HEWITT v R [2018] NZCA 374

HEWITT v R [2018] NZCA 374 [19 September 2018]PERMANENT ORDER PROHIBITING PUBLICATION OF PARAGRAPHS[83]–[85] OF THIS JUDGMENT. REDACTED VERSION MAY BEPUBLISHED.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA359/2017[2018] NZCA 374BETWEEN BRONSON RONGORANGI RICHARDHEWITTAppellantAND THE QUEENRespondentHearing: 23 July 2018Court: Gilbert, Courtney and Moore JJCounsel: B L Sellars for AppellantE J Hoskin for RespondentJudgment: 19 September 2018 at 10 amJUDGMENT OF THE COURTA The appeal against conviction is dismissed.B The appeal against sentence is allowed.C The sentence of eight years and six months' imprisonment is quashed andreplaced with a sentence of six years and three months' imprisonment.D Permanent order prohibiting publication of paragraphs [83]–[85] of thisjudgment. Redacted version may be published.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)[1] Following a jury trial in the High Court at Auckland, Mr Hewitt was foundguilty of six charges: kidnapping; aggravated robbery; male assaults female;unlawfully taking a motor vehicle; assault with intent to rob; and demanding moneywith menaces. These offences arose out of two incidents on the same day and involvedseparate victims. Mr Hewitt was convicted and sentenced to eight years andsix months' imprisonment.1 He appeals against conviction and sentence.The factsKidnapping, aggravated robbery, male assaults female and unlawfully takinga motor vehicle[2] For the purposes of sentencing, Muir J described the facts of the first incidentas follows:[4] On the afternoon of 4 August [2015], Ms Watson was seated in herBMW car at an intersection in Glenfield. Mr Hewitt was a passenger in thevehicle in front of Ms Watson. He left the vehicle, opened Ms Watson'spassenger door and got into it. When Ms Watson asked him what he wasdoing, he told her to shut up and asked where her money and gold was.She gave him her handbag, the contents of which Mr Hewitt emptied onto thefloor of the car. When she tried to use her cellphone, Mr Hewitt grabbed itfrom her.[5] Mr Hewitt forced Ms Watson to continue driving, holding herforcefully by the hair and tilting her head back so that she could not seeproperly. He also ran a fishing knife up and down her arm while she drove,aggressively demanding that she "drive properly".[6] Having forced her to drive into a side street he demanded, under threatthat he would cut her fingers off, that she give him her rings, which she did.He then punched Ms Watson in the face with a closed fist and pushed her outof her car. He then drove off in the vehicle, which was located not longafterwards at commercial premises in Glenfield. The offending againstMs Watson gave rise to the charges of kidnapping, aggravated robbery, maleassaults female and unlawfully taking a motor vehicle.Assault with intent to rob and demanding with menaces[3] The Judge described the second incident in these terms:1 R v Hewitt [2017] NZHC 1220 [Sentencing decision].[7] Later the same day, sometime after 8.00 pm, Mr Hewitt entered thegarage/sleepout of a property in Glenfield. Ms Aitcheson was seated in thegarage with her friend, Ms Johnston, and Ms Johnston's sister, Ms Kapa.The Crown says that Ms Kapa was Mr Hewitt's girlfriend at the time.The address was therefore well known to him.[8] Mr Hewitt grabbed Ms Aitcheson placing his right arm around herneck in a headlock. He carried a baseball bat in the other hand. Mr Hewittthen marched Ms Aitcheson around the garage in the headlock position, andat one point out of the garage and down the driveway into the street, all thetime demanding that she hand over the keys to her BMW vehicle. When shedid not produce the keys, Mr Hewitt demanded that she empty her pockets andtake off her jumper and jump up and down, his belief clearly being she wasconcealing the keys on her person. He threatened that he would break her legsif she did not hand them over.[9] Ms Aitcheson was not in a position to produce the keys which hadapparently been left in the adjacent house. Eventually Mr Hewitt left theaddress, telling Ms Johnston and Ms Kapa to watch Ms Aitcheson. At a pointwhen they were not concentrating on her, Ms Aitcheson decamped from thegarage, jumping fences and crossing through several residential properties,until she reached a telephone box from which she called police.[4] The Judge accepted that Mr Hewitt's offending was fuelled in part bymethamphetamine consumption.2Grounds of appeal[5] The conviction appeal is advanced on five grounds:(a) prosecutorial error in inviting the jury to draw an inference of guilt froma failure to disclose a defence before trial contrary to s 32 ofthe Evidence Act 2006;(b) excessive charging;(c) failure to charge Ms Watson in connection with the drug paraphernaliafound in her car;(d) wrongful exclusion of evidence of Ms Watson's connections with thedrug trade; and2 At [11].(e) trial unfairness in that the Judge favoured the prosecution.[6] Mr Hewitt claims the sentence was manifestly excessive due to three errors:(a) the starting point adopted for the lead offence was excessive;(b) the uplifts for the other offending and for previous convictions wereexcessive and inappropriate; and(c) no credit was given for Mr Hewitt's personal circumstances.Conviction appealProsecutorial error[7] Mr Hewitt exercised his right to silence when charged with the offences.He gave evidence at trial that he could not have been involved in the offendinginvolving Ms Watson because he was at the North Shore District Court at that timewaiting for his girlfriend to be released on bail. This was consistent with whatMr Hewitt's girlfriend, Stevie-Lee Kopa, told the police when she was spoken tofollowing Mr Hewitt's arrest.3 Mr Hewitt complains that the prosecutor wronglyinvited the jury to draw an inference that he was guilty because he did not disclose thealibi at the time he was arrested, contrary to s 32 of the Evidence Act. It is commonground that the Judge was not invited to, and did not, give a direction to the jury underthat section.[8] We commence our analysis of this ground of appeal by setting out in detailthe evidence concerning the attempts the police made to obtain a statement fromMr Hewitt at the time of his arrest and the responses he gave. We then review thecross-examination of Mr Hewitt on the topic and the Crown closing to determinewhether s 32 was breached. Before doing that, it is helpful to set out the relevant partsof the section:3 Ms Kopa was also referred to at various times during the trial as Ms Kapa.32 Fact-finder not to be invited to infer guilt from defendant's silencebefore trial(1) This section applies to a criminal proceeding in which it appears thatthe defendant failed—(a) to answer a question put, or respond to a statement made, tothe defendant in the course of investigative questioning beforethe trial; or(b) to disclose a defence before trial.