HAMMON-HENRY v R [2022] NZCA 446

HAMMON-HENRY v R [2022] NZCA 446 [20 September 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA50/2022[2022] NZCA 446BETWEEN STEVEN BARRY HAMMON-HENRYAppellantAND THE KINGRespondentHearing: 20 July 2022Court: Courtney, Thomas and Peters JJCounsel: A D Hill for AppellantB J Thompson for RespondentJudgment: 20 September 2022 at 11.30 amJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Peters J)[1] The appellant, Mr Hammon-Henry, appeals against a sentence of five yearsand six months' imprisonment imposed by Judge Cooper in February 2021 on onecharge of wounding with intent to cause grievous bodily harm.11 R v Hammon-Henry DC Rotorua CRI-2020-063-1283, 24 January 2022.[2] The appellant contends the sentence is manifestly excessive. Mr Hill, counselfor the appellant, does not take any issue with the Judge's starting point of eight years'imprisonment. However, he submits that we should allow the appellant discounts forthe two matters referred to below, and he also seeks an increase in the discount theJudge allowed for the appellant's guilty plea, from just more than 20 per cent to25 per cent.[3] The appeal is brought pursuant to s 244 of the Criminal Procedure Act 2011.This Court must allow the appeal if satisfied that, for any reason, there is an error inthe sentence imposed, and that a different sentence should be imposed.2 It mustdismiss the appeal in any other case.3Extension of time[4] The appeal was filed in early February 2022, more than 10 months out of time.The appellant's explanation for this delay is that, after sentencing, he experiencedconsiderable difficulty communicating with counsel so as to give instructionsregarding an appeal. Prisoners were locked down for all but an hour or two every dayto minimise the spread of COVID-19. This made it difficult for the appellant to obtainaccess to a telephone.[5] We accept the appellant's evidence on this point and, there being no prejudiceto the Crown, grant the required extension of time.Background[6] The offending comprised retaliation against the complainant, a Mr C, for anunsatisfactory drug deal in mid-April 2020. The complainant had been due to supplyone of the appellant's co-offenders, Mr Palmer, with methamphetamine, but insteadhad supplied Mr Palmer with sugar. After consuming alcohol one evening, Mr Palmer,the appellant, and three others, Messrs Rhind, Friis and Sullivan-Brown, planned aresponse.2 Criminal Procedure Act 2011, s 250(2).3 Section 250(3).[7] On 27 April 2020, Mr Friis arranged to meet the complainant at a motel wherethe latter was staying, on the pretext of a further drug deal. The five to whom we havereferred, that is the appellant, and Messrs Palmer, Rhind, Friis and Sullivan-Brown,arrived at the motel at approximately midnight, in a car driven by the appellant. Withthe exception of Mr Sullivan-Brown, all surrounded the complainant's unit anddemanded that he come outside.[8] We have viewed the CCTV footage of the events which followed. Thecomplainant ran out of the unit, and the defendants, again excludingMr Sullivan-Brown, chased and caught him. They then proceeded to punch and kickthe complainant whilst he lay on the ground. The appellant punched the complainantin the face at least seven times and kicked him in the face twice.[9] A woman occupying an adjacent motel unit stepped outside but quicklyreturned inside when her young child also came out. The appellant and Mr Palmerresponded to this event by walking towards the woman's unit, making aggressivegestures and gang signals.[10] The defendants departed shortly afterwards, leaving the complainant on theground. It is clear from the footage and the summary of facts that the complainantreceived a severe beating. The summary of facts records that he sustained multiplefractures to his face and haemorrhages to an eye and to his brain, for which he requiredhospital treatment. He also suffered an ongoing concussion.[11] With the exception of Mr Sullivan-Brown, who was charged as a party to theoffending, the others to whom we have referred were charged as principal offenders.Sentence indication and disputed facts[12] In late October 2020, Judge Snell gave the defendants a sentence indication,adopting a starting point of eight years' imprisonment for the principal offenders andadvising that any defendant who accepted the indication within the following weekwould receive a 25 per cent reduction for his guilty plea. Discounts for othermitigating factors were left for sentencing.[13] The appellant did not accept the indication. He entered a guilty plea in earlyNovember 2020, but sought a disputed facts hearing on the basis that the summary offacts contained errors which, if corrected, would reduce his culpability.[14] The disputed facts hearing took place before Judge Cooper on 19 January 2021.Of the four points the appellant disputed, he succeeded on one only. This related to astatement in the summary of facts that the appellant had taken a photo of thecomplainant's face as he lay on the ground. The Judge accepted there was no evidenceto support this statement. He did not, however, consider this rendered the appellantany less culpable than the other defendants. Having viewed the CCTV footage, weconsider the Judge's assessment entirely correct.[15] The Judge sentenced Messrs Friis, Rhind and Palmer on the morning of12 February 2021. The appellant was sentenced that afternoon as Mr Nabney, his thencounsel, had been unavailable earlier in the day. As it turns out, due to oversight, theJudge's sentencing remarks in respect of the appellant were not recorded. The Judgesubsequently prepared a minute of 24 January 2022, setting out how he arrived at theappellant's sentence.