HUTCHINSON v R [2020] NZCA 655

HUTCHINSON v R [2020] NZCA 655 [18 December 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA389/2020[2020] NZCA 655BETWEEN TYSON DISRAELI HUTCHINSONAppellantAND THE QUEENRespondentHearing: 10 November 2020Court: Brown, Duffy and Nation JJCounsel: N P Bourke for AppellantC Ure for RespondentJudgment: 18 December 2020 at 10.30 amJUDGMENT OF THE COURTA The appeal is allowed.B The sentence of five years and four months' imprisonment is quashed anda sentence of four years and ten months' imprisonment substituted.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] Following a sentence indication Mr Hutchison pleaded guilty to severaloffences, including those involving the use of firearms, that occurred during twoepisodes in March and October 2019. He was sentenced in the District Court atNew Plymouth by Judge Greig to five years and four months' imprisonment.1He appeals against that sentence contending that it was manifestly excessive.Factual background[2] At all relevant times Mr Hutchinson was a member of the Uru Taha gang.The incidents in March 2019 all involve conduct which he undertook at the behest ofMr Heke who was also a member of the gang.[3] On 29 March 2019 on Mr Heke's instructions Mr Hutchinson drove Mr Heketo a property at Omata Road, Marfell. Mr Heke fired a shotgun at the residentialaddress, hitting the house and a motor vehicle parked in front of the house.They disposed of their clothing by burning the items and then, at Mr Heke's direction,Mr Hutchinson dug a hole and buried the shotgun wrapped in a plastic bag.[4] In the evening of 29 March 2019 Mr Heke became agitated by the behaviourof another person and violently assaulted that person. Mr Heke held the victim on theground and demanded an associate to grab a shotgun which was on the premises.Mr Hutchinson retrieved the shotgun and handed it to Mr Heke. The firearmdischarged, striking the victim in the left arm and causing him severe damage.Mr Hutchinson removed the firearm, left the premises and disposed of the firearm.[5] Then on 31 March 2019 Mr Hutchinson formed the view that another personhad informed the police about his and Mr Heke's involvement in the events of29 March 2019. While Mr Heke held the person at gun point, Mr Hutchinson assaultedthe person by punching him about the head. Mr Hutchinson was arrested in relationto the March offending in July 2019 and was released on bail on strict conditions.[6] In the second episode in October 2019 Mr Hutchinson acted alone. He took avehicle without the owner's consent and drove to an address which was the localMongrel Mob gang pad. He fired a number of rounds from a .22 Ruger rifle at theproperty. This incident took place in a busy area with both residential and shoppingbuildings in the immediate vicinity. Police responding to the shooting incident1 R v Heke [2020] NZDC 12341 [Sentencing notes].observed the stolen vehicle travelling at 70 kilometres an hour in a 50 kilometreresidential/school zone and activated red/blue flashing lights and siren signallingMr Hutchinson to stop. Mr Hutchinson accelerated and fled from the police, crashinga short time later into a residential concrete fence.The sentencing decision[7] Mr Hutchinson was sentenced in respect of the following offending:(a) The March episode:Charge 1: Participation in an organised criminal group.2Charge 2: Possession of a firearm.3Charge 3: Discharge of a firearm with reckless disregard.4Charge 6: Accessory after the fact.5Charge 7: Common assault.6Charge 8: Assault with a weapon.7(b) The October episode:Charge 1: Unlawfully takes motor vehicle.8Charge 2: Commission of crime with firearm.9Charge 3: Failing to stop when followed by red/blue flashinglights.10[8] The sentence was constructed in this way. The March 2019 offending attracteda starting point of four years and 11 months' imprisonment. One year and nine monthsof that reflected charges 1–3, eight months for charge 6, and two years six months toaccount for charges 7–8. A three month uplift was applied to reflect that this offending2 Crimes Act 1961, s 98A(1) and 2(c): maximum penalty of ten years' imprisonment.3 Arms Act 1983, s 45(1)(b): maximum penalty of four years' imprisonment and/or $5,000.00 fine.4 Crimes Act, s 198(2): maximum penalty of seven years' imprisonment.5 Sections 71(1) and 312: maximum penalty of three and a half years' imprisonment.6 Section 196: maximum penalty of one year imprisonment.7 Section 202C: maximum penalty of five years' imprisonment.8 Section 226(1): maximum penalty of seven years' imprisonment.9 Section 198B(1)(a): maximum penalty of ten years' imprisonment.10 Land Transport Act 1998, ss 52A(1)(a)(ii) and 114(2): maximum penalty of a fine of $10,000.00.occurred while Mr Hutchinson was subject to a sentence of intensive supervision(for which there was total non-compliance). This took the end starting point for theMarch offending to five years and two months' imprisonment.