HAJNAL-HUATA v NEW ZEALAND POLICE [2020] NZHC 468

HAJNAL-HUATA v NEW ZEALAND POLICE [2020] NZHC 468 [10 March 2020]IN THE HIGH COURT OF NEW ZEALANDGISBORNE REGISTRYI TE KŌTI MATUA O AOTEAROATŪRANGANUI-A-KIWA ROHECRI-2020-416-00005[2020] NZHC 468BETWEEN FERENC HAJNAL-HUATAAppellantAND NEW ZEALAND POLICERespondentHearing: 3 March 2020Appearances: M Lynch for the AppellantC Stuart for the RespondentJudgment: 10 March 2020JUDGMENT OF DOOGUE JIntroduction[1] Mr Ferenc Hajnal-Huata appeals against a sentence of two years, three months'imprisonment imposed by Judge Cathcart on 20 December 2019 in the District Courtat Gisborne.1 The charges were injuring with reckless disregard,2 threatening to dogrievous bodily harm,3 and male assaults female.4[2] Mr Hajnal-Huata appeals on a number of grounds: that the starting point wastoo high; that the discounts for mitigating factors were inadequate; and that in thecircumstances, the final sentence was manifestly excessive.1 R v Hajnal-Huata [2019] NZDC 26385.2 Crimes Act 1961, s 189(2); maximum penalty of five years' imprisonment.3 Crimes Act, s 306; maximum penalty of seven years' imprisonment.4 Crimes Act, s 194(b); maximum penalty of two years' imprisonment.Background[3] Mr Hajnal-Huata was previously in a domestic relationship with one of thecomplainants, M. They have been separated since September 2018. They have fourchildren together.[4] M's father is W and he is the other complainant in this matter.[5] On Sunday 23 September 2018 at about 9:15pm, Mr Hajnal-Huata went to W'shome. W was at home with M, who was visiting for the holidays. Mr Hajnal-Huatawent to the front door and spoke to W, enquiring whether M was inside. W told MrHajnal-Huata to leave his daughter alone and to leave the property.[6] He initially complied but returned shortly afterwards, opened the front door,entered the lounge and found M there. Mr Hajnal-Huata grabbed M by her jersey,pushed and pulled her around the living room, demanding to know who her newpartner was. W intervened, and he struggled on the ground with Mr Hajnal-Huata.This struggle caused W's shoulder to dislocate. Mr Hajnal-Huata then retrieved aknife from the kitchen.[7] M ran out of the house, towards a neighbouring property, calling for help. MrHajnal-Huata pursued her, and pushed her to the ground. W intervened again, andpushed Mr Hajnal-Huata, allowing M to stand again. Mr Hajnal-Huata punched heronce to the face, with a fist. He then pushed M to the ground again.[8] While M was on her knees, Mr Hajnal-Huata said to her "I want to stab you. Iwant to stab your face", while making a stabbing motion towards her face with theknife. W again intervened, and grabbed the blade of the knife. The knife severed W'sfinger, leaving it attached only by a small amount of flesh.[9] W again struggled with Mr Hajnal-Huata, allowing M to run away. Mr Hajnal-Huata chased her, and tackled her to the ground. He took her mobile phone, and hither three times in the chest with it in his hand. M got to her feet again, before MrHajnal-Huata knocked her to the ground and kicked her once. He then left theproperty.[10] M went to a neighbouring property and telephoned the police. Mr Hajnal-Huata entered the house and confronted her again, saying "better not be ringing thepigs bitch", causing her to hang up the phone in fear.[11] W was flown to Wellington Hospital, where his finger was reattached. Herequires ongoing medical care, but is likely to eventually have normal use of his fingeragain. M received swelling and bruising to the left side of her face.District Court decision[12] After outlining the facts as above, the Judge identified the charge of injuringwith reckless disregard as the lead charge.5 He then turned to setting the starting pointfor the lead offending, considering the cases of Swan v Police,6 Brooking v Police,7Macdonald v Police,8 Grimshaw-Jones v R,9 and Tamakaha v Police.10 Afteridentifying the use of a weapon and the extent of W's injuries as aggravating factors,11and noting it was "not an easy exercise", the Judge set the starting point for the leadoffence at two years, four months' imprisonment.12[13] The Judge then turned to the threat offending, considering the authorities Allanv Police,13 Bonfert v R,14 and Nicholson v R.15 The Judge noted the seriousness of thethreat, and the fact that "the reality of the threat was brought home" to M by thestabbing motions Mr Hajnal-Huata made with the knife, and adopted a starting pointof 20 months' imprisonment.16[14] The Judge then adopted a starting point of six months' imprisonment for thecharge of male assaults female.175 R v Hajnal-Huata, above n 1, at [11].6 Swan v Police [2014] NZHC 69.7 Brooking v Police [2012] NZHC 3219.8 Macdonald v Police [2012] NZHC 1767.9 Grimshaw-Jones v R [2010] NZCA 490.10 Tamakaha v Police [2019] NZHC 2838.11 R v Hajnal-Huata, above n 1, at [13].12 At [16]13 Allan v Police HC Dunedin CRI-2011-412-37 (1 December 2011).14 Bonfert v R [2012] NZCA 313.15 Nicholson v Police [2016] NZHC 300.16 R v Hajnal-Huata, above n 1, at [18].17 At [19].