[16] From a starting point of eight years' imprisonment, the Judge allowed theappellant a five per cent, or six-month, reduction for remorse; a further 20 months,being 20.8 per cent, for his guilty plea; and then a further four months to achieve adegree of parity between the appellant's end sentence and that of Mr Rhind andMr Palmer, whose culpability the Judge assessed as on a par. As we have said, theappellant's end sentence was five years, six months' imprisonment. The end sentencefor each of Mr Rhind and Mr Palmer was five years, two months' imprisonment. Asappears below, that four month difference essentially derives from the appellant'slesser discount for his guilty plea.AppealOffer of reparation[17] Mr Hill submits that we should allow the appellant an eight or nine monthreduction for his willingness to pay $2,000 to the complainant on account of emotionalharm the latter suffered as a result of the offending.[18] In support of appeal, Mr Hill filed several affidavits, including from theappellant, his mother, Ms Hammon-Henry, and his grandfather, Mr Hammon. Crowncounsel filed an affidavit from Mr Nabney. The appellant, Ms Hammon-Henry, andMr Nabney were cross-examined on their evidence.[19] We are satisfied from this evidence that the appellant wished to offer a paymentof $2,000 to the complainant, that the appellant and his mother had discussed this withMr Nabney prior to sentencing, and that they expected Mr Nabney to relay the offerto the Judge at sentencing. This was not done. Although Mr Nabney does not recallany discussion of such an offer, and his file contains no note of one, on the evidencebefore us we accept that such an offer was discussed. The appellant's andMs Hammon-Henry's evidence is to this effect. In fact, Ms Hammon-Henry'sevidence was to the effect that Mr Palmer's father told her that Mr Palmer would bemaking such an offer (which Mr Palmer did) and that she wished the appellant to bein a position to do likewise. Mr Hammon's affidavit is to the effect that he put hismother, Ms Hammon-Henry, in funds to make the payment.[20] Despite this, and for the following reasons, we are not satisfied that anyreduction to the appellant's end sentence is required on this ground, let alone one ofup to nine months. This is because, as Crown counsel, Mr Thompson, submitted theappellant received the discount he would have received had the Judge known of hiswillingness to make the payment.[21] The Judge gave Mr Palmer a discount of eight months to reflect both hisremorse for the offending and his offer to make a payment of $2,000 to thecomplainant. Mr Friis received a combined discount of nine months for the samematters. As for the appellant, the Judge gave a six month discount for remorse and anadditional four months to achieve parity with Mr Rhind and Mr Palmer. In short, hadthe appellant's offer been conveyed to the Judge, the total discount of 10 months wouldhave remained the same, substituting (at most) four months for the payment in lieu ofthe discount given for parity purposes.[22] Given that, we decline to allow any additional discount on this ground.Section 27 Sentencing Act 2002[23] Mr Hill next submits that the Judge erred in declining a discount for what hesubmits is a causal nexus between matters in the appellant's background, identified ina report submitted pursuant to s 27 of the Sentencing Act 2002 (s 27 report), and theoffending. Mr Hill submits that the Judge ought to have allowed a discount of 10 to20 per cent for this.[24] The Judge declined any reduction on this ground. In his minute, the Judgestates that he was not satisfied that an addiction to methamphetamine was causative ofthe offending. With respect to the Judge, a draft notice of appeal Mr Nabney preparedshortly after sentencing suggests that Mr Nabney sought a discount on a broader basisthan this. Indeed, the s 27 report does not suggest that the appellant was addicted to,or even particularly enjoyed, methamphetamine.[25] Given this, and the absence of the Judge's sentencing remarks, we shallconsider the matter afresh.[26] The s 27 report refers to the following matters. First, the appellant's father, towhom the appellant was close, died at aged 44 from a recently diagnosed terminalillness, when the appellant was only 15 years of age. It appears from the s 27 reportthat the appellant spent much time with his father, including in many outdoor pursuits.The appellant reported that his father's siblings drifted out of his life thereafter,meaning the appellant spent more time with Ms Hammon-Henry's family, to whom hewas not as close.[27] Secondly, the appellant reported that he started using cannabis when he was15, and that this quickly escalated to daily use. The appellant is also said to be afrequent user of MDMA, or ecstasy, but not of alcohol or methamphetamine. Thereis no suggestion in the s 27 report that the appellant considers himself addicted to anysubstance.[28] Thirdly, the appellant reports that he has struggled with his mental health sincehis father's death.[29] On the positive side, however, the appellant has a good employment historyand at the time of the offending was operating his own towing business.Ms Hammon-Henry has been managing the business for the appellant whilst he is incustody. We add that it was apparent at the hearing that Ms Hammon-Henry is fullysupportive of the appellant.[30] Mr Hill submits that there is "an obvious link" between the matters in the reportand the offending. He submits, correctly, that it is not necessary for the Court to besatisfied that the matters referred to in the s 27 report are the proximate cause of theoffending. Rather, it is sufficient if such matters might be considered to have impairedthe appellant's choice and to have diminished his moral culpability.