R v Hona

[2014] NZHC 12

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-019-8066 [2014] NZHC 12

THE QUEEN

v

RICKY JOHN HONA

Hearing:                   20 January 2014

Counsel:                  T V Clark for the Crown

M Sturm for the Prisoner

Sentence:                 20 January 2014

SENTENCING NOTES OF BROWN J

Solicitors:      Crown Solicitor, Hamilton

Counsel:       M Sturm, Hamilton

R v HONA [2014] NZHC 12 [20 January 2014]

[1]      Mr Hona you can remain seated until I ask you to stand.

[2]      You appear for sentence today having pleaded guilty on Friday 15 November

2013 in Hamilton to two charges: one for kidnapping and one for injuring with intent to injure.   The first of those (kidnapping) carries a maximum penalty of 14 years imprisonment and the second (injuring with intent) carries a maximum of five years imprisonment.

[3]      You  had  sought  a  sentencing  indication  through  your  counsel  and  on

14 November 2013, following an oral hearing, I gave you an indication with the standard duration of five working days to apply for the acceptance of that indication. You entered your guilty plea while that indication was still open to you.

Background facts

[4]      The background is reasonably straight forward.   On Friday 14 December

2012, mid-evening (12.30 pm), you were travelling in a vehicle with two other accused.  A dispute had earlier arisen between the complainant and one of your co- accused in respect of a car which your co-accused believed that the complainant had stolen and sold to a wrecking yard.

[5]      The three of you saw the complainant in Huntly. At first he hid and after you failed to locate him at a caravan park you then left but later saw him hiding in a bush.  The three of you stopped the vehicle and began chasing the complainant.  He was caught, placed inside the vehicle and once there all three of you began punching and kicking him before another of the accused drove the vehicle away.

[6]      You took the complainant to a picnic area near the Huntly Power Station where  he  was  pulled  from  the  vehicle  and  you  and  the  other  accused  began punching, kicking and stomping him.   One of the other accused then removed a chainsaw from the vehicle and gave it to yet another accused who ran it in close proximity to the complainant.   The three of you then left after an attack that was estimated to have lasted about one hour.

[7]      As a result of the attack the complainant suffered multiple contusions to the face and body, a cut to the bridge of his nose and bruising to eyes, upper lip and sore legs, chest and back.   I have today had read to me by Ms Clark a Victim Impact Statement of the complainant which verifies those injuries and his feelings as a result of them.

[8]      You have seven previous convictions.  Six are for driving offences, one for the possession of cannabis.   I do not consider any of them to be relevant to your current offending.

Sentencing indication: principles and purposes of sentencing

[9]      In providing my sentencing indication I took into account a number of the sentencing purposes and principles in the Sentencing Act 2002.  The relevant ones which I took into account included:

(a)       the fact that you are required to be held accountable for the harm done to the victim and the community by your offending;

(b)the   need   to    promote    in   you   a    sense    of   responsibility   and acknowledgement for that harm;

(c)       denouncing  your  conduct,  deterring  you  and  other  persons  from offending, protecting the community; and

(d)      assisting you in your rehabilitation and reintegration into society. [10]          I also took into account the principles of sentencing set out in s 8 of the Act.

[11]     In fixing the sentence the approach I followed was that established by the Court of Appeal in R v Taueki.1   In brief that involves considering the circumstances and seriousness of the offending, setting what is known as a starting point with the aid of guideline decisions, then considering the mitigating features that might reduce

the starting point and if there is more than one offence, considering which offence to focus on and what effect the other offence would have on the sentence.

[12]     Because I considered the kidnapping was ancillary to the offence of injuring with intent to injure, I took the latter offence as the lead offence.  I considered that there were a number of aggravating factors:

(a)       There were multiple attackers, three in total;

(b)      There was the attacking of the complainant’s head;

(c)      There was the fact of vigilante action, although it was drawn to my attention that your involvement was minimal which is reflected in the different charges laid against you from the other accused; and

(d)The degree of premediation in that the complainant was searched for after his initial sighting.

[13]     I considered that a starting point of two years and three months for the lead charge was appropriate with an uplift of nine months for the kidnapping, resulting in a starting point of three years imprisonment.

[14]     In terms of mitigating factors I had regard to your age, being 22 at the time you committed the offence.  I regarded all the reasons in Churchward v R2   as being applicable to you and gave a generous 20 per cent discount for your youth and your prospects of rehabilitation.  In that regard I placed considerable emphasis on the job you have as a trainee baker and the many letters of recommendation to your credit that had been provided to the Court.

[15]     I also allowed a discount of two months imprisonment for the fact that you have endured bail conditions involving a curfew for 11 months.  So far as discount for guilty plea was concerned I opted for a figure of 22 per cent (which was between the figures proposed by your counsel and counsel for the Crown).