(2) If subsection (1) applies,—(a) no person may invite the fact-finder to draw an inference thatthe defendant is guilty from a failure of the kind described insubsection (1); and(b) if the proceeding is with a jury, the Judge must direct the jurythat it may not draw that inference from a failure of that kind.[9] Sergeant Iremonger and Detective Constable Parker spoke to Mr Hewitt athis girlfriend's address in Glenfield at approximately 11.25 pm on the night of theoffending, 4 August 2015. Mr Hewitt declined to give his name or any other details.He was then taken to the North Shore police station. On the way, Sergeant Iremongertold Mr Hewitt that he was being arrested for assaulting Ms Aitcheson and informedhim of his rights under the New Zealand Bill of Rights Act 1990. Mr Hewittresponded to the assault allegation by saying "this is bullshit".[10] Following arrival at the police station, Sergeant Iremonger invited Mr Hewittto make a statement. Mr Hewitt made it quite clear, on four separate occasions(italicised below), that he did not wish to make a statement. The sergeant did notrespect that decision and persisted in questioning Mr Hewitt for three quarters of anhour until Mr Hewitt finally fell asleep in the interview room. The questioningcovered the alleged assault on Ms Aitcheson and the earlier alleged offendinginvolving Ms Watson. Sergeant Iremonger's evidence about his attempts to obtain astatement from Mr Hewitt was as follows:A At 11.44 I requested Mr Hewitt to give a statement to me.Q And what did he say?A He said, "What are you talking about? I'm not taking no interview.Too tired man. I don't want to tell you. I don't have to say shit."Q And what did you say to him?A I said, "What about the lady that you punched tonight?" He answered,"What are you talking about?" I said, "I believe you committed anaggravated robbery earlier today where you got into a lady's car andheld a knife to her and then punched her in the head." He said, "Whatare you fucking talking about? This is fucking bullshit." He said,"What? Where's the knife? Where's the fingerprints? Punched herin the face? Where's the marks? He showed me his knuckles. I couldsee healed scars on his left knuckles but nothing else.Q What did he say?A I said to him, "You don't always get marks on your knuckles whenyou punch someone in the face."Q And then were you informed by Constable Parker that the male wasactually Bronson Hewitt.A Yes, that's correct.Q And did he then refuse to answer any further questions?A Yes, he said, "You guys never believe me anyway so," and then helaid down on the interview room floor and refused to answer furtherquestions.[11] Sergeant Iremonger again tried to obtain a statement from Mr Hewitt, at about12.09 am.Q And did you subsequently ask him again whether he wished to makea statement about the alleged robbery?A Yes, at 12.09 am on the 5th of August 2015, I went back into theinterview room and I said, "I want to DVD interview you Bronson."He said, "What's that about?" I said, "Robbery at knife point." Hesaid, "Where's the evidence of that? Maybe it's someone that lookslike me." I said, "Do you want to go and DVD interview?" He said,"I don't even want to have any interview. I'm too fucking sick forthat." I said, "I also want to interview you about what went on at107 Hillside Road tonight where you put a female in a headlock."He said, "Oh, and where's the injuries of that? It makes injuriesdoesn't it?" I said, "No". He said, "Oh, man where's the proof ofthat? And what else?" I said, "And you tried to steal the whiteBMW?" He said, "Oh, Stevie's mate's white BMW, it's still outsideso it's not stolen. If I wanted to steal it I would've stolen it."Q What else did he say?A He said, "So she's saying I put her in a headlock and stole her car?Oh, Constable, you're just going to lock me up and throw away thekey?" I then re-advised him of his Bill of Rights.[12] After Mr Hewitt was again informed of his rights, Mr Hewitt asked if he wasalso going to be charged in relation to the earlier alleged incident:Q And so after you reiterated those to him, what did he say?A He said, "I want to see the proof. She's just saying these things 'cosStevie punched her in the mouth." I said, "What was that?" He said,"She's just saying this to get back at Stevie 'cos she can't have me."The lady in the blue BMW or the other one?" He said, "Oh, constable,you're going to charge me with that." I said, "So do you want to makea statement?"Q what was his response?A So he said, "Constable, you're going to charge me with that?" I said,"So do you want to make a statement?" He said, "Nah, man, this isa waste of time constable. You know what I mean? I don't hate you oranything. I don't know how my name got in there but she don't likeStevie-Lee. I've just tried to stop it. I got in there and got her apartand that's how she's getting back at Stevie-Lee. I try and stay out ofit and her sister had a fight just before yous turned up."[13] Sergeant Iremonger advised Mr Hewitt that the person described as havingbeen involved in the earlier incident closely resembled him. He asked him how hehad travelled to the Hillside Road address. Mr Hewitt said his uncle had taken himthere. When asked to describe the vehicle, Mr Hewitt said it was a grey Ford.Mr Hewitt said his uncle would refuse to speak to the police — "He won't talk to youfellas at all. Waste of time 'cos he won't talk to you". The sergeant left Mr Hewitt inthe interview room at that stage. It was then 12.32 am and Mr Hewitt had fallen asleep.[14] Sergeant Iremonger arranged for Mr Hewitt to be transported to the Hendersonpolice station where he was charged with aggravated robbery at about 1.30 am.[15] We wish to make two points in passing. First, we are concerned about thepropriety of the sergeant persisting in his efforts to obtain a statement from Mr Hewittafter he clearly exercised his right to remain silent. That choice should have beenrespected. The ongoing attempts to get Mr Hewitt to speak despite his election isparticularly concerning given the very late hour and the condition Mr Hewitt was in.Second, the evidence of this exchange had little or no probative value but wasprejudicial to Mr Hewitt, for example, Mr Hewitt's statement "You guys never believeme anyway" indicating he had significant prior involvement with the police. We donot consider that this evidence should have been admitted. A short statement thatMr Hewitt exercised his right to remain silent would have sufficed.