R v HLH HC Hamilton CRI 2010-219-343

[2011] NZHC 2001

NOTE:  NAME AND IDENTIFYING PARTICULARS OF HLH PROHIBITED FROM PUBLICATION BY S 438(3) CHILDREN, YOUNG PERSONS AND THEIR FAMILIES ACT 1989.

ORDER PROHIBITING PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF THH.

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2010-219-343

THE QUEEN

v

HLH AND THH

Hearing:         13 December 2011

Counsel:         J N Foster for Crown

M Robb for HLH R Boot for THH

Judgment:      13 December 2011

SENTENCING NOTES OF HEATH J

Sentence imposed:     THH

Attempting to cause GBH with intent to do so

4 years and 4 months imprisonment Injuring with intent to injure Convicted and discharged Threatening to kill

Convicted and discharged

HLH

Attempting to cause GBH with intent to do so

4 years imprisonment Assault with intent to injure Convicted and discharged

R V HLH AND THH HC HAM CRI 2010-219-343 13 December 2011

Introduction

[1]      THH and HLH, you each appear for sentence today having pleaded guilty to charges arising out of an incident that occurred at your home, in Pukete, on 26

December 2010.   During the course of that incident a uniformed police officer, carrying out his lawful duties on behalf of the community, was subjected to an assault involving manual blows to the head and the use of weapons, in the form of a knife and machete.

[2]      The seriousness of your offending must now be obvious to both of you.   I hope you realise that the Courts must respond firmly to any violent conduct directed at police officers who are responsible for keeping members of the community safe.

[3]      THH, at the time of the incident, you were aged 16 years.  You have pleaded guilty to three charges: attempting to cause grievous bodily harm with intent to do so, injuring with intent to injure and threatening to kill.  The Crown has offered no evidence on other charges.  On counts 5 and 7 of the incident you are discharged.

[4]      HLH, at the time you had just turned 14 years.  You have pleaded guilty to charges of attempting to cause grievous bodily harm, with intent to do so, and assault with intent to injure.  The Crown has offered no evidence on other charges.  You are discharged on counts 1 and 3 of the indictment.

[5]      The lead charges, for each of you, are attempting to cause grievous bodily harm to Constable Osborn, with intent to do so.  In your case, THH, that was with a knife aimed at the constable’s head and neck area.  The maximum penalty for that offence is one of 7 years imprisonment.

[6]      In your case HLH, it was the use of a machete, also aimed in the region of the constable’s head.   That too carries a maximum penalty of 7 years imprisonment. That is the only charge on which you can be sentenced to imprisonment.  The other charges are ones which do not carry the possibility of imprisonment for anyone

under the age of 17 years.  Obviously, if you had been over the age of 17 years, those charges would have resulted in a term of imprisonment.

Facts

[7]      The two of you are brothers.  At the relevant time you were living together with other family members.

[8]      On Boxing Day last year, there had been much socialising at your home. Both of you, despite your age, had consumed quantities of alcohol.  What followed was fuelled by alcohol.

[9]      A family  argument  developed,  in  which  you  were  both  involved.    The argument escalated into a physical fight, during which you were among a group of three that spilt out of the house and onto the street before moving back into the lounge area of the house.

[10]     Members of the public were so concerned that emergency calls were made to the police.  Constable Osborn, a police officer, was dispatched to the address.  On his arrival at the address, he could see a group fighting in the lounge room of the house. He entered and announced his presence to the group.  It was clear he was a police officer.  He was wearing a police uniform.

[11]     THH you were immediately abusive, making it clear in words of one syllable, that the constable should get out of the house.  There was also racial abuse directed at him.

[12]     Ultimately the physical altercation between family members ended.   THH was taken by a family member out of the house through a side door into the rear of the property near a boundary fence.

[13]     Constable Osborn followed the group to the rear of the address. At this stage, THH continued to abuse the constable and made threats to him.  At one stage, it was

made clear that THH intended to kill.   You advanced at that time on Constable

Osborn with your fists clenched.

[14]     Constable Osborn backed away while some family members attempted to restrain THH.  At the same time you, HLH, were also abusing Constable Osborn. You told him he should get off your land, that he had no right to be there.

[15]     You followed Constable Osborn as he retreated from you and continued to yell threatening comments.

[16]     Other family members again attempted to restrain THH but THH lurched towards the constable yelling “come on then, I’m going to kill you” and “I’m going to cut you up”.