[31] Mr Hill also submits that the appellant's background is similar to that ofMr Rhind's. The Judge allowed Mr Rhind a combined discount of eight months forremorse and matters identified in a s 27 report. We address this submission below.[32] In response, Mr Thompson submits that this is not a case in which a discountwas warranted, as no causative link between the appellant's background and hisoffending is demonstrated. Mr Thompson submits that recent authorities of this Courtrequire that link be demonstrated before any discount is awarded.4[33] Mr Thompson submits that there is no evidence that the appellant has beendeprived socially or economically, such that a link is readily apparent. He submits thatnone of the matters in the s 27 report can be seen to have impaired the appellant'schoices or diminished his culpability. In contrast to many of the unfortunate cases4 Herlund v R [2021] NZCA 71 at [51]–[54]; Cooper v R [2020] NZCA 510 at [24]–[26]; andLaipato v R [2021] NZCA 562 at [18]–[20].before the Courts, the appellant has not been institutionalised from a young age ordeprived of opportunities by his upbringing.[34] We are not satisfied that a discount for the matters contained in the s 27 reportis warranted. We accept Mr Thompson's submission that none of the matterscanvassed in the report are of such significance that they can be taken as diminishingthe appellant's culpability or contributing to his offending on this occasion. We acceptthe death of the appellant's father would have been a great loss to him, but as we havesaid, he has a good employment history, has established his own business, and plainlyhas the support of his mother and her family.[35] Lastly on this point, and with respect to Mr Hill, the appellant's backgrounddoes not appear at all similar to Mr Rhind's. In sentencing Mr Rhind, the Judge saidthat there were some "very destructive aspects" to Mr Rhind's childhood and earlybackground. A subsequent period of stability ceased when Mr Rhind's grandfatherdied, so that from the age of 15, Mr Rhind was back "in an unstable ... and an abusivesituation". The Judge said that he did not see any connection between the matters inMr Rhind's report and his offending, except that a "small reduction" was warrantedon account of the destructive aspects of Mr Rhind's upbringing. As we have said, thatreduction was eight months, including for remorse.[36] To conclude, given the absence of any established link between the matters inthe s 27 report and the offending, no discount is warranted or required.Discount for guilty plea[37] Mr Hill also submits that the Judge erred in not allowing the appellant the full25 per cent discount available for his guilty plea, as the Judge had allowed forMessrs Rhind, Palmer and Friis. Mr Hill also submits that Mr Nabney did not warnthe appellant that he might receive less than 25 per cent if he were unsuccessful at thedisputed facts hearing; that the hearing was of short duration in any event; and that,unlike Nathan v R, it was not an entirely unmeritorious attempt by the appellant toshirk responsibility for his role in the offending.55 Nathan v R [2011] NZCA 284.[38] We do not accept these submissions.[39] First, it is clear from records on Mr Nabney's file that he did warn the appellantthat the discount he received for his guilty plea could reduce if he did not succeed atthe disputed facts hearing.[40] Secondly, credit for an early guilty plea reflects the saving in the time and costotherwise required to be devoted to a matter.6 It also reflects the defendant'sacceptance of responsibility.7 A disputed facts hearing at which a defendant does notsucceed, even one of short duration, consumes resources and may be viewed asinconsistent with an acceptance of responsibility.[41] As we have said at [14] above, the appellant succeeded on one only of the fourpoints he advanced at the hearing, and even that success was inconsequential. Theother points the appellant advanced were quite unmeritorious. They included anassertion that he had gone to the motel on the night of the offending to purchasemethamphetamine from the complainant. The Judge found this suggestionimprobable, given Mr Palmer's unsatisfactory experience of the complainant as asupplier. The appellant also advanced a suggestion that he had punched and kickedthe complainant fewer times than the summary recorded, something the appellantexplained to us as having derived from his initial viewing of the footage on a smalllaptop screen. We note that Mr Nabney conceded at the hearing before the Judge thatthis suggestion could not be sustained.[42] The unmeritorious nature of these points indicate to us, and we believe theJudge, that the appellant was seeking to avoid full responsibility for his actions.[43] Lastly on this point, the Judge's minute records that at sentencing Mr Nabneysought a discount of 20 per cent, that is Mr Nabney did not ask for 25 per cent. Incross-examination before us, Mr Nabney said he believed that he had asked the Judgefor the full discount of 25 per cent, but that he could not now be sure. For ourselves,we would have considered a submission seeking a discount of 25 per cent ambitious,6 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [45].7 Nathan v R, above n 5.given the outcome of the disputed facts hearing. The Judge's discount of almost 21 percent was generous to the appellant.[44] To conclude on this and the other points advanced, we consider the appellantwas treated generously by the Judge, and there is no basis for reducing the appellant'ssentence.Result[45] The application for an extension of time to appeal is granted.[46] The appeal against sentence is dismissed.Solicitors:Te Tari Ture o te Karauna | Crown Law, Wellington for the Respondent