[15] Readjusting for totality purposes, the Judge uplifted the sentence on the leadoffence by 15 months, and adopted an overall starting point of three years, sevenmonths' imprisonment.18[16] The Judge then noted Mr Hajnal-Huata's previous violent convictions forwounding with intent to injure and aggravated robbery, noting they were "very seriouson the violence scale", as well as convictions for possession of offensive weapons andfirearms.19 In accordance with Orchard v R,20 the Judge imposed an uplift oftwo months for the prior offending.21[17] The Judge then turned to mitigating factors, granting the following discounts:(a) three months for remorse and rehabilitation prospects (a discount ofapproximately 6.9 per cent);22(b) six months for personal factors identified in the cultural report (adiscount of approximately 13.9 per cent);23 and(c) nine months for an early guilty plea (a discount of approximately25 per cent).24[18] The Judge then summarised the total sentence as follows:25(a) Injuring with reckless disregard: two years, three months'imprisonment.(b) Threatening to do grievous bodily harm: 20 months' imprisonment,concurrent.18 At [20].19 At [21].20 Orchard v R [2019] NZCA 529.21 R v Hajnal-Huata, above n 1, at [22].22 At [25].23 At [28].24 At [29].25 At [31].(c) Male assaults female: six months' imprisonment, concurrent.[19] The District Court sentence is summarised in table format below:Description Date Starting PointInjuring with reckless disregard 23 September 2018 28 monthsUplift for threatening to do grievous bodily harm and male assaults female + 15 monthsUplift for previous convictions + 2 monthsReduction for remorse - 3 monthsReduction for personal circumstances and cultural assessment - 6 monthsGuilty plea discount - 9 monthsEnd sentence 27 monthsPrinciples on appeal[20] Mr Hajnal-Huata appeals under s 250 of the CriMl Procedure Act 2011. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.26 It is only appropriate for this Court to intervene and substitute its ownviews if the sentence is "manifestly excessive" and cannot be justified upon theapplication of the relevant sentencing principles.27 Although the process by which theJudge reached the sentence will be relevant, it is "seldom in itself pivotal", and thisCourt is required to focus on the final sentence outcome.28 This Court will notintervene where the sentence is within the range available to the sentencing Judge.29The appeal[21] Mr Hajnal-Huata's appeal can be summarised by the following questions:(a) Was the starting point of two years and three months' imprisonment toohigh?26 CriMl Procedure Act 2011, ss 250(2) and 250(3).27 Ripia v R [2011] NZCA 101 at [15].28 At [15].29 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].(b) Did the District Court Judge err by failing to make appropriateadjustments for mitigating factors?(c) Was the end sentence manifestly excessive?Was the starting point too high?Submissions[22] Mr Lynch for Mr Hajnal-Huata submitted:(a) when coming to a starting point, more recognition of the principle oftotality was required, taking into account the offending involvedone ongoing incident;(b) the starting point for the charge of injuring with reckless disregardshould have been two years' imprisonment;(c) in relation to the threat offending, a starting point of 15-18 months'imprisonment would have been appropriate; and(d) given the lower starting point, the uplift for totality should also belower.[23] Mr Stuart for the Crown submitted:(a) the Judge's starting point of two years, four months' imprisonment waswithin the range available; and(b) the uplift of 15 months to reflect the totality of the offending wasappropriate.The lead charge[24] Both Mr Lynch and Mr Stuart referred to the Court of Appeal judgment ofR v Nuku, which is a guideline judgment for offences involving intent under ss 188(2),189(2), and 191(2) of the Crimes Act.30 It does not apply to the current charge, ofinjuring with reckless disregard. However, the Court of Appeal has confirmed that ifNuku is applied by analogy to reckless disregard offending, care must be taken toaccount for the different mental element and the effect this may have on theapplicability of some of the Nuku factors.31 When deciding a case involving the samecharge as the present case, of injuring with reckless disregard, the High Court heldNuku is not "of direct assistance" in cases that do not involve intent to wound orinjure.32 I take the same approach, and do not apply Nuku in the present case.