[16] The prosecutor challenged Mr Hewitt's alibi evidence at the trial by suggestingthat if Mr Hewitt truly was at the District Court at North Shore at the time of theoffending involving Ms Watson, he would have said so to Sergeant Iremonger whenhe was arrested:Q When you were spoken to by Detective Iremonger on that night youdidn't say anything about being at the North Shore Court did you?A No.Q It would have been very easy to say that it's such a simple explanation,"I wasn't there I was stuck at the Court waiting for my girlfriend."You didn't say that did you?A No I didn't.Q That's because it wasn't true. What's your response to that?A Whatever you want to say, well —Q Well you need to respond, Mr Hewitt. I'm saying to you, you'retelling the Court lies. This is a serious matter, yes or no?A Can you repeat the question?Q I'm saying to you when you spoke to Detective Iremonger thatevening you didn't say, as it would have been very simple to do,"I was at the Court all afternoon waiting for my girlfriend."(Objection by Mr Hewitt's trial counsel)Q Well the point is, Mr Hewitt, you didn't say anything about being atthe North Shore Court.A I never told him anything.Q No. Because at that time, only a number of hours after this you hadn'tyet come up with this story, had you?A I can't, I can't comment.Q You can't comment?A I don't understand the question you're saying.Q Well it's a simple question, Mr Hewitt. I'm accusing you of makingthis North Shore District Court story up. You weren't there in theafternoon at all.A Yes I was.[17] In closing, the prosecutor invited the jury to disregard Mr Hewitt's alibievidence because he did not provide that explanation to the police at the time of hisarrest:The Crown says to you, if the defendant had actually been at the North ShoreDistrict Court when the carjacking happened, he would've said that 18 monthsago when he was asked, because it's a very simple straight-forwardexplanation. It puts him not at the corner of Chivalry and Chartwell. It putshim at the North Shore District Court at Albany, so it would be very easy forhim to have said that. Why did he not say that? Because he hadn't yet madeit up. He's had 18 months to come up with a story to get off these charges.He's done his best. The Crown says it's not good enough.[18] The prosecutor concluded this part of his address by saying:So, frankly, members of the jury, the defence that's been advanced byMr Hewitt is, with respect ridiculous and I don't say that lightly. It's false,the Crown says, fabricated and lies... So, the Crown asks you to put to oneside the defence evidence and when you do that, and the Judge will direct youfurther about this, you will need to come back to consider the Crown evidence.[19] The Judge referred to this submission in his summing-up:[The prosecutor] then addressed the alibi evidence advanced by Mr Hewitt.He says that no reference to that was made at the time Mr Hewitt was arrested.He says it is highly convenient that Mr Hewitt should be clear about leavingthe courtroom in the afternoon of 4 August 2015 and thereafter going tothe Westfield Shopping Centre but that he is "fuzzy" or "blurry" about hismovements for the rest of the day. He says his evidence is simply not credible.[20] Ms Sellars, for Mr Hewitt, submits that s 32 was clearly engaged as a result ofthese passages of the prosecutor's cross-examination and closing address. Rather thangiving the mandatory direction under s 32(2)(b) that the jury may not infer guilt fromMr Hewitt's failure to tell Sergeant Iremonger about his alibi, the Judge merelyrepeated the Crown's submission on the point.[21] Ms Hoskin, for the Crown, submits that s 32 was not engaged because thechallenge was linked to credibility and did not go further and invite the jury to inferguilt because the alibi was not advanced earlier. Even if s 32 was breached, she arguesthat the Judge's directions were sufficient to remedy the breach. In any event,Ms Hoskin contends that any breach of s 32 has not caused a miscarriage of justicebecause it cannot have affected the outcome of the trial in all the circumstances.[22] Section 25(d) of the New Zealand Bill of Rights Act assures the fundamentalright of everyone charged with an offence, in relation to the determination of thecharge, not to be compelled to be a witness or to confess guilt. Section 32 is designedto protect a defendant from any adverse comment or prejudice where he or sheexercises their right to silence.4 However, the section has been interpreted as notrestricting a challenge by the prosecution to the defendant's credibility where evidenceis given at trial of a previously undisclosed defence:5Section 32 is a proscription only on inviting or drawing an inference of guiltfrom silence before trial, whether in response to "investigative questioning"or in not disclosing a defence before trial. It does not proscribe challenges tothe defendant's credibility because the defendant said nothing beforeadvancing a defence in evidence at trial.(Footnote omitted.)[23] In E (CA727/09) v R this Court noted that "[m]any judges think that this is adistinction that would test the skills of a philosopher".6 Earlier, in R v Coombs,this Court expressed the view that the distinction will often be "too fine to be ofpractical value in a jury trial".7 Cooke J said that where the defendant "made no priorstatement, comment on the belatedness of the explanation advanced for the first timeat trial will usually not be fair unless his right to silence is also clearly explained andthe jury are warned not to draw an inference of guilt from silence".8 This Courtobserved in McNaughton v R that a prosecutor "must walk a fine and uncertain line"if he or she wishes to challenge the defendant's credibility based on the exercise of theright to silence without undermining the defendant's entitlement to exercise his or herright to silence.94 McNaughton v R [2013] NZCA 657, [2014] 2 NZLR 467 at [15].5 Smith v R [2013] NZCA 362, [2014] 2 NZLR 421 at [42].6 E (CA727/09) v R [2010] NZCA 202 at [60].7 R v Coombs [1983] NZLR 748 (CA) at 752.8 At 752.9 McNaughton v R, above n 4, at [16].[24] The cases give little guidance on where "the fine and uncertain line" markingthe divide can be found. However, it is apparent that the courts have been vigilant toensure that a defendant is not prejudiced through the exercise of his or her right tosilence.