HALL v NEW ZEALAND POLICE [2019] NZHC 1370

HALL v NEW ZEALAND POLICE [2019] NZHC 1370 [17 June 2019]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2019463-44[2019] NZHC 1370BETWEEN HENDRIX HALLAppellantAND NEW ZEALAND POLICERespondentHearing: 17 June 2019Appearances: E Reilly for AppellantM Jenkins for RespondentJudgment: 17 June 2019ORAL JUDGMENT OF TOOGOOD J[Appeal against Sentence]Introduction[1] The appellant, Hendrix Hall, pleaded guilty to the following offending:(a) On 18 May 2018, assault on a child1 and common assault.2(b) On 20 May 2018, male assaults female.3(c) On 23 May 2018, intimidation.4[2] Mr Hall also failed to answer bail on 27 June 2018 and 5 September 2018.5[3] On 17 October 2018, Mr Hall was sentenced to 12 months' intensivesupervision by Judge GC Hollister-Jones.6[4] But then Mr Hall offended again:(a) On 8 December 2018, breach of a protection order7 and assaulting afemale.(b) On 15 December 2018, burglary.8(c) On 18 December 2018, breach of intensive supervision.9(d) On 3 January 2019, failing to report.101 Crimes Act 1961, s 194(a); the maximum penalty is two years' imprisonment.2 Section 196; the maximum penalty is one year's imprisonment.3 Section 194(b); the maximum penalty is two years' imprisonment.4 Summary Offences Act 1981, s 21(d); the maximum penalty is three months' imprisonment or afine of $3,000.5 Bail Act 2000, s 38; the maximum penalty is one year's imprisonment or a fine of $2,000.6 Police v Hall [2018] NZDC 22273.7 Domestic Violence Act 1995, s 49; the maximum penalty is three years' imprisonment.8 Crimes Act 1961, s 231(1)(a); the maximum penalty is 10 years' imprisonment.9 Sentencing Act 2002, s 70A(a); the maximum penalty is six months' imprisonment or a fine of$1,500.10 Section 70A(b); the maximum penalty is six months' imprisonment or a fine of $1,500.[5] Mr Hall pleaded guilty to these charges also. The Department of Correctionsapplied to have Mr Hall re-sentenced on all charges.11 That application was acceptedby Mr Hall. On 17 April 2019, therefore, Judge Hollister-Jones sentenced him to twoyears and 10 months' imprisonment for all of the offending.12 Notwithstanding thathe escaped a further two months' imprisonment because of a mistake by the Judge,Mr Hall now appeals.The offending[6] Mr Hall and M were in an intermittent relationship for roughly six years.18 May 2018 - Assault on a child and common assault[7] On 18 May 2018, Mr Hall was at home looking after M's 10-year-old son.Mr Hall told him to go to bed but the child went outside. Mr Hall grabbed him by thearms and pushed him into the door, causing a welt on his leg. M came home and herson told her what had happened. She confronted Mr Hall about it and an argumentensued. M ended up on the ground and Mr Hall dragged her outside by the feet.20 May 2018 – male assaults female[8] On 20 May 2018, Mr Hall was at home with M. They argued about splittingup. M went to have a bath. Mr Hall followed her and tried to pull her out of the bathby the wrist, telling her to leave the house. M evaded him and dressed herself andbegan to pack some clothes. Mr Hall came in and kicked M in the back as she sat onthe bed. As she was leaving, he tried to take one of her bags from her, causing thestrap to bend her finger upwards. Mr Hall then grabbed M and tried to push her outof the house.[9] M suffered minor bruising to her right arm and finger, as well as a minorabrasion to the back.11 Sentencing Act 2002, s 54K(1)(a).12 Police v Hall [2019] NZDC 7416.23 May 2018 – intimidation[10] On 23 May 2018, Mr Hall went to M's address in an intoxicated state. Hebanged on the windows and threw around pot-plants and outdoor furniture.[11] On 17 October 2018, the day Mr Hall was sentenced to intensive supervision,the Taupō District Court granted M a final protection order against him.8 December 2018 – breach of protection order and male assaults female[12] On the afternoon of 8 December 2018, Mr Hall and M were at home with someof M's friends. M went upstairs. Mr Hall followed her and an argument ensued.Mr Hall accused M of sleeping with his friends. M took exception to this and slappedMr Hall. Mr Hall responded by pushing her to the ground. M suffered a deeplaceration and swelling to the forehead. She fled the address. M needed six stitches.15 December 2018 – burglary[13] Mr Hall's landlord lived in a unit above him. The landlord terminatedMr Hall's lease on 26 November 2018 for non-payment of rent. He then wentoverseas. On 15 December 2018, Mr Hall gained entry to the upstairs unit without thelandlord's consent. He located a safe behind an oil painting and broke into it. Mr Hallstole:(a) two 12-gauge shotguns;(b) a .22 calibre air rifle (which was later located);(c) two .22 pistols;(d) ammunition; and(e) $8,000 in currency.[14] In explanation, Mr Hall said he was under the effect of methamphetamine. Hesaid he was in financial difficulty and knew his landlord kept firearms.Mr Hall[15] Mr Hall is 31 years old. He has numerous convictions, dating back to 2005,for driving and property-related offences and several convictions for violent offending.In 2009 he was convicted of assaulting Police. In 2010 he was convicted twice ofassault with intent to injure and three times of male assaults female for which wassentenced to six months' imprisonment.[16] In 2012 Mr Hall was convicted of two charges of male assaults female, assaulton a child and breaching a protection order. He was again sentenced to imprisonment.[17] Mr Hall was also convicted of burglary in 2010 (six months' imprisonment)and 2013 (11 months' imprisonment). There is also a conviction for receiving property(over $1000) in 2009 (three months' imprisonment).