HURRING v NEW ZEALAND POLICE [2020] NZHC 3309

HURRING v NEW ZEALAND POLICE [2020] NZHC 3309 [15 December 2020]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2020-412-000026CRI-2020-412-000027[2020] NZHC 3309BETWEEN STEPHEN JOHN HURRINGAppellantAND NEW ZEALAND POLICERespondentHearing: 14 December 2020Appearances: D L Henderson for AppellantR D Smith for RespondentJudgment: 15 December 2020JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 15 December 2020 at 9.30 am,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: 15 December 2020Introduction[1] Stephen Hurring was charged with threatening to kill, threatening to causegrievous bodily harm, possessing an offensive weapon and behaving threateningly.He was found guilty of behaving threateningly after a defended hearing, and pleadedguilty to the remaining charges. In a decision of 8 July 2020, Judge Crosbie sentencedMr Hurring to two years and five months' imprisonment.1 Mr Hurring now appealsthat sentence on the basis the starting point was manifestly excessive.Facts[2] The charge of behaving threateningly arose from events on 11 November 2018.Mr Hurring went to the victim's address and shared some beer with the victim and herboarder. A verbal argument took place, resulting in the victim asking Mr Hurring toleave and calling the police. Mr Hurring called her several insulting names and as heleft he said, "I'll get someone to burn down your house", mentioning the name of anarsonist who was known to both of them.[3] The other charges arose on the evening of 15 August 2019. Mr Hurring wasdrinking at his neighbour's house with several associates. He was highly intoxicated.At about 7.45 pm, Mr Hurring left the address and went across to his own house nextdoor. He took two long-handled spears from his own property, returned to theneighbour's house, and placed the spears against a cabinet in the lounge.[4] Soon after, Mr Hurring and the first victim got into a heated discussion.Mr Hurring grabbed one of the spears and pointed it towards the victim, approximately30 to 40 cm from the victim's body. Mr Hurring said, "I will put it through your heart",then "I'm going to kill you with it". Others present attempted to calm Mr Hurring,telling him to put the spear down.[5] Mr Hurring then turned the spear on the second victim, saying, "I could do thesame to you, if I don't get it through your heart I could stick it through your balls."The third victim told Mr Hurring to stop, at which point he turned the spear towardsher and said "be careful girl". The third victim left the property, fearing for her safety.[6] A short time later, Mr Hurring was outside on the porch area with thefirst victim. Mr Hurring was again pointing the spear at the victim in a threateningmanner. The victim told him to calm down, which he did, putting the spear down.1 R v Hurring [2020] NZDC 13139.The victim was able to grab the spears and hide them from Mr Hurring, but Mr Hurringthen became abusive and angry again, causing the victims to lock him out of the house.[7] Mr Hurring went over to his house and retrieved a large axe. He returned tothe neighbour's property, waving the axe threateningly. He attempted to jemmy openthe door with the axe, but was unsuccessful. Police arrived a short time later.District Court decision[8] Judge Crosbie outlined the facts of the offending and the effect it had had onthe victims. He noted Mr Hurring has "persistently and consistently" come before thecriminal justice system, with a number of convictions similar to the present charges.Judge Crosbie considered the relevant purposes of sentencing were accountability,denunciation, deterrence and rehabilitation.[9] The Judge had before him a pre-sentence report, psychological report andcognitive assessment. The pre-sentence report stated that Mr Hurring is known toconsume alcohol and become disrespectful towards others, and that such disrespect isheightened by his feelings of persecution and animosity towards others in thecommunity. That said, Mr Hurring also reportedly engages in "occasional publicgood", such as getting firewood for his neighbours. The psychological report assessedhim as presenting a moderate risk of further violent offending and lower risk of generaloffending behaviour. The cognitive assessment found Mr Hurring is likelyexperiencing cognitive decline due to a number of factors, which would contribute tohim acting impulsively and aggressively.[10] Judge Crosbie took the events of 15 August 2019 as the lead offending. Heaccepted there was a level of premeditation in that he returned with a second weaponafter being disarmed of the spears, but considered that had to be weighed againstMr Hurring's level of intoxication and cognitive issues. He also accepted the Crown'ssubmission that the threats were made to two different victims, and that Mr Hurringwas well positioned to carry out the threats. The Judge adopted a starting point oftwo years and three months, with an uplift of six months for the offending on11 November 2018.