[25] Smith was an example of a prosecutor stepping over the line resulting in amiscarriage and the need for a retrial. There, the prosecutor challenged the defendanton his claim that he was acting in self-defence, advanced for the first time at trial, onthe basis that he did not mention this to the police when they spoke to him on the night,or to others he subsequently talked to about the incident soon after. This Courtconcluded that the prosecutor had invited the jury to infer guilt from the defendant'sfailure to disclose self-defence before the trial.10[26] McNaughton was another example of a case where the line was found to havebeen crossed even though the prosecutor "unarguably linked his frequent referencesto Mr McNaughton's failure to raise self-defence before trial with a direct attack onthe credibility of the same subject matter".11 The line was found to have been crossedbecause this was "a dominant theme of his address became the primary basis forattacking Mr McNaughton's credibility and inexorably undermining his justificationdefence" and "ran the real risk of leaving the jury with the impression that[Mr McNaugton's] failures to raise the defence was evidence of his guilt".12[27] In Reuben v R this Court again concluded that the prosecutor overstepped"the fine line between a legitimate challenge to [the defendant's] veracity and invitingthe jury to draw an inference of his guilt from a failure to make any suggestion in hisletters to his family suggesting a lack of intention to kill the victim".13[28] Ms Sellars relies on this Court's recent decision in Hamdi v R as a comparablecase where the line was found to have been crossed.14 In giving the judgment ofthe Court, Kós P said this:1510 Smith v R, above n 5, at [53].11 McNaughton v R, above n 4, at [18].12 At [26]–[27].13 Reuben v R [2017] NZCA 138 at [60].14 Hamdi v R [2017] NZCA 242, (2017) 28 CRNZ 319.15 At [32].[W]e conclude the prosecutor's questioning of Mr Hamdi incross-examination impermissibly breached s 32 of the Act. This is because inorder to suggest Mr Hamdi's evidence was a recent invention to fit the DNAanalysis, the prosecutor contrasted it with Mr Hamdi's omission to provide theexplanation earlier. This suggestion necessarily and logically had to proceedin this way because the limited comment Mr Hamdi did make was consistentwith the defence he advanced at trial We consider this infringes s 32because its effect is to impair the silence right in s 25(d). It creates a forensicdisadvantage to its exercise, including where the defendant makes a limitedstatement only. Predominantly, it sought to raise an adverse inference fromthe exercise of his right to silence.[29] On the other hand, the Crown points to Hastings v R as an example of a casewhere the prosecutor "came close" but did not cross the fine and uncertain line.16There again the prosecutor cross-examined the defendant about his failure to tellthe police he had acted in self-defence when questioned about the incident.However, the Court considered that self-defence was not the central plank of thedefence and related to only two of the charges Mr Hastings faced and thecross-examination on the point was limited.17[30] We turn now to consider whether the line was crossed in the present case.It can be seen from the police questioning at the time of arrest quoted at [10]–[13]above that there was no inconsistency between what Mr Hewitt said at that time andhis evidence at the trial. There was therefore no room for the prosecutor to challengeMr Hewitt's evidence at the trial on the basis it was inconsistent with a previousstatement made at the time of arrest. This case is therefore distinguishable from caseslike W (CA397/2017) v R.18[31] The alibi was a central plank of Mr Hewitt's defence to the charges involvingMs Watson, which were the most serious. The prosecutor placed emphasis onMr Hewitt's failure to tell Sergeant Iremonger about his alibi when he was questionedon the night. The prosecutor told the jury in his closing address that they should rejectMr Hewitt's evidence as "ridiculous", "fabricated and lies". He emphasised thissubmission by adding "I don't say that lightly". He also said that Mr Hewitt"had 18 months to come up with this story to get off these charges. He's done his best.The Crown says it's not good enough".16 Hastings v R [2015] NZCA 180 at [47].17 At [48].18 W (CA397/2017) v R [2018] NZCA 81.[32] The prosecutor's suggestion that it had taken Mr Hewitt 18 months to concocthis alibi defence was unfair to Mr Hewitt. The Crown knew about the alibi defencefrom the time the police spoke to Mr Hewitt's girlfriend, Ms Kopa, shortly after hewas arrested. Although no formal notice of alibi was given, the Crown took no issuewith this.[33] The prosecutor was obviously entitled to test Mr Hewitt's alibi evidence andhis credibility, but we consider he could not do so in the manner he did because, as inSmith, McNaughton, Reuben and Hamdi, it unfairly undermined Mr Hewitt's exerciseof his right to silence. The prosecutor effectively invited the jury to draw an adverseinference from Mr Hewitt's exercise of this fundamental right. The submission wasto the effect that if Mr Hewitt truly had an alibi, he would not have exercised his rightto silence and instead would have told Sergeant Iremonger about it on the night of hisarrest.[34] Whether or not s 32(2)(a) was breached by the prosecutor, the section wasengaged and the Judge was accordingly obliged to give the direction required unders 32(2)(b). This was not done. We do not accept Ms Hoskin's submission that theother directions the Judge gave were to similar effect. She refers to the standarddirection the Judge gave reminding the jury about the onus of proof whenever adefendant gives evidence and the standard lies direction he also gave. These orthodoxdirections address different issues and could not serve as an effective substitute for thespecific direction required under s 32(2)(b). This Court confirmed in McNaughton v Rthat a lies direction will not rescue a failure to give the specific direction requiredunder s 32(2)(b).19[35] We will examine the other grounds relied on in support of the conviction appealbefore considering Ms Hoskin's submission that there has been no miscarriage ofjustice in any event because of the strength of the Crown case.19 McNaughton v R, above n 4, at [19].Excessive charging[36] Mr Hewitt claims that the charges brought against him were excessive and donot reflect his culpability. Two of the charges concerning Ms Aitcheson were amendedduring the trial and he suggests this indicates her evidence was unreliable. Mr Hewittclaims both complainants exaggerated and embellished their evidence and this resultedin unfairness.