RICHARD DONALD HURREN AND THE KING

[2024] NZHC 3543

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CRI-2024-442-21

[2024] NZHC 3543

BETWEEN

RICHARD DONALD HURREN

Appellant

AND

THE KING

Respondent

Hearing:

3 October 2024 (via VMR)

Counsel:

M J Vesty for Appellant

A R Goodison for Respondent

Judgment:

25 November 2024

JUDGMENT OF BOLDT J

[1]    On   1   August   2024,   Judge   J   E   Rielly   sentenced    the   appellant,   Mr Richard Hurren, to three years and nine months’ imprisonment on charges of aggravated burglary and common assault.1 He appeals against that sentence, arguing it is manifestly excessive.

Background

[2]    On the afternoon of 26 July 2022, Mr Hurren and two associates travelled from Nelson to a rural property near Canvastown, around an hour’s drive away. The property was owned by a married couple.

[3]    The male victim and an associate were in a woolshed on the property, while the female victim was in a nearby caravan.

1      R v Hurren [2024] NZDC 18120 [Decision under appeal].

HURREN v R [2024] NZHC 3543 [25 November 2024]

[4]    Mr Hurren and his co-offender, Mr Shaun MacFarlane, entered the shed unannounced. The third offender, Ms Mihi Barton, stayed in the vehicle to keep watch.

[5]    Mr MacFarlane said, “remember me? I’m here to collect!” Mr Hurren produced a machete-like knife, approximately 40cm long, and threatened the male victim with it. There was a dispute as to how to Mr Hurren came to be in possession of the knife; he maintained he found it in the woolshed, while the victims said he brought it with him. Little turns on that.

[6]    Mr MacFarlane looked around and moved items the male victim might have been able to use to defend himself. Mr Hurren threatened to injure the victim unless he — to adopt the words in the summary of facts — “handed over property”.

[7]    The victims’ associate managed to escape the woolshed and fled in his vehicle, trying to find somewhere with sufficient phone reception to enable him to call the Police. Meanwhile, the male victim begged Mr Hurren and Mr MacFarlane to leave. Mr Hurren grabbed the victim by the forearm and held him against the wall, threatening him with the knife. This continued for several minutes. The female victim came out of the caravan and entered the woolshed. Mr MacFarlane grabbed her by the wrist and told her she could not leave. Mr Hurren turned to her and threatened her with the knife. Mr MacFarlane lost his footing, allowing the female victim to escape and run from the woolshed.

[8]    Mr Hurren was wearing several large rings. He used a closed fist to punch the male victim in the jaw with such force the victim nearly lost consciousness. The female victim called out that she had phoned the Police, and that they were on their way. Ms Barton emerged from the vehicle and told Mr Hurren and Mr MacFarlane that it was time to leave. They left the shed, got into their vehicle and drove away. They were stopped by Police a short distance from Nelson.

[9]    The male victim received a sore and swollen jaw with cuts from being punched in the face. The female victim was not injured.

[10]   It remains unclear exactly why the group attacked the victims. Mr Hurren told the writer of the pre-sentence report, “I really feel for them, they did not deserve that to happen to them, I am ashamed about what I did”. He said the group had not gone to the address with bad intentions, but wanted to speak with the victim about “money he owed someone and what progress he had made”. Mr Hurren later said the victim owed money for “stolen digger parts.” He professed to be sorry for what he had done.

[11]   Mr Hurren has an extensive criminal history. He is 49 years old and has been offending regularly for the last 20 years. Most of his offending has been property and drug related; he has multiple convictions for burglary and theft, as well as several convictions for fraud, drink driving, driving while disqualified, breaching community-based sentences and receiving. He has been imprisoned on several occasions, though the current term of three years and nine months is his longest sentence.

[12]   Mr Hurren described the present offending as entirely out of character for him. While has a criminal history which spans 12 pages and encompasses over 120 convictions, his only other conviction involving violence or threats was a single charge of demanding with menaces in 1998.