[18] Unsurprisingly, the pre-sentence report for the current offending assessesMr Hall's risk of reoffending as very high. He does not appear to have learned at allfrom the previous sentences of imprisonment; nor does he appear to have learned fromthe constructive rehabilitative focused sentence of intensive supervision, because lessthan two months later he was offending again in serious ways.The decision under appeal[19] Unfortunately, Judge Hollister-Jones made two arithmetical errors whenformulating Mr Hall's sentence at the re-sentencing hearing. Each error worked inMr Hall's favour.[20] The Judge took burglary as the lead charge and noted that it was premeditatedin that Mr Hall knew his landlord kept guns and cash. He also held as an aggravatingfactor that Mr Hall sold the guns to the Head Hunters, given the corresponding risk oftheir being used in serious crime. A starting point of two years and 10 months wasadopted. Judge Hollister-Jones then imposed a cumulative sentence of 14 months'imprisonment for the family violence offending for which he had previously beensentenced to intensive supervision: that is, the offending between 18 and 23 May 2018.[21] Turning to the offending on 8 December, the Judge described this as "not asserious as the previous family violence offending" and said that A had "started theincident off".13 But noting Mr Hall's overreaction to what was done and the "fairlysignificant injury" suffered by the victim, Judge Hollister-Jones considered that theoffending warranted a six-month uplift.14 A 20-month sentence for all of the familyviolence offending was described as appropriate.[22] The Judge then combined the two sentences but erred in his addition. Insteadof saying the total was four years and six months' imprisonment, the figure he declaredwas four years' imprisonment. Judge Hollister-Jones then uplifted this figure by fourmonths to reflect the remaining charges (breach of intensive supervision and failure toreport) along with Mr Hall's criminal history. From the resulting sentence of fouryears and four months he then gave a discount of two months for Mr Hall's remorseand a further two-month discount for totality.[23] That brought the figure contemplated by the Judge back to a sentence of fouryears. The Judge then applied a full 25 percent guilty plea discount from that figureand arrived at a final sentence of three years' imprisonment. But when setting out thesentences on the individual charges, the Judge made another error. He said:[17] The final overall sentence is three years. It will be two years, twomonths on the burglary, eight months cumulative on the male assaults femalecharge And then he imposed sentences on the other offending concurrently.[24] He clarified in an addendum to his sentencing notes, that while he had intendedto impose a sentence of three years, it was clear from what he had said at [17] of thenotes and what he had entered on the charging documents, that the total sentenceactually imposed was one of imprisonment for two years and 10 months. That wasthe second error.13 At [14].14 At [14].Submissions – Mr Hall[25] Ms Reilly, appearing for Mr Hall today, accepts that the starting point of twoyears and 10 months for the burglary was appropriate. But she says that the startingpoint of 14 months for the first set of family violence offending was too high. Therewas no attack on the head or punches, and other decisions of this Court indicate thestarting point should have been six months.15[26] In the written submissions no issue is taken with the six-month uplift for theoffending on 8 December, which included the breach of a protection order. Butcounsel argue that the provisional sentence should have been in the range of threeyears and 10 months' imprisonment. From this he says there should have been adiscount of 20 percent for totality; pointing to Court of Appeal authority where suchdiscounts were allowed.16[27] While accepting that some uplift for Mr Hall's criminal history wasappropriate, the written submissions suggest that the discount for remorse should havebeen higher. Counsel also point to the prospects of rehabilitation. Mr Hall has beenassessed as a suitable candidate for the Tai Aroha Residential Programme and he iswilling to attend. Those factors, it is suggested, should warrant a further discount ofbetween 10 and 15 percent.[28] Applying this and the guilty plea discount of 25 percent would have broughtMr Hall's sentence within range of home detention which counsel suggests should begranted.15 In L v Police [2017] NZHC 1463 the offender tracked her daughter down at the local netball courtsand punched her to the left side of the head, having been told that she was misbehaving. She thentook her home and told her to go outside to the carport area and punched her again in the face, tothe left side of the head, and kicked her three times in the buttocks with steel-capped gardeningboots. Whata J described a starting point of five to nine months' imprisonment as "clearly withinrange". In Williams v R [2017] NZHC 720 the offender slapped her five-year old son once to theleft side of his face while he was in hospital for routine surgery. He suffered redness but no lastinginjury. Venning J did not disturb the starting point of four months on appeal.16 Opetaia v R [2013] NZCA 434 and Haywood v R [2015] NZCA 551.Submissions – the respondent[29] Mr Jenkins, for the respondent, points out that Mr Hall benefited from JudgeHollister-Jones' miscalculations to the tune of some six-and-a-half months. All of thestarting points and uplifts imposed by the Judge are said to have been appropriate;although, according to Mr Jenkins, the two-month