[37] Charge 5, assault with intent to injure, was amended during the trial to assaultwith intent to rob. This amendment was appropriately made. Mr Hewitt consented tothe amendment and cannot now complain about this.[38] Charge 6, aggravated robbery which carries a maximum penalty of 14 years'imprisonment, was amended to demanding with menaces which has a maximumpenalty of seven years' imprisonment. This amendment was made against Mr Hewitt'sopposition. However, it is not uncommon for charges to be amended during trialwhere there is a variance between the proof and the charge and the amendment doesnot prejudice the defendant. There is no suggestion Mr Hewitt was misled or sufferedany prejudice as a result of the amendment. It cannot be said the Judge erred inexercising his discretion to allow the amendment.[39] It was for the jury to determine whether the Crown had proved to the requisitestandard each element of each of the charges. In considering the adequacy of the proofon each element of each charge, it was for the jury to assess what evidence theyaccepted or rejected. It was entirely for them to determine all issues of credibility andreliability of witnesses including whether the complainants exaggerated orembellished their evidence.[40] We are satisfied there is no substance in any of Mr Hewitt's complaintsmarshalled under this head.Failure to charge complainant[41] Mr Hewitt claims that he knew Ms Watson. He claims she previously suppliedhim with drugs and he had had a sexual relationship with her. He says this was animportant plank of his defence because it explained why she was able to identify himfrom the photo montage and why his fingerprints were found in her car. Mr Hewittsays this defence was supported by the fact the police found drug paraphernalia inMs Watson's car when it was recovered shortly after the carjacking (a usedmethamphetamine pipe, two small sets of scales, plastic syringes, cannabis bud, plasticpoint bags and plastic ziplock bags containing a crystal substance). The police did notlay charges against Ms Watson in connection with these items. Mr Hewitt claims thiswas unfairly prejudicial to his defence and resulted in an unfair trial.[42] Ms Watson's car was stolen from her and not recovered by the police until halfto three quarters of an hour later. It was apparent that some of the items found in thecar belonged to other people and Ms Watson denied the drug paraphernalia was hers.No fingerprint evidence was obtained from these items. We accept Ms Hoskin'ssubmission that the decision not to charge Ms Watson is explicable in thesecircumstances.[43] In any event, Mr Hewitt's trial counsel fully explored these issues withMs Watson when cross-examining her. Ms Watson freely admitted she had usedmethamphetamine in the past. However, despite persistent questioning, Ms Watsonmaintained her denial that the drug paraphernalia found in the car belonged to her.She denied knowing Mr Hewitt, having had sex with him in her car or having suppliedhim with methamphetamine in the past.[44] There is nothing in this ground of appeal. The fact the police did not chargeMs Watson was of no consequence to the case against Mr Hewitt.Wrongful exclusion of evidence[45] Ms Watson told the police that prior to the carjacking she had been visiting afriend, Amitra Johnston. She said she left Ms Johnston's home at approximately3.05 pm. A detective went to this address later that day to speak to Ms Johnston butshe was not home. The detective spoke to a man at the address who identified himselfas Basil Larkins. Mr Larkins told the detective that Ms Johnston would be returningto the address later that evening. The detective returned to the address about 10 pmand spoke to Ms Johnston. She was described as "hostile" but confirmed that she hadspent time with Ms Watson earlier that day and had gone with her in her BMW toWINZ and the Glenfield shops.[46] Trial counsel for Mr Hewitt sought to cross-examine the officer in charge aboutMr Larkins' alleged association with the Head Hunters gang arguing that this couldsupport an inference that the carjacking related to "a drug deal gone wrong". Muir Jdeclined to permit such cross-examination finding that the proposed evidence was notrelevant.20[47] Ms Sellars submits that the Judge erred in not allowing defence counsel tocross-examine the officer in charge on this issue. She says the extent of Ms Watson'sinvolvement in the drug scene was relevant because it supported Mr Hewitt's claimthat he knew her. She argues that Mr Larkins' links to the Head Hunters "is consistentwith Ms Watson moving in circles associated with drugs".[48] We agree with Muir J that this evidence was not relevant. The reasoning itinvites is extremely tenuous — Ms Watson is associated with Ms Johnston,Ms Johnston is associated with Mr Larkins, Mr Larkins is associated withthe Head Hunters, the Head Hunters are involved in drug dealing, therefore it is morelikely that Ms Watson was involved in drug dealing. In any event, none of this isrelevant to the trial issue of whether Mr Hewitt was the person who committed theoffences against Ms Watson. Moreover, any evidence about these matters from theofficer in charge would be hearsay.[49] Mr Hewitt was not precluded by this ruling from advancing his defenceeffectively. Trial counsel was permitted to mount a comprehensive challenge toMs Watson's credibility in cross-examination, including by suggesting that she wasinvolved in drug dealing.Trial unfairness[50] Mr Hewitt claims that the Judge showed a preference for the prosecution caseand this resulted in an unfair trial. Only one example was given to support this20 R v Hewitt HC Auckland CRI-2015-044-2834 Ruling No 7 of Muir J, 8 March 2017.submission. Constable Humm executed a search warrant at the address where thesecond incident occurred. She handled a puffer jacket alleged to have been worn byMr Hewitt. Constable Humm said in her evidence-in-chief that when she picked thejacket up, two rings and $100 cash fell out. This was consistent with a photograph inthe Crown photograph booklet which showed a $100 note. However, the Judgeexposed a discrepancy in this evidence prior to the commencement ofcross-examination. He asked the constable what denominations the cash was foundin. The constable said she recorded in her notebook that it was two $50 notes.The Judge drew attention to the discrepancy between her notebook record andthe Crown photograph showing a single $100 note and asked her to explain this.The constable was unable to do so.