District Court sentencing

[13]   Judge Rielly noted that the leading authority governing sentencing levels for aggravated burglary is R v Mako.2 Although Mako was a case of aggravated robbery, it has since been applied in cases of aggravated burglary as well.3 In Mako, the Court of Appeal observed:4

[58] 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 seven years or more. Where a private house is entered the starting point would be increased  under  the  home  invasion provisions  to around 10 years.

2      R v Mako [2000] 2 NZLR 170 (CA).

3      See R v Watson CA224/03, 24 October 2003; R v Shirley [2009] NZCA 216; and R v Mokaraka

[2002] 1 NZLR 793 (CA).

4      R v Mako, above n 2.

[14]   The  Judge  determined  that  paragraph  [58]  of   Mako   fairly   described Mr Hurren’s offending.5 The “home invasion provisions” to which the Court referred were a short-lived statutory regime requiring an additional sentencing uplift for offending involving violent intrusion into a private home.6 Those provisions were repealed in 2002, when unlawful entry into a dwelling place was recognised as an aggravating factor in s 9(1)(b) of the Sentencing Act 2002.

[15]   The Judge observed, in light of the repeal of the home invasion provisions, that some discount from the starting points identified in Mako would be appropriate.7 She selected five years.8 The Judge noted a number of aggravating factors, including the intrusion into the victims’ woolshed, Mr Hurren’s use of a large and potentially lethal knife, the presence of multiple offenders including Ms Barton as a lookout, the use of actual violence and the duration of the offending. The Judge described the offending as premeditated, and noted its immensely distressing effect on the victims.9

[16]   The Judge recognised that while Mr Hurren had numerous previous convictions, he had no real history of violence, and accordingly she did not impose an uplift.10

[17]   The Judge recorded that Mr Hurren’s upbringing had been characterised by grief and ill treatment, which had led to drug use and addiction issues from which he still suffers.11 She observed he now appears genuinely motivated to change, and accordingly extended a 10 per cent discount in recognition of those factors.12 The Judge also gave Mr Hurren a 15 per cent discount in recognition of his pleas of guilty, noting that while they were far from immediate, he did plead guilty after other charges were withdrawn.13

5      Decision under appeal, above n 1, at [20].

6      See Crimes (Home Invasion) Amendment Act 1999.

7      Decision under appeal, above n 1, at [21].

8 At [35].

9      At [24]–[33].

10 At [36].

11 At [42].

12 At [47].

13 At [46].

[18]   The Judge declined to reduce Mr Hurren’s sentence further. In particular she determined he was not entitled to a separate discount for remorse. She characterised his expressions of remorse, and the willingness he had signalled to participate in restorative justice, as “indicative of someone who is very ready to rehabilitate”, but too late to warrant a discrete discount.14

[19]   It followed the total discount  from  the  starting  point  of  five  years  was  25 per cent, leading to the final sentence of three years and nine months’ imprisonment.

The appeal

[20]   Mr Vesty, on behalf of Mr Hurren, submitted the five-year starting point was too high, and argued a starting point of around three and a half years would have been appropriate. He submitted the Judge double-counted the home invasion aspect of the case, arguing it was wrong to characterise it as an aggravating factor when unlawful presence on another person’s property is an element of any charge of aggravated burglary.

[21]   Mr Vesty submitted s 9(1)(b) of the Sentencing Act did not apply; as noted above, it requires the Court to take account of an unlawful intrusion “into a dwelling place”, and he submits the woolshed, where this attack took place, did not qualify. Mr Vesty contented there was only a “modest degree of home invasion” in this case, and that it was captured in the offence itself. Accordingly, he submitted the Judge was wrong to regard it as an aggravating factor.

[22]   Similarly, Mr Vesty noted that the use of a weapon is also an element of any charge of aggravated burglary, and accordingly the Judge was wrong to characterise it as a discrete aggravating factor.