[25] Grimshaw-Jones v R related to a charge of wounding with reckless disregard,33rather than injuring, which carries a higher maximum penalty.34 It involvedaggravating factors including use of a weapon, attacks to the head, serious injuries tothe victims (including a potentially fatal cut to one victim's jugular vein), an elementof vigilantism, and a degree of premeditation.35 The District Court Judge set a startingpoint of two years, eight months' imprisonment, which the Court of Appeal upheld,noting it was "by no means excessive."36 Mr Lynch also referred to various casesrelating to the higher charge of wounding with reckless disregard, which attractedstarting points of between two years, six months' imprisonment, and three years'imprisonment.37 I find these cases of less assistance, given they relate to charges ofwounding, rather than injuring.[26] I consider the cases of Police v Filipo,38 and Costigan v Police,39 of moreassistance in the present case, as they relate to charges of injuring with recklessdisregard. The defendant in Filipo faced charges of injuring with reckless disregard,assault with intent to injure, and two charges of male assaults female. In relation tothe charge of injuring with reckless disregard, the defendant punched the victim,knocking him unconscious. He then stomped on his head about four times. The victim30 R v Nuku [2012] NZCA 584.31 Waitohi v R [2014] NZCA 614.32 Police v Filipo [2016] NZHC 2573 at [64].33 Crimes Act, s 188(2); maximum penalty of seven years' imprisonment.34 Grimshaw-Jones v R, above n 9.35 At [11]-[12].36 At [13].37 Macdonald v Police, above n 8; R v Job [2018] NZHC 2543; Middlemiss v Police HC DunedinCRI-2009-412-38 (11 February 2010); Hepi v Police [2013] NZHC 2690.38 Police v Filipo, above n 32.39 Costigan v Police [2019] NZHC 425.suffered bruising, scratches and a severe concussion. He had to take six months offwork, and was advised to stop playing rugby (he had been a promising rugby player).[27] The offending involved three aggravating factors: attacks to the victim's head,the vulnerability of the victim (as he was unconscious for part of the attack), and theserious consequences for all of the victims. The High Court also noted the defendant'srole as the instigator of the offending.40 The District Court Judge noted that"conventional sentencing" would see a starting point of 18 months' imprisonment,before discharging the defendant without conviction.41 In overturning the DistrictCourt decision, the High Court held the offending warranted a "minimum" startingpoint of 18 months' imprisonment, with an uplift of "at least" six months for the otheroffending.42 The High Court also noted a total starting point of two and a half years'imprisonment would be "unimpeachable".43[28] Costigan v Police also related to a charge of injuring with reckless disregard.44The defendant struck the victim over the head repeatedly with a glass bottle,continuing as they attempted to crawl away. The aggravating factors were the presenceof extreme violence; use of a weapon; attacking the head; and the vulnerability of thevictim.45 Although noting it was "stern", the High Court upheld the District Court'sstarting point of three years' imprisonment.46 The High Court noted it would havetaken a starting point of two and a half years' imprisonment.47[29] In the present case, there are three primary aggravating factors relating to thelead charge: the use of a weapon, the seriousness of W's injuries, and the fact itinvolved a home invasion. Both Filipo and Costigan are comparable cases, and astarting point of two years, four months' imprisonment was available to the Judge.40 Police v Filipo, above n 32, at [67].41 At [31].42 At [66].43 At [66].44 Costigan v Police, above n 39.45 At [30].46 At [32].47 At [32].Uplift for other charges[30] In relation to threats under s 306 of the Crimes Act, starting points of up tothree years' imprisonment have been applied where weapons have been used, andwhere threats have been "extreme and causative of great fear."48[31] The High Court in Allan v Police identified factors relevant in assessing acharge for threatening to kill.49 Relevant in this case are: the use of a knife; M'svulnerability; the degree of precision, specificity, and proximity of the threat, asevidenced by Mr Hajnal-Huata making stabbing motions towards M; the level ofdistress caused to M; and the fact the threat was made directly to M. In Allan, thedefendant pointed a gun at the victim, saying "I'm deadly serious. There's two bulletsin here, one for you and then I'm going to kill myself".50 The High Court upheld theDistrict Court's starting point of 12 months, noting a starting point of 18 to 24 months'imprisonment "might well have been considered appropriate."51[32] In Nicholson v Police, the defendant faced charges of assault with a weapon,two charges