R v Te Huia [2018] NZHC 3039 (22 November 2018)

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R v Te Huia [2018] NZHC 3039 (22 November 2018)

Last Updated: 10 December 2018

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2017-019-004897 [2018] NZHC 3039

THE QUEEN

v

STORM TE HUIA

Hearing:	22 November 2018
Appearances:	J Foster for the Crown T Sutcliffe for the Defendant
Sentenced:	22 November 2018

SENTENCING NOTES OF MUIR J

Counsel:

T Sutcliffe, Barrister, Hamilton

Solicitors:

J Foster, Almao Douch, Crown Solicitors, Hamilton

R v TE HUIA [2018] NZHC 3039 [22 November 2018]

Introduction

[1] Mr Te Huia appears for sentence on one charge of wounding with intent to injure,¹ arising out of a violent assault in Te Awamutu. He pleaded guilty to the current charge five days before the start of his trial on 23 July 2017.

[2] An unusual and tragic feature of this case is that the victim, Mr Hallmond, died shortly after the assault. Mr Te Huia was initially charged with murder. However, the Crown ultimately withdrew that charge, and substituted the current charge. That was because two pathologists were unable authoritatively to identify the cause of death. The Crown could not, therefore, establish a sufficient causative link between Mr Te Huia’s actions and the victim’s death to support a charge of murder. For this reason, and despite the understandable sentiments expressed in various of the victim impact statements from relatives, who in their mind regard the assault and Mr Hallmond’s death as linked, for the purposes of sentencing Mr Te Huia I must exclude from my mind any such link.

[3] I appreciate that this position will inevitably invoke feelings of injustice on the part of Mr Hallmond’s relatives. However, I am sure they will appreciate that were any of them charged with the death of another they too would require the strongest proof that their actions were responsible for the crime for which they stood trial.

Background

[4] In June 2016, Mr Te Huia, the victim, Mr Hallmond, and another person were present in a house in Te Awamutu. The police came to the house to do a bail check on one of the occupants. While doing so, they found Mr Te Huia to be in possession of a stolen motorcycle, drugs and drug paraphernalia. He was charged with several offences, convicted and imprisoned for a five-month period.

[5] Mr Te Huia blamed the victim for this arrest, believing him to be a police informant. He made a subsequent post on the victim’s Facebook site suggesting the victim’s days were numbered, and that “narks can eat shit”.

¹ Crimes Act 1961, s 189(2). Maximum penalty 7 years’ imprisonment.

[6] Nevertheless, in July 2017 the victim arranged to do a drug deal with the defendant at the defendant’s house, the victim’s intention being to sell the defendant half a gram of methamphetamine. The defendant’s intention meanwhile (so he told a female associate), was to take the methamphetamine without paying the victim for it, as revenge for the victim having allegedly “narked” on him.

[7] The victim duly came to the house, and when the drugs were passed without payment an argument predictably ensued. In response to the victim’s demand that the defendant give him the money the defendant responded with words to the effect “fuck off, you’re a nark. I spent five months in jail because you’re a nark”. The argument turned physical, with each throwing punches at the other. The fight started in the house but spilled out into the front garden. Subsequently the defendant returned inside before he and a female occupant again went into the front garden. At that stage the female occupant observed the victim lying unconscious in the gateway of the garden path. He showed signs of injury and had blood trickling down the side of his head. The defendant then dragged the victim across the footpath to the grass verge, adjacent to the road, and left him there.

[8] Shortly afterwards, two members of the public, who knew the victim, were, it is said, directed by the defendant to the victim’s side as he lay on the verge. An ambulance was called and CPR was in the interim administered. The defendant attempted to help as best he could. Despite the subsequent efforts of the paramedics, however, the victim died at the scene.

[9] A post-mortem examination revealed that the victim suffered numerous injuries: lacerations, a fractured rib, broken teeth, bruising around the head and a fractured and dislocated jaw, among others. A number of the victim’s teeth were found around the scene of the fight. However, as I have indicated, the pathologists were unable to establish that the defendant’s actions caused the victim’s death.

[10] A matter of days after the victim died, the defendant told another person that he had hit the victim half a dozen times in the house and that he subsequently knocked him to the ground in the garden and kicked him while he was in that position.

Victim impact statements

[11] I have received several statements from members of Mr Hallmond’s family, which I am invited to consider on an application by the Crown under s 20 of the Victims’ Rights Act 2002. I grant that application without opposition from Mr Sutcliffe. They leave me with no doubt that the victim was a much loved member of his immediate family and that his death has left them truly bereft. I am particularly moved by the statement of Mr Hallmond’s 11-year-old daughter. She describes him as “the best dad in the world”. Her agony that the victim will never get to support her in later life, will never be able to take her on all of the adventures a father should have with his daughter and that he won’t be there for her important milestones in life, spills from the page of her victim impact statement.