[17]     Because of the proximity of THH to Constable Osborn, he reached out, took hold of your pants and told you, you were under arrest.  A struggle then began.  At this stage HLH, you went to another part of the property and obtained a machete.

[18]     In the meantime, T had pulled out a knife that he had on his person.  It was folded and had a 7cm blade.  The blade was extended and lunged towards Constable Osborn, to the point where it was within 15cm of his face at the time that THH was restrained by family members.

[19]   Constable Osborn stepped back and extended a telescopic baton in his possession.  He instructed THH to drop the knife. As he got the telescopic baton to a ready position over his right shoulder, Constable Osborn was attacked by HLH, from the side.  He was attacked with a machete.  The nature of the attack meant that it was a surprise to Constable Osborn.

[20]     Fortuitously, the baton assisted in deflecting the machete.  The machete was directed  at  the  right  hand  side  of  Constable  Osborn’s  head  and  neck  area.    In response to this, Constable Osborn turned his body towards H who then executed another slashing blow with the machete.  That blow travelled at a 45 degree angle

from HLH’s right shoulder towards the constable’s face and neck.  The attempt to hit

the constable at that time missed his head and neck by about a centimetre.

[21]     At this stage Constable Osborn was able to retreat and deploy pepper spray. He then went away from the front of the property, while you went inside the house with other members of the family.

[22]    Eventually other police staff arrived.  Attempts were made to quell the disturbance.   Armed police arriving was announced.   By this stage you had put yourselves in a bedroom wardrobe.

[23]     When confronted in that position you did not stop as requested.  Rather, THH burst out of the wardrobe and threw two punches at Constable Osborn, both with a closed fist.  They struck him in the area of the left eye.  HLH also began to attack Constable Osborn, punching him twice in the back of the head.   Ultimately, and partly through the use of and threats of taser by other police officers, order was restored and you were taken away from the property.

[24]     When spoken to on 27 December 2010, THH, you explained to the police that you took out your pocket knife and went to “shank” the police officer. You were asked to explain what you meant by the word “shank”.  You said “you were going to stab him”.  You acknowledged that the reason you did not ultimately use the knife against Constable Osborn was because he was being restrained by others.

[25]     In November 2011, when spoken to by the pre-sentence report writer, HLH you said that you were frustrated when Constable Osborn attempted to arrest your brother and you then grabbed the machete and went to attack the police.  After the first blow had been blocked by the baton, you attempted to strike again but said you missed him completely.

[26]     You reported a negative view of the police saying “I know they’re doing their job, but it pisses me off”.

Submissions

[27]     For the Crown, Ms Foster, has characterised the offending as explosive acts of violence involving the use of lethal weapons against a police officer in the execution  of  his  duty.    She  submits  a  deterrent  sentence  is  required  to  reflect society’s need to protect police officers from attacks of this kind.   She points to statistical evidence suggesting that the number of incidents involving assaults on police officers has risen steadily.  There appear to have been about 450 such assaults in the 2009/10 year.

[28]     For you, THH, Mr Boot has emphasised a number of mitigating factors.  One is your youth. Another is the entry of guilty pleas. A third is remorse.

[29]     Mr Robb, for you, HLH, has emphasised your younger age, the frustration that you felt about the constable’s presence, the way in which you reacted to negative influences around you and the lack of any involvement in dual assaults on the police officer by you and THH.

Analysis

[30]     In general terms, I consider this offending was close to the worst of its type. Had either the machete or the knife actually entered Constable Osborn’s body in the region of the face or neck, it is likely that both of you would be here today to face much more serious charges.  Death could well have resulted from what you did that day.

[31]     Your conduct was appalling. After initial verbal abuse, you embarked upon a sustained attack on the constable.  You used weapons to do so.  There were manual blows to his head. To an extent you acted together, in the sense that HLH went to get the machete and when he returned to use it, THH was in the process of using the knife.

[32]     For each of you, I take the lead charge as the one of attempting to do grievous bodily harm, with intent to do so.  The proper approach, in my view, is to take as a

starting point a term of imprisonment which reflects the totality of the offending, even though (because of your ages) I cannot sentence either of you to a term of imprisonment on other charges.

