and mitigating features of the offending itself.
(b)Secondly, I must apply uplifts or discounts to that adjusted starting point for any aggravating and mitigating factors personal to you, including your guilty pleas.
[25] In sentencing today, I must be guided by the purposes and principles in ss 7 and 8 of the Sentencing Act. Of particular relevance in your case, Mr Higgins, I consider the sentence must act as a deterrent so that you and others do not commit similar offences in the future; it must hold you accountable for the harm you have caused; it must denounce your conduct and promote a sense of responsibility for the harm caused; it must protect the community; and it must assist with your rehabilitation.7
[26] In fixing a sentence, I have regard to the gravity of the offending and the degree of culpability, the desirability of consistency with sentences for similar offending, the impact of the offending on the victims, your personal and family background and the need to impose the least restrictive outcome that is appropriate in the circumstances.8
6 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].
7 Sentencing Act 2002, s 7(1).
8 Section 8.
Stage one: starting point
[27] The starting point for setting a sentence is set principally by reference to the most serious offence — in your case, wounding with intent to cause grievous bodily harm.
[28] The maximum penalty for that offence is 14 years’ imprisonment. The Court of Appeal has given a guideline decision for this kind of offending in R v Taueki.9 The judgment sets out three sentencing bands:
(a)Band one, from three to six years, is appropriate for offending involving violence at the lower end of the spectrum of offences involving grievous bodily harm.
(b)Band two, from five to 10 years, is appropriate where the offending involves two or three aggravating factors.
(c)Band three, from nine to 14 years, normally involves serious offending which has three or more aggravating factors, where the combination of these factors is particularly grave.
Aggravating factors
[29] Ms Hamilton, the Crown solicitor, submits there were four aggravating factors of your offending: use of a weapon; extreme violence; serious injury; and vulnerability of the victim. Ms Hamilton submits the offending falls at the upper end of band two and a starting point of eight years’ imprisonment is warranted.
[30] Your counsel, Mr Bean, accepts the aggravating factors of use of a weapon and serious injury were present. However, he contends the offending was not an incident of extreme violence, prolonged in nature or repetitive. Mr Bean says the offending was impulsive and not premeditated. He agrees the offending falls in band 2 but says a starting point of six years’ imprisonment is appropriate.
9 R v Taueki [2005] 3 NZLR 372 (CA).
[31] I do not accept Mr Bean’s characterisation of events. Your attack on Mr Rodger may not have been premediated in the sense you had not planned to do what you did. But you deliberately aimed your car at him after you had been violent towards a number of people over a sustained period. The attack was much more than impulsive.
[32] I agree with Ms Hamilton that the offending involves the four aggravating features she has identified, including extreme violence and a highly vulnerable victim. I also agree that the offending should be considered as falling within Band 2 of Taueki and towards the upper end of that band. Where it should be placed within the band requires consideration of starting points adopted in broadly comparable cases, given that one of the principles of sentencing is the desirability of consistency with sentences for similar offending.
[33] Mr Bean says your offending is comparable with that in R v A, where a starting point of six years and two months’ imprisonment was adopted.10 Ms Hamilton has referred me to a wider range of decisions where higher and lower starting points were adopted, including R v Bell, which also has some similarities to your offending but where a starting point of eight years’ imprisonment was adopted.11
[34] I have considered all of the decisions referred to by counsel to assess where your offending falls, having regard to the wide range of circumstances in those decisions. In some respects, your offending stands apart. Some of the other decisions involved victims and defendants who were known to each other. In some of those cases, there was an element of provocation, which was clearly not the case here. Your assault on Mr Rodger was entirely unprovoked and you had never met him before. In that respect, your offending has closer parallels to that in R v A and Bell than to the offending in the other decisions.
[35] However, in one important respect, your offending is different from that in R v A and Bell. The offending in those cases occurred in a random act, occurring instantly and without any prelude involving the victims. In your case, however, your
10 R v A [2020] NZHC 1169.
11 R v Bell [2023] NZHC 416.
attack on Mr Rodger had some lead up, even excluding what happened at Wheelie Bin Services. You had driven through the road works on Dunlop Road, stopped at the Urupā, had been checked on by other road workers and then you drove off deliberately swerving to target Mr Rodger. The attack was not premediated in the sense you had planned it. But it was deliberate and it was not spur of the moment. Whether or not you were under the influence of drugs is unclear but that does not affect your culpability.
[36] I consider your offending to be considerably more serious than that in R v A and more like that in Bell. While the charge in Bell was attempted murder, it carries the same maximum penalty as the lead charge you face. However, in Bell, there were two victims and two charges and the starting point of eight years’ imprisonment was an overall one for both charges.
[37] For these reasons, I consider the starting point in your case should be seven years’ imprisonment.