of threatening to kill, possession of an offensive weapon, and resistingpolice.52 The defendant threatened two victims, and held a knife to the throat of apregnant victim, threatening both her and her unborn baby. The High Court upheld atotal starting point for all charges of two years, four months' imprisonment, noting astarting point of two and a half years' imprisonment could be justified.53[33] In Bonfert v R the defendant picked up a chair and threatened to hit the victimwith it, before throwing it to the floor.54 He then picked up a knife and said to thevictim "I could kill you", before leaving the room.55 The District Court took a startingpoint of 18 months' imprisonment,56 which the Court of Appeal upheld.5748 Rudd v R [2015] NZHC 2399 at [20]; Burton v R [2014] NZCA 221; Simon v R [2014] NZCA 207.49 Allan v Police, above n 13, at [29].50 At [3].51 At [33].52 Nicholson v Police, above n 15.53 At [29].54 Bonfert v R, above n 14.55 At [4].56 At [26].57 At [38].[34] Given the aggravating factors listed above at [31], the offending in the presentcase is more serious than in Bonfert, and more similar to that in Allan and Nicholson.58A starting point of two years, four months' imprisonment was therefore open to theJudge.[35] I note that Mr Lynch does not appeal the Judge's starting point of six months'imprisonment for the charge of male assaults female. This particular offending wasaggravated by attacks to the head, the fact M was vulnerable (having been forced tothe ground before being kicked by Mr Hajnal-Huata), and the prolonged nature of theincident as Mr Hajnal-Huata pursued M for some time. I consider the Judge's startingpoint of six months' imprisonment appropriate in the circumstances.[36] The uplift of 15 months to reflect the remaining offending was appropriate.The further uplift of two months, to reflect Mr Hajnal-Huata's prior offending, wasalso appropriate.59Did the District Court Judge err by failing to make appropriate discounts formitigating factors?Submissions[37] Mr Lynch submitted the Judge should have given discounts of 10 per cent forremorse and rehabilitation, and 20 per cent for cultural factors and personalcircumstances.[38] Mr Stuart submitted the reductions for mitigating factors were fair and withinthe discretion of the Judge.[39] The mitigating factors are Mr Hajnal-Huata's expression of remorse andprospects for rehabilitation, and his personal circumstances and cultural factors (asidentified in the Cultural Report provided under s 27 of the Sentencing Act (the Act)).Mr Hajnal-Huata also entered an early guilty plea.58 Bonfert v R, above n 14; Allan v Police, above n 13; Nicholson v Police, above n 15.59 R v Orchard, above n 20.Remorse and rehabilitation[40] Under the principles of sentencing, the Act requires the Court to take intoaccount restorative justice processes,60 and lists remorse shown by the offender as amitigating factor.61 Evidence of genuine remorse can justify a discount ofapproximately five to eight per cent.62 In relation to both grounds of appeal relatingto discounts for mitigating factors, I note sentencing generally requires flexibility anddiscretion to achieve justice in the individual case,63 which does not lend itself to astrict mathematical exercise when applying discounts.64[41] Mr Lynch submitted the restorative justice conference held in December 2019between Mr Hajnal-Huata and M was "very real", and Mr Hajnal-Huata expressed"sincere remorse", reading out a letter in which he apologised to M and W. In thisletter, Mr Hajnal-Huata accepted full responsibility, expressed his remorse, andacknowledged his drug use, for which he is seeking treatment. I also note the CulturalReport records Mr Hajnal-Huata's recognition that what he did was wrong, and hisacknowledgement of the impact of his offending. Although Mr Lynch submitted theJudge was "unfairly sceptical" of Mr Hajnal-Huata's prospects of rehabilitation, theappeal on this point focused on the inadequacy of the discount given for remorse.[42] While I accept Mr Hajnal-Huata's apology was sincere, and M's victim impactstatement records she was glad she attended the restorative justice conference, I notethat the Provision of Advice to Courts report prepared by the Department ofCorrections ("PAC Report"), prepared in December 2019, noted that Mr Hajnal-Huataminimised his offending as an "accident". The PAC Report also notes that he initiallydenied he had any problems with drug use, although he did later admit to relyingheavily on methamphetamine in the lead up to the offending. Mr Hajnal-Huata'sminimisation of the offending and his drug use somewhat undermine his expressionsof remorse. The evidence of remorse is then somewhat equivocal. Given these factors,60 Sentencing Act 2002, s 8(j).61 Sentencing Act, s 9(2)(f).62 Adams on CriMl