[51] We do not accept this demonstrates any unfairness or that the Judge favouredthe prosecution. If anything, the Judge was assisting the defence by bringing this errorto the attention of the jury.[52] We have carefully reviewed the entire trial record and are satisfied thatthe Judge was impartial throughout and conducted the trial fairly.Has a miscarriage of justice occurred?[53] The only error that has been made out is the breach of s 32. Did that breachresult in a miscarriage of justice?[54] The lack of a direction under s 32 could have had no impact on the outcome ofthe charges involving Ms Aitcheson. Mr Hewitt admitted being present when thatoffending is alleged to have occurred.[55] For the following reasons, we are also satisfied that the breach of s 32 has notresulted in justice miscarrying on the charges involving Ms Watson.[56] Ms Kopa's evidence that Mr Hewitt collected her from the North Shore DistrictCourt at around 3 pm, the same time as the incident involving Ms Watson occurred,was consistent with what she told the police when they spoke to her in the early hoursof the morning following the alleged offending. Any direction under s 32 would haveno bearing on her evidence. The jury clearly rejected Ms Kopa's evidence as notraising the reasonable possibility that Mr Hewitt was at the North Shore District Courtwaiting for her to be released on bail and that this occurred at 3 pm. This may bepartly because the Crown produced evidence that Ms Kopa was released at 10.51 am,not 3 pm as she claimed.[57] The Crown case in relation to the offending against Ms Watson was verystrong. The jury must have accepted the main parts of Ms Watson's evidence.She identified Mr Hewitt from a photo montage. Her car was found abandoned inGlenfield, near where the second incident took place and where Mr Hewitt wasapprehended. There was evidence from two eye witnesses and from CCTV footagethat the vehicle was driven there by Ms Kopa. Mr Hewitt's fingerprints were foundon the driver's door handle of Ms Watson's car. This was consistent with the accountMs Watson gave that the offender had opened the driver's door from inside the car andpushed her out onto the road. This account was given before the fingerprints werefound. Ms Kopa initially said that the knife located in Ms Watson's car belonged toher although she later retreated from this position when the significance of this becameclear to her. Ms Watson's rings were found in the pocket of a puffer jacket lying onthe bed in Ms Kopa's garage/sleepout at the time Mr Hewitt was arrested.[58] While the breach of s 32 is regrettable, we are satisfied that it did not result ina miscarriage of justice. We see no real risk that it could have affected the outcomerendering the verdicts unsafe. The appeal against conviction must accordingly bedismissed.Sentence appeal[59] The end sentence of eight years and six months' imprisonment was arrived atin the following way:(a) starting point on the lead charge of aggravated robbery (Watson) —five years and six months' imprisonment;(b) uplift for car conversion (Watson) — three months;(c) uplift for assault with intent to rob (Aitcheson) — two years andthree months' imprisonment;(d) uplift for previous offending — six months; and(e) personal circumstances — no discount.[60] Mr Hewitt challenges all aspects of the sentencing exercise in support of hisoverall submission that the end sentence was manifestly excessive.Starting point[61] Ms Sellars submits the starting point adopted for the aggravated robbery chargeshould have been four and a half to five years' imprisonment. She says the offendingwas opportunistic and lacked planning or premeditation. Although Mr Hewittpunched Ms Watson on her face causing bruising, she did not require medicaltreatment. The offending was relatively brief and occurred on a public road during thedaytime.[62] Muir J considered that the offending was broadly comparable to that inR v Andersen.21 In that case, the offender carjacked a woman and her 18-month oldchild who were stopped at traffic lights at 10 pm. The offender threatened the victimwith a large knife and forced her to drive for one or two kilometres before stopping ina dark, unlit road. The offender then forced the victim and her child out of the car,took the victim's wallet containing $300, and drove off.[63] Ms Sellars submits the offending in Andersen was more serious and a lowerstarting point should have been adopted here. The problem with this submission isthat a much higher starting point was adopted in Andersen. Contrary to Muir J'sunderstanding that a starting point of five years six months' imprisonment was adoptedin that case,22 the starting point adopted by Williams J was in fact seven to eight years'imprisonment.23 Williams J rejected the Crown's submission that a starting point of21 R v Andersen HC Auckland CRI-2006-090-5921, 26 September 2006.22 Sentencing decision, above n 1, at [40].23 R v Andersen, above n 21, at [33].five to five and a half years' imprisonment would be appropriate.24 He considered thatcounsel had understated the seriousness of the offending.25 Andersen thereforeprovides no support for Ms Sellars' submission that the starting point adopted byMuir J was too high although we regard that decision as an outlier.[64] Ms Sellars is on firmer ground in relying on R v Zhang where a starting pointof six years' imprisonment was adopted for six offences arising out of a single incident,including kidnapping, aggravated robbery and possession and use of a pistol.26She argues that the offending in that case was significantly more serious.There, the offender waited late at night in a parking area opposite a bar known to befrequented by Asian students. When the victim left the bar and got into her car aloneat about 1 am the offender approached her wearing a disguise over his head andcarrying a firearm. He presented the firearm to the victim, got into the car anddemanded that she drive around Auckland while he rifled through her handbag lookingfor cash. At one stage he pressed the firearm against the side of the victim's head asshe was driving. When the offender became aware that the police were in pursuit, hethreatened the victim and struck her on the back of her head with the butt of thefirearm.