Totality uplifts
[38] Having regard to the principle that a sentence must take into consideration the totality of the offending, Ms Hamilton and Mr Bean both suggest an uplift of a further six months is an appropriate addition for the balance of the offending, but Ms Hamilton qualifies that by reference to the starting point I adopt.
[39] Given the unprovoked attack on Mr Anderson and your highly dangerous driving with two vulnerable children on board, I am satisfied that an uplift of nine months is required to reflect the seriousness of the other offending.
Adjusted starting point
[40] This results in an adjusted starting point of seven years and nine months’ imprisonment.
Stage two: personal circumstances
[41] Mr Higgins, I now consider the aggravating and mitigating features personal to you as an offender.
Aggravating factors
[42] Ms Hamilton notes you have previous convictions for violent offending for which you were sentenced in March 2023. At the time of that offending, you were subject to a sentence of supervision. Ms Hamilton submits a three-month uplift is appropriate because offending while subject to a rehabilitative sentence is an aggravating factor.
[43] Mr Bean says you have no relevant previous convictions and no uplift is necessary.
[44] I do not agree with that submission. The circumstances of your other offending may have been different, but they involved violence, including assaults on a police officer, assaults on a person in a family relationship and wilful damage. Some of that offending occurred while you were serving a sentence of supervision.
[45] In these circumstances, I am satisfied that a further uplift of three months’ imprisonment is warranted.
Mitigating factors
[46] Mr Bean submits a 25 per cent discount is appropriate to reflect remorse, cultural factors and addiction as discussed in the drug and alcohol assessment.
[47] Ms Hamilton submits that any credit for personal circumstances should be limited to five per cent. She says the drug and alcohol assessment relies largely on your self-reporting and no medical evidence has been provided in relation to the claims of depression, anxiety and ADHD. As Ms Hamilton notes, the letters of remorse have been produced only this morning.
[48] I agree with Ms Hamilton that limited weight can be given to a report based entirely on your own account and without any evidence of tangible steps to address your obvious drug and alcohol and anger control issues. The letters of remorse are fulsome and appropriate but would have carried more weight had they been produced earlier.
[49] However, I accept that you have had a number of challenges in your life, and I am prepared to make a discount of 10 per cent in recognition of these and the fact you wrote the letters of remorse, and in recognition of the interests of your young son who needs you in his life.
Guilty pleas
[50] Ms Hamilton notes you initially pleaded not guilty to the charges and a reserve trial was set down for May 2025. You pleaded guilty to the charges on 3 September 2024. Ms Hamilton submits a discount of 15 per cent is appropriate.
[51] Mr Bean submits a 20 per cent discount should be applied for your guilty pleas, having regard to the circumstances that applied when the Crown took over responsibility for the file.
[52] Your guilty pleas were entered some nine months after your arrest, despite the virtual inevitability of conviction given the circumstances of your offending. However, your guilty pleas have at least spared your victims from having to give evidence in Court. In these circumstances, I accept that a discount of 15 per cent is appropriate.
Total uplifts and discounts for personal factors
[53] Taken together, these uplifts and discounts produce a net total discount of 22 per cent, which equates to 20 months.
Minimum period of imprisonment
[54] Given your drug and alcohol issues, and the indications you gave to the writer of the drug and alcohol assessment that you are insightful and motivated to change, I
agree with Ms Hamilton that the Parole Board is best placed to decide when you should be released from prison.
[55] For these reasons, I will not impose a minimum period of imprisonment. I urge you to understand, however, that your release date is likely to depend on whether the Board is persuaded that you have engaged genuinely with rehabilitation programmes available to you.
Period of disqualification
[56] Because you have been convicted of an offence under s 36(1) of the Land Transport Act 1988, I am required to impose a period of disqualification from driving for at least one year, unless I consider there are special reasons relating to the offence that mean a period of disqualification should not be imposed. Your counsel has not suggested there are such special reasons, and I can see none.
[57] To be meaningful, any period of disqualification should follow your release from prison. Given that release will be some years away, I am satisfied that a period of disqualification of two years will be sufficient. It will require that you re-sit a driver’s licence test before you can drive again.
Sentence
[58]Mr Higgins, please stand.
[59] On the charge of wounding with intent to cause grievous bodily harm, I sentence you to a term of imprisonment of six years and one month.
[60] On the two charges of threating to kill, I sentence you to a term of imprisonment of two years.
[61] On the charges of assault with intent to injure, dangerous driving and failing to stop or ascertain injury, I sentence you to terms of imprisonment of one year in each case.
[62]All sentences are to be served concurrently.
[63] I also order that you are disqualified from driving for a period of two years from the date of your release from prison.
[64]Mr Higgins, you may stand down.
Addendum
[65] After Mr Higgins had stood down, Ms Hamilton confirmed that the remaining charges against Mr Higgins would not be proceeded with.
[66] I discharged Mr Higgins on those charges, being charges 5 and 7 of the Crown charge notice dated 23 April 2024.
G J van Bohemen J