[12] Other members of his family—his aunt, his sisters, and his mother—have also provided moving statements. Mr Hallmond’s death coincided with the birthday of two of his nephews. Both his mother and sister write of their sadness that this otherwise happy day is now haunted by the death of a loved one. All of them recount how his death has affected their lives: his mother has suffered severe anxiety and depression; his aunt has had to move to support her sister and now finds herself in impoverished circumstances. Some have lost a treasured confidant, or a guaranteed smile.

[13] All of them hold Mr Te Huia responsible for Mr Hallmond’s death. This is, as I have indicated, in some sense understandable, albeit not a consideration I can take into account for the reasons I have identified.

Mr Te Huia’s personal circumstances

[14] Mr Te Huia is 48 years’ old, and of Māori descent. He was unemployed at the time of the offending. He reports that his peer group is predominantly made up of anti-social people. His only pro-social connection is his sister. He is estranged from the rest of his family, although he says he is trying to rebuild relationships with them. He is said to have been in a highly destructive relationship at the time of the offending. That relationship has now ended.
[15] Mr Te Huia has a limited history of violence. Indeed, he has only one violence related conviction: male assaults female, in 2015. Although he does have an extensive criminal history, most previous offending has related to drug usage or is in the nature of driving offences. The index offending therefore represents a significant escalation in violent criminality. In addition, this offending occurred while he was subject to release conditions.

The pre-sentence report

[16] The report writer notes that Mr Te Huia says he does not consume alcohol, but agrees he has a significant drug problem. He is assessed as being at high risk of harm from drugs and at high risk of reoffending having regard to his relationships, drug usage and the people he associates with. The author further assesses his risk of harm to others as medium, noting his limited history of convictions for violence, but concluding that the current conviction demonstrates that he is willing to resort to violence in conflict situations.

[17] It is said that he appears to take responsibility for his offending, and has demonstrated some insight into the causes of his offending and a desire to make changes in his life. He indicated he was reluctant to attend a restorative justice conference, expressing concern about his ability to deal meaningfully with the victim’s family. He did, however, say that he would attend such a conference if the family wanted him to.

Approach to sentencing

[18] In sentencing Mr Te Huia, I must have regard to the purposes and principles of sentencing in the Sentencing Act 2002.² In respect of serious violent offending, of which this is an example, I consider the requirements to denounce the defendant’s conduct, to deter others from committing similar offending, and to hold the offender accountable for the harm done to his victim’s family to be particularly relevant. I must also bear in mind the need for consistency with sentences in similar cases and the effect of his offending on the victims.

² Sections 7 and 8.

[19] I will undertake the following process in determining the appropriate sentence.³ Firstly, I will set a starting point, based on the aggravating and mitigating features of the offending, informed by the sentences imposed in broadly similar cases. Secondly, I will consider whether any of Mr Te Huia’s personal circumstances require an adjustment to that starting point, including any remorse he has shown. Thirdly, I will determine what, if any, discount Mr Te Huia should be given for his guilty plea. Finally, I will consider whether it is appropriate to impose a minimum period of imprisonment.

Starting point

[20] As the charge for which Mr Te Huia has been convicted is wounding with intent to injure, the tariff cases of Nuku v R and Taueki v R apply.⁴ To arrive at a starting point, I must first identify the aggravating and mitigating features of the offending. Taueki identifies a number of aggravating features which may potentially apply.⁵ The Crown submits the following are present:

(a) Extreme violence—the Crown submits that while the violence did not extend over a significantly extended period, it was extensive and involved repeated violent acts targeted at different parts of the victim’s body. The defence responsibly accepts this feature as present.

(b) Attacking the head—the Crown submits and the defence again accepts this feature as being present. Mr Te Huia repeatedly struck the victim in and around the head, as evidenced by the injuries sustained by him.

(c) Premeditation—the Crown submits that the defendant’s actions were highly premeditated. It says this is demonstrated by the threats the defendant made via social media, and his plan in relation to the drug deal. The defence does not accept this factor as present, or, if it is, suggests premeditation was at a low level. I am not prepared to infer

³ Following the well accepted approach articulated in R v Taueki [2005] 3 NZLR 327 (CA); and

Hessel v R [2010] NZSC 135, [2011] 1 NZLR 607.

⁴ Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39; and R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA).

⁵ At [31].

from the defendant’s actions that he had, substantially in advance of the altercation, intended to wound the victim with intent to injure despite the Facebook posting. However, he must have been aware that fulfilment of his plan to take the drugs without payment carried a high risk of physical altercation, which had the capacity to escalate quickly. And there was a pre-meditated plan to cause the victim harm if only in the sense of depriving him of what he was dealing in without payment. Because identification of premeditation is not in this case essential for Nuku banding I set it aside for that purpose. However, in terms of the ultimate penalty I take into account the fact that the offending occurred within the context of a larger premeditated plan.

