HALLETT v NEW ZEALAND POLICE [2018] NZHC 648

HALLETT v NEW ZEALAND POLICE [2018] NZHC 648 [11 April 2018]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2018-149-000009[2018] NZHC 648BETWEEN GILBERT GEORGE HALLETTAppellantAND NEW ZEALAND POLICERespondentHearing: 11 April 2018Appearances: M James for AppellantS F Gilbert for RespondentJudgment: 11 April 2018(ORAL) JUDGMENT OF LANG J[on appeal against sentence][1] Mr Hallett pleaded guilty in the District Court to charges of indecent assault,common assault and assaulting a constable in the execution of her duty. On 8 March2018 Judge Cocurullo sentenced Mr Hallett to 18 months imprisonment.1[2] Mr Hallett appeals against sentence on the basis that the Judge adopted astarting point that was too high in relation to the charge of indecent assault. This ledhim to impose an end sentence that was manifestly excessive in all the circumstances.The charges[3] All of the charges were laid as a result of a series of incidents that occurred onthe evening of 25 September 2017. At about 8 pm that evening Mr Hallett was in anarea of Victoria Street in Hamilton where roading contractors were working. A personstanding nearby told Mr Hallett to get off the road, no doubt because he was eitherplacing himself in danger or interfering with the manner in which the contractors wereworking. Mr Hallett reacted by raising his forearm and placing it against the victim'sthroat. He then pushed the victim backwards. The victim responded by pushingMr Hallett away before calling the police. As the victim called the police, Mr Hallettreturned and continued to push the victim whilst he was on the phone to the police.[4] Mr Hallett then walked away from the scene and towards the second victim, afemale. This victim told Mr Hallett to get off the road so that he would not be hurt.Mr Hallett then stood in front of the victim's face in an attempt to intimidate her. MrHallett then reached out with both hands and grabbed the female victim's breasts,thereby causing her to recoil backwards. The victim walked backwards away fromMr Hallett telling him not to touch her again. He ignored these entreaties and reachedout again, grabbing at the victim's breasts. Fortunately, a police patrol vehicle was inthe vicinity and Mr Hallett was arrested. After he was placed in the police car, hefilled his mouth with saliva and spat directly into the face of one of the constables inthe patrol car.1 R v Hellett [sic] [2018] NZDC 4358.The Judge's decision[5] Not surprisingly, the Judge took the charge of indecent assault as the leadcharge. He selected a starting point of 15 months imprisonment in relation to thatcharge. He then applied an uplift of four months to reflect the other two charges thatrelated to the constable and the first victim accosted by Mr Hallett. He applied a threemonth uplift to reflect the fact that Mr Hallett has a very lengthy list of previousconvictions for similar offending. This produced an end sentence of 22 monthsimprisonment before taking into account mitigating factors.[6] The Judge allowed a discount of four months, or just over 15 per cent, to reflectguilty pleas. These had been entered at varying stages. This produced the endsentence of 18 months imprisonment.Decision[7] Counsel for Mr Hallett contends on appeal that the Judge erred by selecting astarting point of 15 months imprisonment on the charge of indecent assault. Counselagree that the starting point fell within the range of six months and two yearsimprisonment. Ms James for Mr Hallett has referred me to several cases in whichsentences of around 18 months imprisonment have been imposed for more seriousoffending than that in the present case.2[8] I consider these cases to be of little assistance, because they involve sexualoffending designed for the gratification of the defendant. Mr Hallett's offending doesnot share that characteristic. Rather, it appears to have been cynical and spitefuloffending designed to embarrass, humiliate and cause great stress to the victim.[9] In addition, it is has had very serious effects for the victim. The victim impactstatement reveals that the victim has had ongoing consequences of a significant natureas a result of the offending and these are likely to persist for some considerable time.2 Berryman v R HC Hamilton A91/98, 28 August 1998; R v Hohaia CA221/05, 17 October 2005; S(CA227/2017) v R [2017] NZCA 459; Ludlow v Police HC Dunedin CRI-2011-412-000028, 28September 2011; Logan v Police [2013] NZHC 1631.There is also the aggravating factor that Mr Hallett persisted with a second assault,even after the victim had told him in no uncertain terms to desist.[10] Having regard to those factors, I do not accept that a starting point of six tonine months imprisonment would have been appropriate in relation to the charge ofindecent assault. A starting point of 15 months imprisonment may have been at thetop end of the range, but I consider it was still within the available range.[11] Even if the starting point had been slightly high, the Judge applied totalityprinciples when applying an uplift to reflect the other two charges. Each of thosecharges easily warranted an uplift of at least three months imprisonment. If that upliftwas applied the same end result would be achieved, even if a slightly lower startingpoint was selected.[12] No issue is taken with the level of uplift for previous convictions, and this isnot surprising given the very lengthy list of previous convictions Mr Hallett has nowamassed for very similar offending in the past. Similarly, no exception is taken to thecredit given for guilty pleas. That being the case, I discern no error in the Judge's endsentence, and the appeal cannot succeed.Result[13] The appeal against sentence is accordingly dismissed.Lang JSolicitors:Crown Solicitor, HamiltonPublic Defence Service, Hamilton