[9] The October offending attracted an initial starting point of three years'imprisonment to which a nine month uplift was applied for aggravating factors.The October offending was committed whilst Mr Hutchinson was already on bail forthe March offending.[10] A full discount of 25 per cent was applied on account of Mr Hutchinson's earlyguilty plea. The Judge also applied a 15 per cent discount for a variety of personalfactors. He explained:11[13] Mr Hutchinson, this is not your fault and it is not Mr Bourke's fault,but I did find your report disappointing because it did not enable me to drawsuch a clear conclusion as it did with Mr Heke. But what it did highlight, andMr Bourke is right and his submissions on this were useful; what he has justsaid to me, the effect of the absence of a father in your life was two-fold. One,you yearned to be with him or be like him or be admired by him. Probablybecause he was an absentee, you had an artificial image of him. The secondis that because he was not there, you lacked what a father needs to do, whichis knock a bit of sense into a young boy and give him some maturity.[14] I agree with Mr Bourke that all of this is about a lack of maturity,a lack of judgement, and the desire to be a hood, be a gangster. So I think itdoes enable me to further reduce your sentence.[17] For a combination of other factors raised in the cultural report,which as I say - you have to work a lot harder to join the dots to make theconnection between your upbringing, the generational neglect. That was therebecause of your father, he was a victim of generational neglect and that hasdirectly been passed on to you; you grew up in a gang. So, the combinationof that, the combination of acting under the authority (because of yourimmaturity) of someone who lacked moral culpability, all equate also in yourcase to another 15 percent discount. So that is a 40 percent discount.The appeal[11] The appeal is advanced on four grounds:(a) The starting point was outside the available range.11 Sentencing notes, above n 1.(b) The uplift for the October offending was outside the available range.(c) Insufficient account was taken of the totality principle.(d) Insufficient credit was given for personal mitigating factors.[12] The appeal is brought pursuant to s 244 of the Criminal Procedure Act 2011.This Court must allow the appeal only if satisfied that there was an error in thesentence and a different sentence should be imposed.12The starting point was outside the available range[13] This ground of appeal was limited to the March offending. Mr Bourke, counselfor the appellant, submitted that the Judge applied an overly mechanistic andarithmetical approach in the identification of individual starting points for several ofthe charges which resulted in a manifestly excessive starting point.[14] He emphasised that Mr Hutchinson was a young teenage man with a limitedcriminal history who had clearly fallen under the sway of older, more criminallyexperienced members of the gang he was prospecting for. While accepting thatMr Hutchinson's presence provided support to the more senior Mr Heke, he arguedthat in reality the central offending was likely to have occurred with or withoutMr Hutchinson's involvement. He noted that the degree of participation of an offenderin the commission of an offence is relevant to culpability and that limited involvementis a mitigating factor to be taken into account.[15] By reference to this Court's decision in Gathergood v R13 Mr Bourke submittedthat the appropriate starting point for the lead charge in the March offending was inthe vicinity of two and a half to three years' imprisonment and that, rather than discreteadditional sentences, the appropriate course would have been to allow an uplift in thevicinity of 12 months to reflect the remaining charges within the March offending.12 Criminal Procedure Act 2011, s 250(2).13 Gathergood v R [2010] NZCA 350.