[33]     In this case the sentencing goals are clear.  Your conduct must be denounced. You must be held accountable for your actions.  I must take account of the effect of the crimes on both the victim and the wider community.  I must impose a sentence that is likely to deter others from acting in this way towards a law enforcement officer performing his or her duty.

[34]     The effects on the victim are two-fold.   First, there were physical injuries. But, fortunately they were relatively minor.   It is the ongoing psychological harm that you have done to a fine person who held a position as a police officer within the community that is most significant.   I am not even sure now whether you really understand the significance of an assault on a law enforcement officer of that type.  It was shocking.

[35]     This man was a committed police officer whose dedication to the protection of the community is obvious and admirable.  Your actions, in the way in which they impacted on the constable and had the potential to cause other officers to reflect on whether they wish to subject themselves to violence of this type, has had an effect that the community can ill afford.

[36]     THH, the aggravating features of your offending include the initiation of the confrontation by your verbal abuse of the constable and your threat to kill him.  You made it clear at the time that you intended to cut him.  In a subsequent statement to the police, you acknowledged that you intended to stab him.  The blade got as close to the constable’s face as it was possible to do so, given the restraint that was being placed upon you.  Had you not been restrained your acts could have resulted in much more serious physical harm.  You later compounded your offending by punching the officer in the head with a closed fist.

[37]     The maximum penalty is 7 years imprisonment.   Before taking account of mitigating factors, I use a starting point of 6 years 8 months.

[38]     There is one personal aggravating factor relating to you.  That is the disregard shown to the justice system by offending in this way while on bail to face Youth Court charges.  I increase the starting point by one month to reflect that factor.

[39]     In mitigation, I give credit for your age, remorse and guilty pleas.  While a 16 year old should be expected to have an understanding of the consequences of violent acts, scientific research has established that there are neurological influences on young people that make them more vulnerable to negative influences and more impulsive than adults in their actions.  Having said that, anyone of the age of 14 or

16 years should know that if you put a knife or a machete into the body of someone around the head, you could cause death. That does not take too much working out.

[40]     I consider that 15% should be allowed for age and 5% for remorse.  For the guilty pleas I propose to allow a credit of 20%.  That makes the end sentence on you, THH, one of 4 years 4 months imprisonment.

[41]     HLH, I consider that your aggravating factors are of a similar type to THH’s. The most significant is the fact that you deliberately went to get the machete and tried on two occasions to hit the officer with it.  It is only a matter of luck that you are not here today facing a homicide charge.  I take the same starting point of 6 years

8 months imprisonment.

[42]     As for mitigation, you were younger, 14 years; and you had only just turned

14 years.  You are entitled to greater credit for your age and about the same as THH for remorse.  Your guilty pleas will also attract the same credit.  I take account of the circumstances in which you found yourself and the way in which, at least by some people present, you might have seen yourself as being encouraged to act in this way.

[43]     I allow 20% for youth and 5% for remorse.  A credit of 20% is given for the guilty pleas. That will leave your sentence as one of 4 years imprisonment.

[44]     I do not relish the prospect of sending the two of you to prison.  But here, there is no option.   Your acts were such that this is the only way in which the community can be seen to be vindicated in meeting the nature of your offending.

[45]     I do not propose to impose a minimum sentence.  The reason for that is this. The sentences are reasonably lengthy. You would be entitled to apply for parole after serving one-third of them.   The reason for denial of parole is most likely to be whether  you  continue  to  be  behaving  in  a  way  that  the  community  requires protection from you.   That issue can be determined by the Parole Board at the relevant time.  I see no reason to impose a minimum sentence to meet the sentencing goals otherwise required.

Results

[46]     THH, on the charge of attempted grievous bodily harm you are sentenced to a term of 4 years and 4 months imprisonment.  On the other charges, you are convicted and discharged.

[47]     HLH, on the charge of attempted grievous bodily harm, you are sentenced to a term of imprisonment of 4 years.  On the remaining charge you are convicted and discharged.

Name suppression

[48]     As HLH continues to be within the age of jurisdiction of the Children Young

Persons and Their Families Act, his name must be suppressed from publication.

[49]     In   the   circumstances,   publication   of   T’s   name   could   identify   HLH. Therefore, there will be an order suppressing the name and identifying particulars of THH. The statutory limitation applies with regard to HLH.

[50]     Stand down.

Solicitors:

Crown Solicitor, Hamilton

Counsel:
M Robb, Hamilton

R Boot, Hamilton

P R Heath J