The Queen v Hocking

[2006] NZCA 256

IN THE COURT OF APPEAL OF NEW ZEALAND

CA241/06

THE QUEEN

v

HEATH JOHN HOCKING

Hearing:30 August 2006

Court:O'Regan, Williams and Heath JJ

Counsel:N M Dutch for Appellant

M A Corlett for Crown

Judgment:18 September 2006 at 11 am

JUDGMENT OF THE COURT

A        We allow the appeal. 

BWe quash the sentences imposed in the District Court and, in their place, impose a sentence of three years and three months imprisonment in relation to the first count and a concurrent term of 18 months imprisonment in relation to the second count, making a total term of imprisonment of three years and three months.

REASONS OF THE COURT

(Given by O’Regan J)

Introduction

[1]       Mr Hocking was found guilty after a jury trial of two counts of injuring with intent to cause grievous bodily harm.  He was sentenced to imprisonment for a term of two years and six months in respect of the first count, and a cumulative term of one year and three months imprisonment on the second count, making a total effective term of three years nine months.  He appeals against that sentence.

[2]       The incidents leading to the two charges involved the same victim and occurred within a short time of each other and within 50 metres of each other.  The main ground of appeal is that the Court ought to have considered the two counts to be effectively one and the same offence, and that the effective term is manifestly excessive when the offending is considered on a totality basis.  A co-offender who was sentenced at the same time as Mr Hocking was sentenced to two years and six months imprisonment for the first attack and six months imprisonment for the second, making a total sentence of three years imprisonment.  On Mr Hocking’s behalf it is also argued that there is an unjustified disparity between Mr Hocking’s sentence and that of his co-offender.

[3]       The issues for determination are, therefore, the following:

(a)Whether the offending should be seen as one incident or two separate incidents;

(b)Whether on a totality basis the sentence imposed on Mr Hocking is manifestly excessive;

(c)Whether there is an unjustified disparity between Mr Hocking’s sentence and that of his co-offender.

One incident or two?

[4]       The incident leading to the first charge took place outside a bar in Tauranga.  The victim had been ejected from the bar and was agitated.  Mr Hocking abused him, and the victim threw a punch at Mr Hocking which missed.  The victim was punched (the sentencing Judge, Judge Thomas, found that Mr Hocking threw this punch) and when he fell to the ground Mr Hocking, the co-offender and a third party kicked and stomped on the victim’s head and shoulders.  A bouncer from the bar broke up the fight, and all those involved moved down the street.  When they were outside another local bar about 50 metres from the scene of the first attack, the victim and Mr Hocking again became involved in a verbal dispute.  The co-offender then punched the victim and the victim fell to the ground.  Mr Hocking then kicked the victim twice in the head area. 

[5]       The victim suffered cuts, bruises and a broken eye socket.  He required three stitches to his right eye lid.  At the time of sentencing he was said to have recovered fully, and was said to have got on with his life and suffered no long term injuries. 

[6]       The Judge adopted a cumulative sentencing approach, treating the two separate incidents as separate offences requiring a separate sentencing response.  In our view that was inappropriate, even if the two incidents are seen as separate because, on any view of the events, “the offences … are of a similar kind and are a connected series of offences” and in those circumstances concurrent sentences are generally appropriate: s 84(2) of the Sentencing Act 2002.  Of course, even where cumulative sentences are imposed, the overarching requirement is that the total sentences reflect the totality of the offending: s 85 of the Sentencing Act.  As long as the overall sentence is appropriate for the totality of the offending, the imposition of cumulative sentences where concurrent sentences would have been more appropriate may not affect the ultimate issue whether the overall punishment reflects the overall criminality. 

[7]       The Judge was well aware of the need to ensure that the totality principle was applied.  He noted that this was so “because although there were two separate incidents, it is almost one incident”.  However, he continued:  “But, there were two separate attacks and there must be some recognition of that”.

[8]       On behalf of Mr Hocking, Mr Dutch took issue with this last observation.  He said the incident was in fact a single incident which involved a brief pause between the two episodes of violence.  He said that the sentencing should have been conducted on the basis that there was one offence only.

