HOBBS-REYNOLDS v POLICE [2018] NZHC 1068

HOBBS-REYNOLDS v POLICE [2018] NZHC 1068 [16 May 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2018-404-077[2018] NZHC 1068BETWEEN SHANE HOBBS-REYNOLDSAppellantAND NEW ZEALAND POLICERespondentHearing: 7 May 2018Counsel: V Feyen for AppellantH G Max for RespondentJudgment: 16 May 2018JUDGMENT OF BREWER JThis judgment was delivered by me on 16 May 2018 at 11:30 ampursuant to Rule 11.5 High Court Rules.Registrar/Deputy RegistrarSolicitors/Counsel:Vivienne Feyen (Auckland) for AppellantMeredith Connell (Auckland) for RespondentIntroduction[1] Mr Hobbs-Reynolds pleaded guilty to one charge of injuring with intent toinjure.1 On 13 March 2018, Judge AM Wharepouri sentenced him to eight months'home detention.2 Mr Hobbs-Reynolds now appeals the length of the sentence. Hesubmits it is manifestly excessive.[2] I will allow the appeal only if I find an error in the sentence which meansanother sentence should be imposed.3 If there is an error which means the sentence ismanifestly excessive, then I will reduce the sentence to the one I find appropriate. Itis the sentence itself which must be looked at in the final analysis. Errors in theformulation of the sentence will not be significant unless they result in a manifestlyexcessive sentence.Background[3] Mr Hobbs-Reynolds was in a relationship with an ex-partner of Mr Bradley.On 20 March 2017, Mr Bradley displayed intimate photographs of his ex-partner onFacebook. The ex-partner tried to persuade Mr Bradley to take them down, but herefused.[4] Mr Hobbs-Reynolds drove from Te Atatu to Pakuranga where Mr Bradleylived. At about 7:30 pm, he walked into Mr Bradley's house through the front doorand went into the lounge where Mr Bradley was sitting on his bed. Mr Hobbs-Reynolds confirmed Mr Bradley's name and then punched him. The force of thepunch knocked Mr Bradley backwards. He recovered and was again punched in theface by Mr Hobbs-Reynolds. The force of this punch caused Mr Bradley to stumblebackwards towards the bathroom. Mr Hobbs-Reynolds then punched Mr Bradley athird time, this time to his nose, causing Mr Bradley to fall. While Mr Hobbs-Reynolds was punching Mr Bradley, he was yelling, "Take those fucking photosdown."1 Crimes Act 1961, s 189(2); the maximum penalty for which is five years' imprisonment.2 R v Hobbs-Reynolds [2018] NZDC 4752.3 Criminal Procedure Act 2011, s 250.[5] Mr Bradley agreed to remove the photographs from Facebook and did so atonce. He said to Mr Hobbs-Reynolds, "There, are you happy?" Mr Hobbs-Reynoldsthen called the ex-partner, saying, "Hey babe, I've got it sorted." He then leftMr Bradley's address.[6] As a result of the assault, Mr Bradley received injuries including a lipcontusion, a lip contusion laceration, a forehead contusion, and abrasions to his rightelbow and left arm.[7] Mr Hobbs-Reynolds entered a plea of guilty before trial after the Police agreedto withdraw a charge of threatening to kill.[8] Mr Hobbs-Reynolds had previously appeared before the Court. On 17 June2014, he was convicted on a charge noted as "demands to steal (other weapon)". Hewas sentenced to 40 hours' community work and supervision for six months.Sentence[9] Judge Wharepouri had regard, in particular, to Nuku v R4 and Green v Police.5He identified three aggravating factors: premeditation, unlawful entry intoMr Bradley's address, and an attack which focused on Mr Bradley's head. I infer theJudge decided the case fell into band two of Nuku. The Judge noted that in Green, adefendant who pleaded guilty to one charge of injuring with intent to injure was givena starting point of two years and three months' imprisonment. The Judge characterisedGreen as involving an unprovoked assault with three blows to the back of thecomplainant's head. The Judge acknowledged that unlawful entry was not a factor.Nevertheless, the Judge adopted the same starting point of two years and three months'imprisonment.[10] From that, the Judge deducted one month to take account of time spent onelectronically monitored bail. He made a further deduction of four months to reflectMr Bradley's behaviour which amounted to provocation. He did not consider there4 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.5 Green v Police [2017] NZHC 2378; Judge Wharepouri, in error, cited the case as R v Green (1994)11 CRNZ 641 (CA).was genuine or real remorse which would require a discrete credit. Finally, the Judgeapplied a 25 percent discount for the guilty plea. That took the sentence to 16-and-a-half months' imprisonment, which the Judge commuted to eight months' homedetention.Basis of appeal[11] Ms Feyen for Mr Hobbs-Reynolds submits Judge Wharepouri erred in threerespects. These are that the starting point was too high, credit should have been givenfor remorse, and credit should have been given for the time Mr Hobbs-Reynolds spentin custody on remand.