[16] Mr Bourke is correct to say that the degree of participation of an offender inthe commission of an offence is relevant to culpability and that limited involvement isa mitigating factor to be taken into account.14 He makes the point that it is wellestablished that a sentencing judge may discriminate between offenders where thecircumstances justify a distinction being made.15[17] However it is apparent from the fuller explanation in the sentencing indicationof the construction of the sentence that the Judge did precisely that. In respect of thefirst band of the March offending the Judge discounted the starting point of two years'imprisonment in respect of Mr Heke by three months to reflect Mr Hutchinson's lesserrole. However during the course of the March offending Mr Hutchinson's roleprogressed from being the driver to twice concealing the relevant firearm to assumingthe role of actual assailant. Consequently in respect of the offending on 31 March theJudge did not discriminate between the two in indicating a sentence of two years,six months' imprisonment.[18] As we read the sentencing indication the Judge considered totality both inrespect of Mr Heke and Mr Hutchinson. He regarded the starting point of seven years'imprisonment for Mr Heke as a lenient sentence but in respect of Mr Hutchinson heindicated that on a totality basis the starting point should be reduced to five years'imprisonment. Unfortunately that discount appears to have been overlooked at actualsentencing.[19] We agree with Ms Ure that individually little if any criticism could be made ofthe selected starting points for the various offences in the March episode.In Gathergood a starting point of three years' imprisonment was consideredappropriate for a secondary role in respect of the lead charge of discharging a firearmwith reckless disregard.16 We understood Mr Bourke's emphasis to be that this Courtconsidered that the burglary charge was better addressed by an uplift than beingassessed on a stand-alone basis. However we view the facts of the present case as14 Sentencing Act 2002, s 9(2)(d).15 Police v Egden [1977] 1 NZLR 123 (CA) at 126.16 Gathergood v R, above n 13, at [28].rather different as they involve three distinct bands of offending with Mr Hutchinsonprogressing to a primary role.The uplift for the October offending was outside of the available range[20] Mr Bourke submitted that, while inherently dangerous, Mr Hutchinson'sactions in firing in the general direction of the Mongrel Mob gang house duringdaylight hours were unsophisticated and ill-conceived, noting that there was noevidence that any occupants were visible to Mr Hutchinson either inside or outside thepremises. Reference was made to Carrington v Police,17 a case of a young teenageman with limited criminal history acting impulsively, albeit with the acknowledgmentthat the offending in the present case was significantly more serious.[21] While in its terms this ground referred to the "uplift" in respect of the Octoberoffending, issue was taken with the starting point more generally, although nochallenge was directed to the imposition of cumulative sentences. In particular therewas said to be an unjustifiable disparity between the October sentence and the two yearstarting point which the Judge adopted in relation to Mr Heke in the context of theinitial March conduct. It was submitted that on a standalone basis the Octoberoffending warranted a sentence of no more than three years' imprisonment.[22] At the sentence indication the Judge recorded that the defence took no issuewith the starting point of three years' imprisonment proposed by the Crown. We viewthat figure as appropriate. The offending occurred in a residential area in the middleof the day with the potential for members of the public, whether pedestrians, road usersor residents in the target or adjoining properties, being placed at significant risk.Indeed the summary of facts records that a member of the public was driving directlybehind Mr Hutchinson when he fired the rifle. Mr Bourke appropriatelyacknowledged that given its deliberate nature Mr Hutchinson's offending was moreserious than that in Carrington which involved the accidental discharge of a stolenrifle at an address which Mr Carrington was visiting. Mr Carrington apologised to theperson whose house he was visiting and left.17 Carrington v Police [2016] NZHC 2351.[23] While Mr Heke may have been a little fortunate with the sentence allocated inrespect of the initial March offending, the totality of his offending was fairlyrecognised in the final starting point of seven years' imprisonment. In any event wedo not view the offending as closely comparable given that Mr Heke's offending wasnot during the day time.