discount for remorse wasexceedingly generous given Mr Hall's criminal history.Discussion[30] I must allow Mr Hall's appeal if I am satisfied that there is an error in thesentence appealed from such that a different sentence should be imposed.17Ultimately, the focus on appeal is on the sentence imposed, rather than the process bywhich the end sentence is reached.18[31] Thus, while I accept that there is some force in Mr Jenkins' submissions aboutthe Judge's miscalculations, that is not determinative. What matters is whether theend sentence, however it was arrived at, was within the available range andappropriate. I note also that the impact of the first arithmetical error is somewhatacademic. The Judge later made an adjustment for totality because he considered,apparently, that a sentence of four years' imprisonment was appropriate to recognisethe seriousness of the offending overall, before applying the discount for the guiltypleas. I am not disposed to disagree with the Judge that an end sentence of four yearsbefore the plea discount was an appropriate sentence, or at least within the range ofappropriate sentences available.[32] An appellate Court has the power to increase a sentence on appeal by anoffender if it considers the original sentence was inadequate.19 This was a power17 Criminal Procedure Act 2011, s 250(2).18 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].19 See, for example, Gee v Police HC Auckland AP54/89, 28 April 1989; Perry v Police HC DunedinAP80/90, 19 July 1990; Easterbrook v Police HC Christchurch AP185/91, 16 August 1991; Blackv Police HC Timaru AP80/91, 13 December 1991; Konig v Police HC Auckland AP12/97, 18 April1997; Saunders v R HC Dunedin AP42/98, 28 October 1998; Baledrokadroka v Department forCourts HC Hamilton AP73/00, 15 December 2000.reserved under old legislation.20 The appellate Court was explicitly empowered toquash the sentence and pass "such other sentence warranted in law (whether more orless severe) in substitution therefor" as the Court thought ought to be passed. Nothingin the Criminal Procedure Act 2011 indicates any intention by Parliament that thecourts should take a different approach under that Act.[33] So, two issues must be addressed:(a) First, was the sentence of two years and ten months' imprisonment, asimposed by the Judge, within the range reasonably available to theCourt?(b) Second, if so, should the sentence be increased to the sentence the Judgeintended to impose? Answering that question would entail consideringwhether the higher sentence was also within the available range.[34] The starting point of 14 months for the first set of offending was appropriateand I do not think the cases cited by counsel for Mr Hall indicate otherwise. Each ofthose cases involved an assault on a child only. Mr Hall's relevant offending involvedone assault on a child and two separate assaults against M.[35] Further, I do not regard it as helpful to base a discount for totality on apercentage approach. Such a discount relies on a judicial assessment of thecircumstances of each case and whether the total end sentence reached on acombination of the sentences for individual offences is out of proportion to the overallcriminality of the offending.[36] Given Mr Hall's extensive criminal history, particularly the repeated instancesof family violence, it would have been open to Judge Hollister-Jones to refuse to givea discount for remorse.21 Similarly, while a discount may be given to recognise adefendant's efforts towards rehabilitation, it is a factor properly left for the Judge's20 For the powers of the High Court on appeal against sentence see s 121 of the SummaryProceedings Act 1957; for the powers of the Court of Appeal and Supreme Court see s 385 of theCrimes Act 1961.21 R v Ngamo [2009] NZCA 512 at [9].assessment and may be refused if the defendant has an extensive criminal history.22I cannot say that Judge Hollister-Jones' failure to recognise this factor resulted in anend sentence that was manifestly excessive. Indeed, given the arithmetical errors thatI have outlined, Mr Hall was fortunate not to have been sentenced to a longer term ofimprisonment.[37] The overall starting point of four years' imprisonment was entirely withinrange. Indeed, were it not for the miscalculation it would have been six months higher,and I also consider that such a starting point would not have been manifestly excessive.From there it would have been open to the Judge to apply a sterner uplift for Mr Hall'sprevious convictions and breach of supervision. And given my comments on theappropriate discounts, I consider a sentence of four years' imprisonment before takingthe guilty pleas into account may be regarded as a generous one. The final, inadvertentdiscount of two months served as a further boon to Mr Hall. It follows that it is myview that the end sentence was far from manifestly excessive. Indeed, it could readilybe described as lenient.Result[38] The respondent has not sought an increase in the sentence to correct JudgeHollister-Jones' technical error at the end, and I do not in the circumstances considerit would be appropriate to correct that error by increasing the sentence. Mr Hall hasembarked on a sentence of imprisonment on the basis that he faces one of two yearsand 10 months and it would not be fair to him nor to assist his rehabilitation to increasethe sentence any further. Moreover, an extra two months would not add anythingsignificant to the punitive elements of the sentence or to his prospects of rehabilitation.In the circumstances, I simply dismiss the appeal..............................................Toogood J22 Ross v Police [2015] NZHC 1633 at [43].