[23]   Mr Vesty submitted that the Judge was wrong to categorise the offending as premediated, given the lack of information which might allow that conclusion to be drawn. While Mr Vesty accepted the group drove for an hour to get to the victims’

14 At [53].

property, he submitted that did not, of itself, establish premeditation. Mr Vesty submitted the evidence shows only that the group travelled to the Canvastown address to speak with the victims about a debt. He submits there is no evidence they set out to use violence.

[24]   Against that background, Mr Vesty submits the dispute about the origin of the knife becomes important. While it would plainly indicate a premeditated plan to use or threaten violence if Mr Hurren had brought the knife with him, that fact remained disputed. The summary of facts simply states, “it is unknown how Mr Hurren came to be in possession of the knife”.

[25]   Mr Vesty argued paragraph [58] of Mako does not apply when the charge is aggravated burglary as opposed to aggravated robbery. While Mako has been applied in aggravated burglary cases, he submits the matters outlined paragraph [58] do not, of themselves, disclose offending in the most serious category. Accordingly, he submitted the more appropriate analogy is with a relatively low-level aggravated robbery, of the kind described by the Court of Appeal as warranting a starting point of between 18 months and three years’ imprisonment, though he accepted the use of actual violence might require something higher.

[26]   Mr Vesty submitted the Judge gave Mr Hurren insufficient credit for the mitigating factors. Mr Hurren had been in custody for over two years awaiting trial on these matters and had completed alcohol and drug rehabilitation courses. Mr Vesty submitted, in light of the Judge’s acceptance Mr Hurren showed insight into his risk factors and was committed to rehabilitation, that a greater discount for personal factors would have been appropriate. He submitted a discount of 20 per cent, as opposed to the 10 per cent the Judge allowed, was required.

[27]   In addition, Mr Vesty submitted the Judge was wrong to decline Mr Hurren a discrete discount based on his expressions of remorse. He submitted that Mr Hurren had “little ability… to demonstrate remorse for the offending until plea arrangements were concluded”.

Discussion

[28]   The approach to appeals against sentence is well settled. Under s 250 of the Criminal Procedure Act 2011, I must dismiss the appeal unless I am satisfied, for any reason, that there was an error in the sentence and that a different sentence should be imposed. In accordance with orthodox principle, an appeal can be allowed if only a sentence was manifestly excessive, represented an error of principle, or if there are exceptional circumstances.15

[29]   My focus is on the final sentence the Judge imposed. It does not particularly matter how she constructed it as long as the sentence was reasonably available. If the same outcome could have been reached by a different route, the sentence will not be manifestly excessive.

[30]   I am unable to identify any error in the Judge’s approach. Paragraph [58] of Mako, which the Judge cited when fixing her starting point, is commonly relied upon in cases of aggravated burglary.16

[31]   It is true that actual or threatened violence, and the offender’s unlawful presence on another person’s property, are “built in” aggravating factors in cases of aggravated burglary. They are no less serious on that account. I do not accept Mr Vesty’s submission that the fact aggravated burglary always involves unlawful intrusion means something more is required to bring a defendant within [58] of Mako. It simply means aggravated burglaries are nearly always serious. There is no equivalent of the “street robbery” category of aggravated burglary for that reason.

[32]   In Poi v R, the Court of Appeal surveyed recent sentences for aggravated robbery. It noted that unlawful entry into a private home remains an aggravating factor for sentencing purposes despite the repeal of the home invasion provisions. It did not signal any need for an adjustment to the sentencing levels articulated in paragraph [58] of Mako. 17 Similarly, in Paraha v R, an aggravated burglary case, the Court of Appeal noted the repeal of the home invasion provisions might affect cases that would

15     Tutakangahau v R [2014] NZCA 279, [2014] NZLR 482 at [33]–[39].

16     See Pearson v R [2020] NZCA 573 at [22]–[23]; and Watene v R [2014] NZCA 357 at [31]–[34].

17     Poi v R [2020] NZCA 312.

otherwise have warranted a ten-year starting point. It did not indicate any other aspect of paragraph [58] may require reassessment, observing:18

[25] The “home invasion provisions” referred to in [paragraph [58]  of]  R  v  Mako have since been repealed, and the reference to a 10-year starting point must be read in that context. Nevertheless, unlawful entry into a private home remains an aggravating factor for sentencing purposes.