[24] In explaining the uplift the Judge referred to a level of premeditation and a riskof harm, together with the aggravating feature of the use of a firearm although thatwas reflected in one of the charges. To those features we would add that the Octoberoffending occurred when Mr Hutchinson was on bail for the March offending. In thecircumstances the uplift imposed was available.Insufficient regard to the totality principle[25] Where cumulative sentences of imprisonment are imposed, they must notresult in a total period of imprisonment wholly out of proportion to the gravity of theoverall offending.18 The sentencing judge must not only consider each offenceindividually but must also assess the offender's overall criminality and determine whateffective sentence is appropriate for the totality of the conduct.19 It was commonground that the total end sentence should not be determined by sequentially adjustingthe appropriate end sentence for each individual offence in order to fit the totalityprinciple.[26] In advancing the proposition that insufficient regard was given to the totalityprinciple Mr Bourke drew attention to the fact that the only reference to that principlewas in the sentencing indication when the Judge indicated that a two month discountwould be applied to the March offending on a totality basis. However at sentencingthere was neither reference to that discount nor to any other adjustment for totality.[27] Reference was made to Elliott v R20 which involved two charges of aggravatedrobbery and one charge of aggravated wounding, and R v Warren21 which involved18 Sentencing Act, s 85(2).19 R v Dodd [2013] NZCA 270 at [32]–[33].20 Elliott v R [2018] NZCA 526.21 R v Warren [2017] NZHC 2889.three charges of aggravated robbery where the starting points were nine years and tenyears respectively. While recognising that the offending in those cases was of asomewhat different nature from the present case Mr Bourke argued that they pointedto the overall starting point of eight years and 11 months' imprisonment beingmanifestly excessive, emphasising again the youth and criminal inexperience ofMr Hutchinson.[28] Proceeding from the starting points advocated above (three and a half to fouryears' imprisonment for the March offending and three years for the Octoberoffending) Mr Bourke submitted that due regard to the totality principle should resultin an adjusted starting point for all the offending in the vicinity of five and a half years'imprisonment.[29] As Ms Ure observed, the totality principle is not a discount for bulk offendingand an adjustment to individual sentences imposed cumulatively is not automatic.Furthermore the failure of a judge to mention the totality principle is of no moment ifthe sentence imposed is not out of proportion to the gravity of the offending.22[30] However it is apparent from the notes of the sentencing indication that theJudge was cognisant of the requirement to consider totality. He did so first in thecontext of the indication for Mr Heke and then in indicating a two month discount forMr Hutchinson in respect of the March episode. We infer that it was also in the Judge'smind when having observed that the end sentence, after the discount of 25 per cent forearly guilty pleas, of six years five months' imprisonment was a very long sentencefor someone of Mr Hutchinson's age, the Judge expressed the view that the sentencewas lenient in view of all the circumstances.[31] Mr Hutchinson's youth is a matter which we address in the context of the finalground of appeal. The omission of the totality discount referred to in the sentencingindication aside,23 which we consider should be remedied, we do not accept that therewas any error in the decision not to make a totality adjustment to Mr Hutchinson'ssentence. We agree with Ms Ure's submission that the offending is properly22 Kite v R [2018] NZCA 485 at [21].23 At [18] above.characterised as serious, sustained and, certainly in the context of the Octoberoffending, premeditated. On that occasion there was a risk of harm to a number ofpeople. In our view the ultimate sentence was appropriate, particularly so with theadjustments to which we refer below.Insufficient credit for mitigating features[32] Both Mr Heke and Mr Hutchinson received the same 15 per cent discount forpersonal factors. However, as Mr Bourke observed, whereas in respect of Mr Hekethe Judge identified 5 per cent in respect of youth and prospects of rehabilitation and10 per cent for s 27 factors, the Judge did not explicitly refer to the composition of thediscount for Mr Hutchinson. Mr Bourke submitted that a greater discount waswarranted for Mr Hutchinson both on account of his youth and matters identified inthe s 27 cultural report.