R v Hutchinson - [2019] NZHC 2884

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-004-003875

[2019] NZHC 2884

THE QUEEN

v

THOMAS PHILLIP HUTCHINSON

Hearing: 6 November 2019

Counsel:

DMA Wiseman for Crown

SNB Wimsett and ST Patia for Defendant

Judgment:

6 November 2019

SENTENCING REMARKS OF DOWNS J

Solicitors/Counsel:
Crown Solicitor, Auckland. SNB Wimsett, Auckland.

R v HUTCHINSON [2019] NZHC 2884 [6 November 2019]

Introduction

[1] Mr Hutchinson, you are for sentence on a series of offences in April last year: aggravated robbery; robbery; two unlawful takings of vehicles (a car and a motorbike); and two thefts. The most serious, as you probably know, is the aggravated robbery charge. It carries a maximum penalty of 14 years’ imprisonment. You committed these offences with Mr Ivan Carr, whom I sentenced approximately six weeks ago.1 You disputed facts in relation to the aggravated robbery, which is why I could not sentence you then. You gave evidence this morning as did the two victims of the aggravated robbery. I summarise this testimony.

[2] Mr Dhwanit Shah was the driver of the Armourguard van on 5 April 2018. He said his role was to be vigilant. He said the robber was completely covered and holding a large knife. He said the robber presented that at his colleague Mr Patel. Mr Shah said the knife was really large and sharp. He emphasised its size. Mr Shah was cross-examined by your lawyer, Mr Wimsett. Mr Wimsett suggested there was no knife and that Mr Shah was either mistaken or perhaps even lying about that. Mr Shah was clear there was a knife.

[3] Mr Patel was the immediate victim of the robbery. He was the person returning to the van with the cash box. He said a robber confronted him holding a big knife or perhaps a screwdriver. He said the implement, whichever it was, was 400 mm long. He said the robber yelled at him to get on the ground. Again, Mr Wimsett put to this witness he was either mistaken or lying. Mr Patel was clear the robber had either a knife or a screwdriver. He said the incident was very scary.

[4] You, Mr Hutchinson, gave a different account. You said you were not disguised but you were wearing a hooded sweatshirt. You said you did not have a weapon and you had to lean out of the car to get the cash box rather than confront the victim with a knife. You also said this offence was not premeditated. You said you and Mr Carr had intended to commit some crime, but you had not decided to rob the Armourguard cash van.

1 R v Carr [2019] NZHC 2335.

[5] I am sure this aggravated robbery was premeditated. I am also sure you had a knife. I accept it is reasonably possible you were disguised with only a hooded sweatshirt, nothing more.

[6] I am sure your offending was premeditated because the trial evidence put this…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NZHC 2884
Decision Date: 6 November 2019

CaseChat Overview and Summary

The High Court of New Zealand in Auckland heard the case of Thomas Phillip Hutchinson who was sentenced for a series of criminal offences committed in April of the previous year. The charges included aggravated robbery, robbery, unlawful takings of vehicles, and thefts. The court was required to decide on the appropriate sentence considering the premeditation and seriousness of the crimes, the role of the defendant, and mitigating factors. The legal issues also involved the application of the totality principle in sentencing and the consideration of personal circumstances and the potential for rehabilitation.

The court found the crimes to be premeditated with Hutchinson wielding a knife during the aggravated robbery. It was determined that Hutchinson played a significant role in the crimes, and despite his claims of not having a weapon and the offences not being premeditated, the court found otherwise based on the evidence presented. The court considered Hutchinson’s criminal history, which included previous convictions for violence and other crimes, and assessed his potential for reform based on his participation in prison courses and expressions of remorse. However, the pre-sentence report painted a less optimistic picture, indicating a high risk of reoffending and harm to the community. The court granted a slight reduction in the starting point for the possibility of reform but applied a discount for late guilty pleas.

Ultimately, the court sentenced Hutchinson to a total of eight years in prison, with no minimum period of imprisonment to be served. The court opted not to impose a reparation order for the stolen motorbike due to the defendant's inability to pay. The judge emphasised that the Parole Board would be better positioned to determine the appropriate time for Hutchinson’s release, contingent on his behaviour and progress in prison.

Orders