[16]     In the result my sentencing indication to you was a term of imprisonment of one year and nine months which was a period which made home detention a possibility which I considered was very important for you because you are still a young man at 23 years of age, you clearly had good family support and a good prospect of turning your life around given the work opportunities available to you.

[17]     That  sentencing  indication  is  binding  in  terms  of  s  116  of  the Criminal Procedure Act 2011.   The additional information available to me is the full pre- sentence report dated 7 January 2014 and it does not materially affect the basis on which the sentencing indication was given.

The pre-sentence report

[18]     With one qualification, to which I refer below, you are regarded as suitable for an electronically monitored sentence at your current residence in Huntly.   The address which has been assessed by the Probation Officer is approximately two kilometres from the nearest Community Probation Office and the property and the only other adult occupant are both deemed suitable for the purposes of an electronically monitored sentence.

[19]     However the pre-sentence report notes that were you to be sentenced to home detention you would lose your current employment.   You are employed as a despatcher at a bakery and the reports which the Court had received of your employment history are favourable.  The sentencing report suggests that you are the sole provider for your family and loss of employment would remove a protective factor.

[20]     The pre-sentence report proceeds to suggest a sentence of a combination of community detention, community work and supervision.  It suggests that a sentence of community detention  would allow you to continue working and in  that way provide for your family and to be a contributing member of the community.   It is further suggested that a rehabilitative sentence of supervision would allow you to address your offending, related needs, as well as providing Community Probation an opportunity  to  work  with  you  and  oversee  your  progress  through  counselling. Finally, a sentence of community work would provide a further additional punitive

element for your offending and certainly that course of action has the advantage that it would permit you with certainty to continue with your paid employment and to support your family.

Counsels’ submissions

[21]     Ms Clark for the Crown has made a strong submission that the initial penalty that was under consideration was a term of imprisonment and that the offending that is involved justifies a term of imprisonment.  She then submits that home detention is the only alternative that can properly be considered to that term of imprisonment. She also makes the submission on the basis of discussions with personnel in the Hamilton  Probation  Service that  there  is  the  possibility at  least  of  employment continuing  under  a  home  detention  regime,  albeit  that  would  be  subject  to discussions with your employer and it would involve, at least, the institution in the workplace of some procedures for facilitating electronic monitoring there.

[22]     She criticises the recommendation of the Probation Officer on the basis that it inappropriately prioritises your circumstances above everything else in terms of the, as it were, package of penalties which are recommended.

[23]     Mr Sturm in responding to that submission submits that the recommendations which are contained in the pre-sentence report are a best-fit for you in as much that they provide a degree of punitive element and they would address your rehabilitative needs and they would collectively amount to the least restrictive outcome in terms of the  available  penalties.     Mr  Sturm  emphasises  that  the  package  of  penalties comprised in the sentence suggested in the pre-sentence report is not a light option.

Discussion

[24]     Having listened carefully to the submissions of your counsel and counsel for the Crown I have two points of concern.  The first is that a sentence of community detention is governed by s 69C of the Sentencing Act which requires the Court to be satisfied of certain matters.

[25]     In that regard I have given careful consideration to whether a sentence of community detention would achieve one or more of the purposes referred to in s 69C(1)(a)(ii)   which   deals   with   issues   of   accountability,   denunciation   and deterrence.  I consider that purposes (a) and (b) of s 7(1) are likely to be achieved. But I also consider that the alternative requirement in s 69C(1)(a)(i) would be met, namely that the sentence would reduce the likelihood of further offending by restricting your movements during specified periods.

[26]     The second aspect of concern is the recent incident referred to in appendix 1 of the pre-sentence report, notably the incident on 2 January 2014 when the police were  called  to  your  address  in  Huntly  and  you  were  found  to  be  drunk  and disorderly.  That incident led to the Police having concerns about your being subject to even an electronically monitored sentence.

[27]     Your counsel has explained the circumstances whereby there was an incident at your home on that day – the day after New Year.  The circumstances were that there were a number of family visiting and a family dispute arose in respect of which he submits, on your instructions, that you were on the periphery.   In that regard, although the police were called, I do note that no charge resulted from that incident, unfortunate and distressing as it is.

[28]     There is still a further factor, and that is the issue of consistency of penalty. Ms Clark has asked me to read the sentencing indication of Asher J in respect of your co-accused.  I indicated that I was prepared to do so provided Mr Sturm did not oppose that course and he did not oppose that.   Ms Clark makes the point that Asher J  may  have  been  influenced  in  the  sentencing  indication  which  he  gave another of your co-accused by the sentencing indication that I had already given to you and she refers to the parity difficulties that would, in her submission, follow were I to impose a sentence of the nature proposed in the pre-sentence report.