[12] I will address each of these in turn.Starting point[13] Ms Feyen submits the Judge identified aggravating factors but did not evaluatetheir seriousness. The Court of Appeal in Nuku emphasised that the level ofseriousness of aggravating factors affects where an offence is positioned within aband.6[14] Ms Feyen referred me to a number of cases where aggravating factors whichMs Feyen submits were greater than those present in this case resulted in lower startingpoints.7 I do not find them particularly helpful. I accept the Crown's submission thatthe Court of Appeal has emphasised that when a guideline judgment exists, it isunhelpful to refer to a multitude of cases decided under the guideline judgment, all ofwhich turn on their own facts.8[15] I do note that Ms Feyen submitted Judge Wharepouri understated the degreeof violence present in Green. I agree. The case was not about an unprovoked assaultwith three blows to the back of the complainant's head. It concerned an unprovoked6 At [42].7 Livett v R [2016] NZHC 2306; Bennett v R [2012] NZCA 173; Pokaia v Police [2015] NZHC1718; Green v Police.8 R v Taueki [2005] 3 NZLR 372 at [11]; recently emphasised in Kauvai v R [2017] NZCA 241 at[13].attack where three blows were struck to the victim's back and rear of his head. JusticeNation goes on to record:[2] When the victim turned around, Mr Green punched him again.With clenched fists, Mr Green punched the victim five more times in the face,and the victim fell to the ground.[16] Justice Nation upheld the District Court Judge's starting point of two yearsthree months' imprisonment for this violence.[17] For my part, I have no doubt that the offending in the present case falls intoband two of Nuku. The aggravating factors identified by Judge Wharepouri are clearlypresent. I also accept the Crown's position that a fourth aggravating factor is thedegree of harm done to Mr Bradley. By that, I do not mean the physical injuries, whichwere relatively minor and which are subsumed within the charge itself. The victimimpact statement, to which the Judge does not refer, sets out in detail the ongoingemotional harm which Mr Bradley suffered and which led him to move to a gatedcomplex with 24-hour security.[18] Band two provides for a starting point of up to three years' imprisonment.[19] On my evaluation, a starting point of two years' imprisonment was appropriate.There was premeditation, there was a home invasion and there was violence. But theviolence used resulted in relatively minor injuries. The combination of the homeinvasion and the injuries caused significant emotional harm to Mr Bradley. In thesecircumstances, I place this case above the halfway point of band two but not beyondtwo-thirds. Judge Wharepouri erred in placing reliance on Green, a case where thelevel of violence was significantly greater and was also inflicted in the victim's home,although the offender was there by invitation.Remorse[20] Ms Feyen referred me to an affidavit of Mr Hobbs-Reynolds dated 26 April2018 in support of his appeal. Ms Max correctly points out there is nothing fresh orotherwise probative in the affidavit. However, Ms Max accepts the material in it wasput before Judge Wharepouri on sentencing in one form or another. On that basis, Iwill look at it for the sake of convenience.[21] Ms Feyen, in support of her submission that Judge Wharepouri should haveallowed Mr Hobbs-Reynolds credit for remorse going beyond that implicit in his pleaof guilty, points out that shortly after the assault Mr Hobbs-Reynolds went to theHenderson Police Station and told the Police what he had done. Mr Hobbs-Reynoldsdeposes he was told by the Henderson Police he should contact the Counties-ManukauPolice. Mr Hobbs-Reynolds did that. He deposes that the reason he contacted thePolice straight away is because he felt guilty. He says he immediately regretted hisactions and was sorry about the assault. Consistent with that, he wanted to attend arestorative justice conference so he could apologise in person.[22] Ms Max submits that Judge Wharepouri was correct to say that althoughremorse was present, it was not so over and above the remorse implicit in the plea ofguilty that greater credit should have been given.[23] I note the following comments of the Supreme Court in Hessell v R:9[64] Remorse is not necessarily shown simply by pleading guilty.Sentencing judges are very much aware that remorse may well be no morethan self-pity of an accused for his or her predicament and will properly besceptical about unsubstantiated claims that an offender is genuinelyremorseful. But a proper and robust evaluation of all the circumstances maydemonstrate a defendant's remorse. Where remorse is shown by the defendantin such a way, sentencing credit should properly be given separately from thatfor the plea.