[11] Turning to personal factors, the Judge uplifted the starting point by four monthsfor Mr Hurring's previous convictions. He allowed a 10 per cent credit for "personalissues" and a further 10 per cent for guilty pleas. The end sentence was thereforetwo years and five months' imprisonment.Principles on appeal[12] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011, and must be determined in accordance with s 250 of that Act. 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.2 As the Court of Appeal mentioned in Tutakangahau v R quoting thelower Court's decision, a "court will not intervene where the sentence is within therange that can properly be justified by accepted sentencing principles".3 It is onlyappropriate for this Court to intervene and substitute its own views if the sentencebeing appealed is "manifestly excessive" and not justified by the relevant sentencingprinciples.4 The focus on appeal is the end sentence, rather than the process by whichthe sentence was reached.5SubmissionsAppellant's submissions[13] Mrs Henderson, counsel for Mr Hurring, refers to the Court of Appeal caseFaaleaga v R as providing the key factors for assessing culpability in threatening tokill offending.6 The first of those is premeditation. In relation to the 15 Augustoffending, Mrs Henderson submits there is no suggestion that Mr Hurring retrievedthe spears in order to use them violently, or that there was any planning in relation tothe threats made. His obtaining of the axe was an impulsive act in response to beinglocked out of the house.2 Criminal Procedure Act 2011, ss 250(2) and 250(3).3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].4 Ripia v R [2011] NZCA 101 at [15].5 Islam v R [2020] NZCA 140 at [32].6 Faaleaga v R [2011] NZCA 495.[14] In regard to the other factors in Faaleaga, Mrs Henderson notes the threatsmade to the two victims were made only once each — there was no repetition, nor wasthere a link to earlier violence. She accepts that, given Mr Hurring's close proximityto the victims at the time of the threats, he was capable of inflicting harm at theminimum.[15] Mrs Henderson refers to four cases in support of a lower starting point:(a) Allan v Police: following an argument with his partner, the appellantretrieved a rifle from his vehicle.7 The rifle had ammunition in it, butthe chamber was empty. He pointed it at the victim's head, saying "I'mdeadly serious. There's two bullets in here, one for you and then I'mgoing to kill myself." He then said: "if you try and end this relationshipI'll kill you and then me". The High Court upheld a starting point of12 months for the threat to kill, noting that a starting point of 18 monthsto two years might well have been considered appropriate.8(b) R v Sykes: the defendant, while intoxicated at a tangi, started yelling atthe victim and smashing items in the house.9 He threatened familymembers before retrieving a pistol and pointing it at the victim, saying"I will fucking kill you". He was restrained by his grandmother butcontinued to say "I'm going to kill you, I'm going to kill them". Thepistol was loaded but with the wrong calibre of ammunition, meaningit was not able to be fired. The High Court adopted a starting point of18 months.(c) Skerten v Police: the appellant waved a sledgehammer aggressively atthe victim, making threats that the victim was going to "burn".10 Theappellant had methylated spirits in his hand at the time of the threat. Astarting point of 15 months was upheld on appeal.7 Allan v Police HC Dunedin CRI-2011-412-37, 1 December 2011.8 At [33].9 R v Sykes HC Christchurch CRI-2008-009-2603, 19 May 2009.10 Skerten v Police [2015] NZHC 2882.(d) R v Williams: there was a confrontation between the defendant and thevictims after one victim made an inflammatory comment to thedefendant.11 The defendant smashed a car window and both partiesthen threw items at each other. The defendant was chased by thevictims and eventually threw a sword or swords in their direction. Hethreatened to kill them while in possession of a sword. The High Courtadopted a starting point of 12 months.[16] Mrs Henderson submits the starting point of two years and three months takenin the present case was manifestly excessive when compared with these cases. Takinginto account all the circumstances she submits the maximum starting point would bebetween 18 and 22 months. No issue is taken with the uplift or discounts applied, and,applying them, an end sentence of 22 to 26 months would be reached. Mrs Hendersonsubmits the difference is material enough to warrant allowing the appeal.Respondent's submissions[17] Mr Smith, for the Crown, submits the starting point was appropriate havingregard to the aggravating features. In terms of the degree of premeditation, he arguesthat Mr Hurring retrieved the spears for the purpose of making the threat as the notesof the attending constable record Mr Hurring as saying: "[The first victim] threatenedto kill me, came home got my spears went back". Mr Smith submits that this suggestsMr Hurring retrieved the spears for the very purpose of a confrontation with the firstvictim. He then, of course, went and retrieved an axe as well. Mr Smith says thisdemonstrates a level of premeditation, but records the Judge was careful in terms ofthe weight he attached to that feature given Mr Hurring's cognitive issues.