Law (online ed, Thomson Reuters) at [SA9.22]; McArthur v R [2013] NZCA 600at [13]–[14]; Watene v R [2014] NZCA 381 at [18]; Poi v R [2015] NZCA 300 at [7]-[8].63 Zhang v R, above n 66, at [120].64 Mareikura v R [2012] NZCA 108 at [14].I see no error in the Judge exercising his discretion and giving a discount for remorseapproximately in the middle of the range available to him.Personal circumstances and cultural factors[43] Under the principles of sentencing, the Act requires the Court to take intoaccount the offender's family, whanau, community, and cultural background.65 TheCourt of Appeal has held:66 ingrained, systemic poverty resulting from loss of land, language, culture,rangatiratanga, mana and dignity are matters that may be regarded in a propercase to have impaired choice and diminished moral culpability. Where theseconstraints are shown to contribute causatively to offending (whetherassociated with addiction or not), they will require consideration insentencing.[44] The High Court has noted these factors are likely to have a "modest effect" onsentences for offending involving serious violence,67 and that discounts in this context"require care" as correlation and causation are not synonymous, and "excessivediscounts risk undermining the criMl law's precepts of human agency and choice."68If a nexus cannot be shown between a defendant's background and their offending, adiscount will not be appropriate.69[45] Where there is a nexus with the offending, the amount of the discount given isdiscretionary, based on the extent to which the relevant factors are linked to theoffending, and the extent to which they bear on moral culpability; there is no fixed"range" of discount available.70 In R v Heta, in relation to charges of causing grievousbodily harm with intent and common assault, the District Court granted a discount of30 per cent for the offender's background.71 While noting this was "generous", theHigh Court upheld the District Court decision.72 In R v Rakuraku, in relation to a65 Sentencing Act, s 8(i).66 Zhang v R [2019] NZCA 507 at [159].67 R v Patangata [2019] NZHC 744 at [44].68 At [45].69 Tafeaga v R [2019] NZHC 261; R v Carr [2019] NZHC 2335.70 Adams on CriMl Law, above n 62, at [SA27.02].71 R v Heta [2018] NZHC 2453 at [1].72 At [65].murder charge, a discount of approximately 5.6 per cent was given on a minimumimprisonment period of 18 years, for factors raised in a cultural report.73[46] The Cultural Report prepared under s 27 of the Act records that Mr Hajnal-Huata states he was "ripped away from his whanau" by Child Youth and FamilyServices (CYFS) at a young age. He then joined the Black Power gang, and "adoptedthem as [his] whanau". Mr Lynch submitted this has "directly led to his offending."The Cultural Report also notes that "systemic abuse" has made Mr Hajnal-Huata an"angry, angry young man".[47] Mr Stuart submitted the Cultural Report provides little evidence of a causalnexus between the relevant cultural factors and Mr Hajnal-Huata's offending. I notethe PAC Report recorded that Mr Hajnal-Huata stated that he was raised by "lovingand caring parents", and makes no mention of intervention by CYFS. The PAC Reportnotes Mr Hajnal-Huata stated his education had been "okay", however he left schoolat the age of 14 to work in the forestry industry. He has worked in the forestry industry,and shearing, since then.[48] I presume the qualifications of the writer of the PAC Report meet the relevantstandards of the Department of Corrections. In contrast, there is nothing in theCultural Report to establish the qualifications of the writer, or whether or not the writerhas a relationship to Mr Hajnal-Huata. Whilst the Cultural Report contains genericreference to the oppression and disadvantage Māori face as a result of colonisation andsystemic abuse, the only specific evidence relating to Mr Hajnal-Huata's experienceof systemic abuse is his reference to having been in CYFS care. He does not elaborateon this at all. If, for instance, the Cultural Report had established that Mr Hajnal-Huata had been violently abused whilst in state care, he may have established a nexusbetween systemic institutional abuse and his own anger management issues. But thereport is silent on this, and no personal links are drawn.[49] Nonetheless, the Judge, in his discretion, gave a discount of 13 per cent forfactors outlined in the Cultural Report. I consider this an appropriate discount in thecircumstances of this case.73 R v Rakuraku [2014] NZHC 3270.Was the end sentence manifestly excessive?[50] In light of the foregoing discussion, I do not consider the end sentence oftwo years, three months' imprisonment to be manifestly excessive.Result[51] The appeal is dismissed.Doogue JSolicitors:Crown Solicitor, GisborneWoodward Chrisp Solicitors, Gisborne