[9]       While we accept that the two incidents were so close together as to be effectively one continuing series of events, Mr Hocking faced sentence on two separate charges and the Judge had to recognise this.  However we accept Mr Dutch’s submission that the Judge’s approach has created the risk that the criminality of the offending is overstated.  We therefore propose to re-evaluate the sentence in the light of this factor, taking into account the other submissions made by counsel on the appeal. 

Was the sentence manifestly excessive?

[10]     The Judge applied the decision of this Court in R v Taueki [2005] 3 NZLR 372. That decision focused on offences under s 188(1) of the Crimes Act (involving the infliction of grievous bodily harm with intent to do so), but the Court noted at [9] that the guidelines contained in the decision could be applied by analogy to other offences involving the infliction of serious violence, with appropriate adaptation to reflect the seriousness of the particular offence, and the maximum penalty for it.

[11]     The maximum penalty for the present offending (involving “injuring”) is ten years imprisonment, in contrast to the maximum of 14 years imprisonment for offences under s 188(1) (which involve “causing grievous bodily harm”).  Mr Dutch suggested that the sentencing bands in Taueki should be reduced to 70% of those set out in the Taueki decision, to reflect this difference in the maximum penalties.  We do not agree that such a rigid mathematical approach is appropriate, though we acknowledge that in applying the Taueki guidelines there needs to be appropriate recognition of the lesser nature of the offence under s 189. 

[12]     The Judge determined that the first incident involved offending which sat between bands 1 and 2 of Taueki. The present case has some similarities with the facts situation summarised at [37](a) of Taueki, in that it was a street attack where no weapons were used and the injuries did not cause the victim lasting affect. However there were multiple attackers and the victim’s head was attacked, and these are aggravating circumstances described at [31] of Taueki. There was controversy as to whether the Judge was right to find that there was extreme violence, which is another aggravating circumstance described at [31] of Taueki. In fact, the Judge used the term “serious violence”. We do not view the facts of this case as indicating “extreme violence” of the kind described at [31](a) of Taueki and accept Mr Dutch’s submission that serious violence is an ingredient of the offence in these cases: this cannot be an aggravating feature unless the violence is extreme in the sense described at [31](a) of Taueki.

[13]     As the Judge determined that the first assault was between band 1 and 2, he took a starting point of three years, and then an additional starting point of two years for the second attack which he described as being in band 1.  We think this involves an element of double counting, and that a preferable approach would have been to set a lead sentence for the first offence applying Taueki (with adaptation), and then to factor in any additional criminality involved in the second offence. 

[14]     On this basis, we consider that the appropriate starting point would have been in the region of four years for the two incidents, having regard to the aggravating factors noted earlier, and the need to adjust the Taueki bands to reflect the lesser offence in the present case, while also recognising the assault was renewed after the initial incident had been broken up and all parties had had a chance to calm down. 

[15]     Mr Dutch submitted that Mr Hocking was provoked, and that this was a mitigating factor: Taueki at [32](a). However, the fact that there was a pause between the incidents shows that the offending cannot be explained completely as a hot-headed response to provocation. We do not therefore see this as a significant factor.

[16]     There were a number of personal factors relating to the appellant which the Judge assessed as favourable, which justify a reduction of sentence from the four year starting point.  The pre-sentence report indicated that Mr Hocking had a good employment history, had shown strong remorse for what occurred and was at a low risk of re-offending.  In our view a reduction of nine months is appropriate to reflect those factors, making a total sentence of three years three months. 

[17]     We consider that this sentence reflects the totality of the offending.  We therefore impose a sentence of three years three months for the first offence, and a concurrent term of 18 months for the second offence, making a total term of three years and three months. 

Was there unjustified disparity?

[18]     As we have now determined that Mr Hocking’s sentence should be reduced, the disparity issue no longer arises.  The term of three years three months which we intend to impose is three months greater than the three year term imposed on the co-offender, and we are satisfied that this was justified by the lower level of involvement of the co-offender in the second incident and the personal factors relating to the co-offender dealt with in the Judge’s sentencing notes.

Result

[19]     We allow the appeal.  We quash the sentences imposed in the District Court and, in their place, impose a sentence of three years and three months imprisonment in relation to the first count and a concurrent term of 18 months imprisonment in relation to the second count, making a total term of imprisonment of three years and three months.

Solicitors:
Crown Law Office, Wellington