[29]     I recognise the difficulty in concept but I do note, as Asher J records in the sentencing indication which he provided, that there was a difference between your offending and the offending of the particular co-accused under consideration in as

much that you did not face the assault charge relating to the chainsaw and I think there are degrees of difference between you and the co-accused under consideration.

[30]     I view the matter as Mr Sturm anticipated in his submissions as quite finely balance.   But having considered the submissions of Mr Sturm and counsel for the Crown, the relevant sentencing principles, the requirement to impose the least restrictive outcome that is appropriate in the circumstances, and my assessment that your prospects of rehabilitation will be best enhanced if there is a guarantee that you remain in employment in a supportive environment (which I consider is by no means certain in a home detention context) I propose to impose a sentence of the nature recommended in the pre-sentence report.

Sentence

[31]     Mr Hona would you please stand.  I am sentencing Mr Hona to a combination of community detention, supervision and community work.

[32]     You are sentenced to community detention for the maximum period of six months.  You are to reside at your current address during the curfew hours for the duration of the sentence.  The curfew hours which are structured in order to allow you to continue working and which are in total the maximum curfew hours provided for in the statute are:

(a)       4.00 pm Sunday to 3.00 am Monday; (b)         4.00 pm Monday to 3.00 am Tuesday;

(c)       4.00 pm Tuesday to 3.00 am Wednesday; (d)   4.00 pm Wednesday to 3.00 am Thursday; (e)    4.00 pm Thursday to 3.00 am Friday;

(f)       7.00 pm Friday to 7.00 am Saturday; and

(g)      7.00 pm Saturday to 7.00 am Sunday.

[33]     The date of the first curfew will be 23 January 2014.

[34]     I further sentence you to a period of supervision under s 45 for a period of one year.   That supervision order is subject not only to the standard conditions in s 49 of the Sentencing Act but also the following special conditions:

(a)      To undertake an appropriate alcohol and drug assessment and attend and   complete   any   treatment,   counselling,   and/or   programme, including residential treatment if required, as recommended by the assessment, to the satisfaction of the Service Provider and the Probation Officer;

(b)To attend, participate in and complete an appropriate Anger Management/Violence Prevention programme to the satisfaction of the Service Provider and the Probation Officer;

(c)      To attend, participate in and complete any other treatment, counselling and/or programme to address offending behaviour, as identified by the Probation Officer, to the satisfaction of the Service Provider and the Probation Officer;

(d)You are not to have contact or otherwise associate with the victim of your offending, directly or indirectly, unless you have the prior written consent of your Probation Officer; and

(e)      You  are  not  to  have  contact  or  otherwise  associate  with  the  co- offenders of your offending, directly or indirectly, unless you have the prior written consent of your Probation Officer.

[35]     You are further sentenced to a period of community work of 250 hours.

[36]     Among  the  factors  which  have  been  identified  as  contributing  to  your offending behaviour is the use of alcohol.  Although you have self-reported that you

have had minimal alcohol intake since the offending, it is vital for the prospects of your successful rehabilitation that you learn to control your consumption of alcohol and  preferably avoid  it  altogether.    I hope that  you  clearly understand  that  the sentence that I am imposing on you today affords you the opportunity to plan a positive and fulfilling life for yourself and your partner and your child.  Do not let this opportunity slip through your fingers.  Do not even contemplate a repetition of the incident of 2 January this year and be under no illusions that an opportunity like this will not be available to you if you reoffend again.

[37]     At the conclusion of my sentencing Ms Clark raised with me the inclusion in the conditions relating to supervision of a condition which had been recommended in the pre-sentence report albeit in the context of home detention, namely a condition that Mr Hona not purchase, possess or consume illegal/illicit drugs or any other synthetic cannabanoid/other drug or alcohol for the duration of the sentence.

[38]     Having heard from counsel and noting the similarity between the provisions in s 80D(4)(e) and s 52(2)(c) I consider that I do have jurisdiction to impose such a condition as a term of a penalty of supervision and I impose it because I am satisfied that there is a significant risk of further offending by you, Mr Hona, if you are consuming alcohol.  In particular in that regard I note that the pre-sentence report has stated that your risk of further offending is assessed as low but should you resume alcohol consumption it is suggested this risk may increase especially given you already have four drink-driving related convictions and that the offending in question occurred while you were intoxicated.  To which, of course, I would add as a factor the recent events on 2 January.

[39]     So I add to the conditions of the supervision order a further condition: the sixth condition will be that you not purchase, possess or consume illegal/illicit drugs or any other synthetic cannabanoid/other drug or alcohol for the duration of that aspect of the sentence.

[40]     Thank you Mr Hona stand down.

Brown J