[18] Mr Smith submits the Judge was correct to take into account that the threatswere made to multiple people. He accepts the offending was not linked to any earlierviolence but submits the Judge was also cognisant of that. Mr Smith submitsMr Hurring was plainly in a position to effect the threats he was making, and arguesthat this is an "essential" aggravating factor.11 R v Williams [2015] NZHC 2680.[19] Mr Smith submits the starting point of two years and three months was withinrange having regard to the nature of the lead incident, the presence of a number ofvictims and the fact that it occurred in another person's home. In response to theauthorities cited by Mrs Henderson, he submits those cases did not involve multiplethreats or the retrieval of another weapon. He also notes that the lead offendingoccurred while Mr Hurring was on bail for the earlier offending. The Judge did notuplift for this aggravating feature and the end sentence should be assessed taking thisinto account.[20] Mr Smith adds that the guilty plea credit of 10 per cent was generous givenMr Hurring was convicted of the first incident following a trial and pleaded guilty tothe second incident on the eve of trial. For all these reasons, he submits the endsentence was within range even if I take the view the starting point was stern.Analysis[21] There is no tariff case for the offence of threatening to kill.12 The maximumpenalty for that offence is seven years' imprisonment.13[22] In Allan, White J identified a number of factors that assist in determining theseriousness of threatening to kill offending.14 These include the degree ofpremeditation, the specificity of the threat, the apparent willingness to carry out thethreat, the use of a weapon, the level of harm or fear caused to the victim and whetherthe threat was made directly to the victim.[23] In the present case those factors are relevant as follows:(a) There was a level of premeditation, given Mr Hurring brought thespears over to the house before using them, and then later went back tohis house to arm himself with an axe. However, as recognised by theJudge, the level of premeditation is lessened by Mr Hurring'sintoxication and cognitive issues.12 Burchell v R [2010] NZCA 314 at [25].13 Crimes Act 1961, s 306.14 Allan, above n 7, at [29].(b) The threats were specific in terms of who they were aimed at, theweapon Mr Hurring intended to use and how he intended to use it.(c) There was an apparent willingness and ability to carry out the threatsgiven Mr Hurring was physically present and holding the weapon at thetime he made them.(d) The victims were, understandably, very frightened.(e) The threats were made directly to the victims.[24] In addition to those features, Mr Hurring threatened more than one victim, andhe retrieved a second weapon after the first was taken from him. Mr Hurring was alsocapable of carrying out the threats, as opposed to the cases of Allan and Sykes, wherethe firearms were not capable of being fired (albeit the victims were not aware of that).However, I accept the fear of the victims in those cases, when threatened with afirearm, may well be greater than in the present case.[25] In addition to the cases referred to by Mrs Henderson, I have consideredtwo further cases. In Freakley v R, the appellant went to the victim's house and waitedfor her to return.15 When she arrived he pointed a loaded shotgun at her and said"either you'll die or I'll die tonight". Eventually the victim persuaded him to put thefirearm down and was able to flee. The Court of Appeal held a starting point ofthree years' imprisonment was within the available range.[26] In Boyland v Police Simon France J observed that, where a starting point isadopted for threatening to kill along with other lesser offences, all of the offendingmust be taken into account in assessing seriousness.16 In that case, the appellantpointed a loaded shotgun at his mother's face and said "I [sic] going to shoot someone,or I could shoot you." He then took the weapon with him, still loaded, and drove withit until stopped by police. The Judge considered that tranche of offending justified astarting point of at least two years.1715 Freakley v R [2010] NZCA 497.16 Boyland v Police [2015] NZHC 2463 at [9].17 At [11].[27] In light of those authorities, I believe the starting point of two years andthree months was on the high side. A starting point in the range of 18 months totwo years would be more consistent with previous cases, noting I consider Sykesperhaps the most analogous case. However, if I take into account the fact the offendingoccurred while Mr Hurring was on bail for similar offending, I see no reason to adjustthe starting point. The six month uplift for the other incident of offending was alsoappropriate, and took into account totality.[28] No issue has been raised with the uplifts or discounts applied by the Judge, norcan I see any reason for questioning them. The sentence was therefore within rangeand was not manifestly excessive.Conclusion[29] The appeal is dismissed.Solicitors:Crown Solicitor, DunedinCopy to:Deborah Henderson, Barrister, Dunedin