[24] In my view, Mr Hobbs-Reynolds's actions in going to the Police voluntarily dodemonstrate remorse and acceptance of responsibility for his criminal behaviour. Heis entitled to credit for that demonstration. But, having given Police a full confessionhe was bound to plead guilty. He did not do that at the earliest opportunity because hewas disputing the charge of threatening to kill. Nevertheless, he received the full25 percent discount available for his plea of guilty. Despite the full discount beinggiven almost automatically by some Judges when pleas are entered, that is not the law.Pleas entered to an unassailable prosecution case should not attract the full discount.9 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.Here, Mr Hobbs-Reynolds was fortunate to receive a 25 percent discount. I do notfind Judge Wharepouri was in error in not giving a separate discount for remorse.Discount for time on remand[25] Mr Hobbs-Reynolds was remanded in custody for approximately one month,from 24 November to 20 December 2017, whereupon he was released onelectronically monitored bail which required him to be at the bail address 24 hours aday, seven days a week. At the time of sentencing, he had spent about three monthson this restrictive electronically monitored bail.[26] Ms Max for the Crown submits that the one month allowance made by JudgeWharepouri was generous given that the time on remand and the period onelectronically monitored bail were entirely Mr Hobbs-Reynolds's responsibility. Hewas originally bailed on the charges arising from the incident in question. However,he then allegedly broke into an ex-partner's house to confront her and accordingly hewas charged with burglary. He was arrested because of this.[27] There is no rule about the level of discount that should be given for time spenton electronically monitored bail.10 It must, however, be taken into account, and thelength of time spent on electronically monitored bail, the restrictiveness of theconditions and the defendant's compliance with the conditions, are all relevant.11[28] Time spent in custody whilst on remand can be taken into account in thecalculation of the period of home detention.12[29] Overall, given the circumstances, I am satisfied that the allowance of onemonth given by Judge Wharepouri was appropriate. In any event, any further discountfor the time spent on remand would have been minimal given the length of the remand.10 Rangi v R [2014] NZCA 524 at [10].11 Sentencing Act 2002, ss 9(2)(h) and 9(3A).12 R v Rose [2017] NZHC 1488 at [58]; Nicholson v Police [2016] NZHC 300 at [25]; Laloni v R[2015] NZCA 55 at [9].Discount for provocation[30] The four-month discount for provocation amounts to 15 percent of the startingpoint. Ms Feyen does not take issue with this. But, I must consider its appropriatenessto determine whether the end sentence was within the range available to the Judge.[31] First, the provocation was indirect. Mr Bradley's actions were aimed at his ex-partner, not Mr Hobbs-Reynolds. Second, Mr Hobbs-Reynolds's actions can be seenas taking the law into his own hands. He was angry at the way his partner was beingtreated and he decided to take violent action to force Mr Bradley to take down thepostings. He succeeded.[32] There was, perhaps, a time when Mr Hobbs-Reynolds's actions would not onlyhave been condoned but applauded. This is not such a time. It was appropriate forJudge Wharepouri to recognise that but for Mr Bradley's provocative actions thisoffending would not have occurred, but the recognition should have been modest. Iwould allow no more than 5 percent.[33] Given the above, I would structure the sentence this way:Starting point: 24 months' imprisonmentLess:Allowance for EM bail 1 monthAllowance for provocation 1 monthGuilty plea discount 6 monthsEnd Sentence: 16 months' imprisonment commuted to eightmonths' home detention[34] It would be possible to add something for Mr Hobbs-Reynolds's 2014conviction, but on a totality basis I would not.Decision[35] Sentencing is not a science. Different Judges can reach different end points.In each case, there is a range of sentences available and it is only if a sentence is outsidethe range that it may be characterised as manifestly inadequate or manifestlyexcessive. In this case, I would put eight months' home detention at the upper end ofthe range. However, it is within the range available and accordingly I do not findJudge Wharepouri was in error to impose it.[36] The appeal is dismissed.________________________________Brewer J