[65] We accept Ms Sellars' submission that the offending in the present case issignificantly less serious than in Zhang — it was not planned or premeditated, therewas no disguise, there was no firearm, the offending was of much shorter duration, itoccurred during the day and the assault did not involve the use of a weapon. In ourview, the six-month difference in starting points does not adequately reflect thedifference in the seriousness of the respective offending.[66] The starting point of five years, six months' imprisonment also appears highwhen one considers the guideline judgment in R v Mako.27 The most comparableexample referred to in that judgment is aggravated robbery of taxi drivers at night24 At [19].25 At [32].26 R v Zhang CA56/05, 24 May 2005.27 R v Mako [2000] 2 NZLR 170 (CA).using a weapon or physical violence for which a starting point of between four andfive years' imprisonment was considered appropriate:28Another form of offending of disturbing frequency is the robbery oftaxi drivers. These offences, generally at night, commonly involve violenceto victims who, by their occupation are vulnerable. Other road users also maybe endangered. Where a weapon is presented or physical violence isemployed, though no serious injury may be caused, and money is taken astarting point of between four and five years would be appropriate.[67] We do not overlook that the adjusted starting point in the present case offive years and nine months' imprisonment (factoring in the car conversion) wasreferred to without comment by this Court in Hoko v R in reducing a manifestlyexcessive sentence of eight years' imprisonment to six years and six months foraggravated robbery and kidnapping.29 Mr Hoko, who was disguised with a hoodedsweatshirt and dark sunglasses and carrying a knife with a 10 centimetre blade, gotinto the passenger seat of the victim's car after she had parked in a city centre atapproximately 8.30 am. Mr Hoko held the knife to the victim's stomach and told herto drive. After directing the victim where to park the car, he told her to get into thepassenger seat where he tied her hands to the handbrake using the cord from hercell phone. He told the victim she was "sexy" as he did this, adding to her fear of whathe was going to do to her. Mr Hoko found the victim's Eftpos card in her handbag,demanded her PIN number and drove to an ATM where he used it to withdraw cashfrom her account. Mr Hoko then drove the victim back to the city centre where he lefther in the vehicle having tied her hand to the gearshift using straps he cut from herhandbag.[68] This Court stated that a starting point of no more than five years' imprisonmentcould be justified for the aggravated robbery.30 This was despite the aggravatingfactors in that case of premeditation, use of a knife with a 10 centimetre blade, use ofdisguises, and the "very significant psychological trauma" inflicted which had a"devastating" impact on the victim leaving her "substantially incapacitated" andunable to work.3128 At [57].29 Hoko v R [2017] NZCA 484.30 At [17].31 At [6] and [13(d)].[69] We conclude that the starting point of five years and six months' imprisonmentfor the aggravated robbery alone in the present case should have been no higher thanfive years.Uplifts for other offending[70] Ms Sellars submits that the car conversion formed part of the aggravatedrobbery and no separate uplift was required taking into account the car was recoveredin less than an hour. Ms Sellars also submits that the uplift of two years and threemonths for the offending against Ms Aitcheson was excessive. She submits thattwo years would have been more appropriate.[71] The Judge considered an appropriate starting point for the offending involvingMs Aitcheson alone would be four to four and a half years' imprisonment.32That appears high looking at comparable cases of assault with intent to rob.[72] In R v Hunia, a sentence of two and a half years' imprisonment was upheld bythis Court after a jury found the defendant guilty of assault with intent to rob.33There, the defendant approached a young woman who was alone and asked her formoney. When she said she had none, he held her by her neck, pushed her against ashop window and head butted her, striking her upper lip. He then pulled the victim'shandbag from her shoulder, emptied the contents onto the pavement but found nomoney.[73] This Court upheld a starting point of three years' imprisonment for assault withintent to rob and other offending in R v Graham.34 The assault with intent to robcharge arose after the victim refused to pay the defendant's demand for money.The defendant placed both hands around the victim's head, pulled it forward and thrusthis knee into the victim's head twice, striking him on the nose and eye. This Courtconsidered that a sentence of two and a half years' imprisonment would have been32 Sentencing decision, above n 1, at [44].33 R v Hunia CA189/89, 23 April 1990.34 R v Graham CA37/01, 7 June 2001.justified if the assault with intent to rob had been the only offence for whichthe defendant was being sentenced.35[74] A starting point of three years' imprisonment was upheld by this Court inR v Whata for a significantly more serious case of assault with intent to rob.36There, the defendant and an associate demanded that a passer-by give them his dog,threatening to kick his head in if he did not. The defendant and his associate punchedthe victim in the head, shoulders and arms approximately 12 times. A short time later,the defendants renewed their attack on the victim, taking it in turns to punch him inthe head for about one minute. The assault ceased after a member of the publicintervened. The defendant then assaulted a second victim by punching him on theshoulder and attempting other blows.