[33] At the time of his offending Mr Hutchinson was 18 years old and, as the Judgeacknowledged, "an impressionable, immature young man", acting under the guidanceand pressure of an older male.24 Mr Bourke submitted that, despite his youth,Mr Hutchinson had demonstrated some level of insight into his offending, explainingto the PAC report writer that he did not seek to justify his offending and acknowledgingthat he was mixing with the wrong people and presenting as remorseful about thepossibility of harm to others in the community.[34] Mr Bourke then drew attention to pertinent details in the s 27 report,highlighting as perhaps the most poignant aspect Mr Hutchinson's recollection that onarrival at prison his father was there to meet him as a serving prisoner. Contrary to theJudge's analysis it was submitted that the linkage between Mr Hutchinson's offendingand his upbringing is abundantly clear and that, as with so many young Māori men,he has sought a sense of belonging by joining a gang.[35] He submitted that the deep-seated gang allegiance is at the very core of allMr Hutchinson's offending. Whereas his March offending involved him acting as aloyal foot-soldier obeying instructions from older, more criminally experienced gang24 Sentencing notes, above n 1, at [15].leaders, the October offending involved, in Mr Hutchinson's own words, "using myinitiative" to protect his hood from the Mongrel Mob. That observation was said toreflect both a significant level of immaturity but also that Mr Hutchinson's intentionswere entirely linked to doing what he thought was the right thing by his gang.[36] Referencing Solicitor-General v Heta25 and this Court's recent decision inKing v R,26 Mr Bourke submitted that Mr Hutchinson's youth, upbringing, his degreeof insight and prospects of rehabilitation, coupled with the full guilty plea, warranteda global discount of at least 50 per cent.27[37] It is apparent from the sentencing note that the Judge carefully weighed thes 27 reports and, while he considered there was greater clarity in the report concerningMr Heke, the Judge clearly recognised the significance of generational neglect and itsdownstream implications for Mr Hutchinson.28 Given that both received discounts forthe matters disclosed in the s 27 reports, we consider there is merit in Mr Bourke'ssubmission that it is surprising that the total discount for personal circumstances wasthe same for Mr Heke and Mr Hutchinson given that the former was four yearsMr Hutchinson's senior.[38] Ms Ure made the point that in considering a discount for youth the sentencingJudge faced a difficult task because the offending that was arguably the most seriouswas the latest in time. That offending was not impulsive, nor did it bear the hallmarksof youthful indiscretion.[39] Nevertheless we consider that at least in relation to the March episode a greaterdiscount was justified. Throughout that sequence of conduct it is apparent thatMr Hutchinson was acting under the instruction of a fellow gang member four yearshis senior. With reference to that episode, but not in relation to the October episode,we consider that a further discount of approximately six months was warranted.25 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241.26 King v R [2020] NZCA 446.27 A 50 per cent discount was recently considered appropriate in this Court's decision ofPolaapau v R [2020] NZCA 227.28 At [10] above.Consequently we would add a further 5 per cent discount for Mr Hutchinson's youth,increasing the discount for personal circumstances from 15 to 20 per cent.Conclusion[40] For the reasons stated above we consider that Mr Hutchinson should havereceived a two month discount for totality on the March offending to which the Judgereferred in the sentencing indication together with an additional 5 per cent discountfor youth.Result[41] The appeal is allowed.[42] The sentence of five years and four months' imprisonment is quashed anda sentence of four years and ten months' imprisonment substituted.Solicitors:Crown Law Office, Wellington for Respondent