[33]   I agree the home invasion element of Mr Hurren’s offending was less acute than in many aggravated burglaries. The attack occurred in broad daylight and the intrusion was into the victims’ woodshed, rather than their home (though it would have been just as terrifying). The Judge took account of those factors, and adopted a five- year starting point rather than the seven years referred to in Mako.

[34]   I do not consider five years to have been outside the available range; indeed, a somewhat higher starting point may well have been sustainable. The offending involved an aggressive intrusion into the victims’ property, a prolonged course of intimidation with a large knife and the infliction of actual violence. Mr Hurren’s offending would have been worse if it involved forced entry by night, but the presence of multiple offenders and their determination to render the victims helpless and fearful meant a substantial starting point was warranted.

[35]   Similarly, the Judge was amply justified in describing the offending as premeditated. The obvious inference from the events preceding and surrounding the attack was that the three offenders went to the property with the intention of threatening the male victim and, if necessary, using violence to collect a debt.

[36]    As Mr Vesty acknowledged, the attack was preceded by an hour’s drive to the Canvastown property. It is plain it was not a social call, and there can be little doubt it was always part of the plan that Mr Hurren and Mr MacFarlane would seek to intimidate. The offenders used a lookout, had immediate recourse to weapons, immobilised the male victim, removed anything he might use to fight back, and made serious threats. Those factors are inconsistent with any suggestion they may have gone

18     Paraha v R [2022] NZCA 646.

to the property to make a polite inquiry about an outstanding debt, and spontaneously resorted to violence.

[37]   Turning to mitigating factors, there is no doubt Mr Hurren had an immensely disadvantaged upbringing. The Judge acknowledged Mr Hurren was badly mistreated as a child whilst coping with the significant grief associated with the loss of his mother. He suffers from post-traumatic stress disorder, as well as depression and attention deficit hyperactivity disorder. He is addicted to alcohol, opiates and stimulants. That addiction provided the context for much of Mr Hurren’s offending. He has taken steps to address his addiction and appears determined to undertake further treatment following his release from prison.

[38]   The Judge settled on 10 per cent as the appropriate discount to recognise those factors. A somewhat greater allowance might have been available, but seeking to put a figure on the appropriate discount for an offender’s disadvantaged background and commitment to rehabilitation is always a discretionary assessment. Discounts at or around that level are common even where deprivation is severe.

[39]   Finally, it was open to the Judge to decline a discrete credit for remorse. It is easy to claim to be remorseful, but the Sentencing Act requires the Court to consider any remorse “shown” by the offender.19 Actions will usually speak louder than words. Defendants who refuse to acknowledge their offending for months or years, and claim to be remorseful only when they might derive an advantage from doing so, may find it harder to persuade the Court they are sincere. It is right for sentencing Judges to display at least a measure of scepticism when an offender expresses remorse for the first time shortly before sentencing.

[40]   In this case it is clear Mr Hurren wanted to keep his options open. If his only concern or complaint had been that the summary of facts described the detail of offending incorrectly, or wrongly asserted he had brought the knife with him, he could easily have made that clear at a much earlier stage, while at the same time acknowledging how sorry he was for putting the victims through such a frightening experience.

19     Sentencing Act, s 9(2)(f).

[41]   I am satisfied the final sentence of three years and nine months’ imprisonment was comfortably within the available range. This was a carefully planned assault involving multiple offenders. They attacked the victims on their own property where they were entitled to feel safe. A stern sentence was plainly called for. It may have been open to the Judge to construct the sentence differently — for example a slightly higher starting point with somewhat greater discounts would have been equally sustainable — but the Judge made no error.

Result

[42]The appeal is dismissed.

Boldt J

Solicitors:

Resolution Chambers, Nelson for Appellant Crown Solicitor, Nelson for Respondent