[75] Based on these authorities, a starting point of four to four and a half years'imprisonment would have been excessive for the offending involving Ms Aitcheson ifconsidered alone. However, the real issue is not whether the discrete uplifts were toohigh but whether the adjusted starting point of eight years' imprisonment was too highhaving regard to the totality of the offending. We consider it was. We consider anadjusted starting point of the order of seven years would have been sufficient to reflectthe totality of Mr Hewitt's offending. The offending, which was fuelled byMr Hewitt's drug dependency, was opportunistic rather than premeditated. It occurredover the course of a few hours. The Judge aptly described it as "one drug-fuelledspree".37 All property taken was promptly recovered. Although traumatised,Ms Watson suffered comparatively minor physical injuries. Ms Aitcheson wasunharmed.Uplift for previous convictions[76] Section 9(1)(j) of the Sentencing Act 2002 requires a court to take into accountas an aggravating factor, where applicable, the number, seriousness, date, relevanceand nature of any previous convictions of the offender. This Court stated inBeckham v R that an uplift may be appropriate where the previous convictions show a35 At [14].36 R v Whata [2008] NZCA 204.37 Sentencing decision, above n 1, at [61].tendency to commit the particular type of offence for which sentence is to beimposed:38The rationale for uplifting a prisoner's sentence to take into account priorcriminal history has been explained by this Court in R v Casey and in R v Ward.As Sir Michael Myers CJ explained in Casey, the Court must be careful to seethat a sentence of a person who has been previously convicted is not increasedmerely by reason of those previous convictions. If this occurred, it wouldresult in the prisoner being sentenced again for an offence which he hadalready expiated. This does not mean that previous convictions must beignored, particularly if the previous convictions indicate a tendency to committhe particular type of offence for which the offender is convicted. Issues ofdeterrence and, in some cases, protection of the public may require an upliftfor previous offending. Similarly, previous convictions may bear on the issueof character.(Footnote omitted.)[77] Muir J applied an uplift of six months for Mr Hewitt's previous convictions forreasons given in the following passages of his sentencing decision:[52] Despite the absence of recent convictions for violence, Mr Hewitt'sprevious criminal history is extensive. There are multiple previousconvictions for unlawfully taking a motor vehicle and numerous otherdishonesty convictions. This history indicates a sense of entitlement which isalso apparent in the index offending. He also has, as I have identified, historicconvictions involving violence.[53] I am satisfied there is a sufficient nexus between the index offendingand Mr Hewitt's relevant previous convictions to justify an uplift ofsix months on account of that previous offending. I do so in the interestsprimarily of deterrence but also public protection.[78] Mr Hewitt, who was aged 28 at the time of the present offending, has numerousprevious convictions, mostly for minor offences including driving offences. He hasno previous convictions for similar offending — kidnapping, aggravated robbery,assault with intent to rob or demanding with menaces. He has only two previousconvictions for violent offending as an adult. The first of these was for male assaultsfemale in January 2004 when Mr Hewitt was aged 17. He was sentenced tosix months' imprisonment for this offence and granted leave to apply forhome detention. The second was for common assault in April 2007 when Mr Hewittwas aged 20. This offending must have been at the very bottom of the scale because38 Beckham v R [2012] NZCA 290 at [84].Mr Hewitt was convicted and discharged for this offence. As Muir J observed, bothof these offences occurred long ago.[79] We do not consider these two historical violence convictions should haveweighed in the sentencing assessment and they clearly could not have justified anuplift of six months. As the Judge himself observed, "Mr Hewitt's record of offending is characterised by an absence of previous convictions for serious violent offendingand no convictions for offences involving violence at any level for the past 10 years".39Given the index offending was accepted as being motivated by drug dependency, it isdoubtful whether an increased sentence would be effective in serving the purposes ofdeterrence. Nor did these historic offences require an uplift to an already lengthysentence to serve the interests of public protection.[80] Mr Hewitt's most serious previous dishonesty conviction was for burglary inDecember 2010, when he was aged 24. He was sentenced to 21 months' imprisonmentfor this offence. He has numerous other convictions for unlawfully takingmotor vehicles but the most recent of these for offending in April 2012 for which hewas sentenced to two months' imprisonment. These offences were quite different inkind and scale and were considerably less serious. As the Judge said, the indexoffending "does not appear to be symptomatic of a regular pattern. Indeed, it seemsto be a break with the previous pattern [of] non-violent car thefts and other crimes ofdishonesty".40[81] We conclude there was not a sufficient nexus between Mr Hewitt's historicaloffending and the index offending to justify the uplift of six months that was imposed.Personal circumstances[82] Mr Hewitt maintains his innocence and declined to participate in an interviewfor the purposes of a pre-sentence report. The report writer was therefore unable toprovide the Court with any assistance regarding relevant personal factors.39 Sentencing decision, above n 1, at [45].40 At [61].It is unsurprising in these circumstances that Muir J did not allow any discount forpersonal mitigating factors.[83] [Suppressed.][84] [Suppressed.][85] [Suppressed.][86] What is also now clear is that while Mr Hewitt continues to deny the offending,he recognises his need for treatment to address his drug dependency and is motivatedto change. He has the advantage of strong support from his mother and extendedfamily.[87] We make no criticism of Muir J who did not have the benefit of all of theinformation available to us. It helps explain the reasons for Mr Hewitt's drugdependency and his consequent offending. It underscores his need for a sentence thatprioritises treatment and rehabilitation rather than deterrence and punishment.We consider that a discount of nine months should be allowed for these personalmitigating factors.Conclusion on sentence appeal[88] We conclude the sentence imposed of eight years and six months'imprisonment was manifestly excessive in view of the fuller picture now available tothe Court. The sentence should be replaced with a sentence of six years andthree months' imprisonment.Result[89] The appeal against conviction is dismissed.[90] The appeal against sentence is allowed.[91] The sentence of eight years and six months' imprisonment is quashed andreplaced with a sentence of six years and three months' imprisonment.[92] Permanent order prohibiting publication of paragraphs [83]–[85] of thisjudgment. Redacted version may be published.Solicitors:Crown Law Office, Wellington for Respondent