(d) Serious injury—the Crown submits that it is “self-evident” that serious injury resulted. It says, however, that this feature will be of less significance where the intent alleged is to injure only. The defence submits this factor is not present. It says that the injuries themselves were not life threatening, in that sense falling back on the legal construct I must apply. Nevertheless I am, on the basis of the identified injuries (including fractured ribs and jaw, loss of teeth and significant bruising to the head), prepared to recognise as an aggravating feature that serious injury occurred.

(e) Facilitation of crime—the Crown submits the use of violence resulted from the defendant’s plan effectively to rob the victim of methamphetamine. That pitches the case too highly, as there is no evidence that the defendant intended to take the victim’s methamphetamine with violence or threats of violence. More likely the drugs were voluntarily given to the defendant who then revealed his premeditated plan. In my view the defence is correct when it says that the violence was not used to facilitate another crime—rather it followed, in what I consider an almost inevitable escalation, from an arguable crime earlier committed. I exclude this factor therefore in my assessment.
(f) Vulnerability—the Crown submits that although the victim was not vulnerable at the outset of the offending, at the point he was overpowered and lying prone on the ground he became a vulnerable victim in terms of the further violence (and in particular kicking) administered to him as he lapsed into unconsciousness. The defence makes no submission in this respect. I accept that there came a point during the course of the assault where the victim’s status is correctly described as vulnerable and that the violence continued thereafter.

[21] Neither side identifies any mitigating features of the offending. In this respect I regard Mr Te Huia’s ultimate attempts to assist the victim as balanced by the fact that he dragged him on to the street berm and left him there unconscious in the first place.

[22] Against the background of these aggravating features, I must now decide where this case sits within the sentencing ranges identified in Nuku. Neither Crown nor defence suggests this is Band 1 offending. Bands 2 and 3 are defined as follows:⁶

Band 2: a starting point of up to three years’ imprisonment will be appropriate where three or fewer of the aggravating factors listed at [31] of Taueki are present.

Band 3: a starting point of two years up to the statutory maximum (either five or seven years, depending on the offence) will apply where three or more of the aggravating features set out in Taueki are present and the combination of those features is particularly serious. The presence of a high level of or prolonged violence is an aggravating factor of such gravity that it will generally require a starting point within Band 3, even if there are few other aggravating features.

[23] The defence submits this offending sits in Band 2. On its case, there are only two aggravating features. The Crown by contrast submits this case falls squarely within Band 3.

[24] Although categorisation (and sentencing generally) is not a formulaic exercise (emphasised by the fact that the bands in Taueki in fact overlap), the four aggravating features I have identified plus the fact that the attack extended from the home and into the garden over at least one or more minutes satisfy me that it is appropriate to consider

⁶ Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [38].

the offending as falling within Band 3. Within that Band, however, there is a wide discretion as to ultimate sentence between two and seven years’ imprisonment. I have considered in that context a number of cases referred to me by counsel and summarised in a Schedule annexed to these sentencing notes. In my view this case is closest to Wynd v Police in which a two year nine month starting point was adopted, although noting that the violence in that case had none of the background or interparty history present in respect of the current offending.⁷

[25] Taking both these authorities and the suggested starting points of Crown and defence into account,⁸ I consider two years and 10 months’ imprisonment to be the appropriate benchmark.

Factors personal to Mr Te Huia

[26] I now consider whether there are any aggravating or mitigating features personal to Mr Te Huia that require an adjustment to that starting point.

Aggravating features

[27] This offending occurred while Mr Te Huia was subject to release conditions. The Crown submits this is a significant aggravating feature. It submits that an uplift of six months would be appropriate. The defence makes no submission on that point. Having regard to the authorities,⁹ the Crown’s suggested uplift is in my view excessive, but I do consider the starting point appropriately increased by two months to recognise this factor.

Mitigating features

[28] The defence does not advance any personal mitigating features.

[29] The pre-sentence report notes that the defendant has expressed some remorse for his actions, and demonstrates some insight into his offending. It also notes that he

⁷ Wynd v Police [2013] NZHC 1270.

⁸ Respectively three years six months and as low as 18 months’ imprisonment.

⁹ Goodman v R [2016] NZCA 64 at [14]–[15]; and Hune v R [2018] NZCA 294 at [12].

was willing to engage in restorative justice, but only if the victim’s family wanted that. A meaningful attempt to engage in restorative justice, even in face of victim refusal, often attracts a discount in this Court. However, there was no such attempt here, nor any other tangible expression of willingness to try to make amends prior to today. I accept the element of remorse implicit in any guilty plea and I accept that the letter provided to the Hallmond family this morning appears genuine in its expression of self-disgust and remorse. But the letter comes very late and there is nothing in this case sufficiently exceptional, in my view, to warrant a discrete discount in this respect.

[30] In the result, the sentence I arrive at before consideration of guilty plea discount is three years’ imprisonment.

Guilty Plea

[31] Mr Te Huia pleaded guilty, but only five days before the trial began.

[32] This is not a case of a late amendment to a charge and resultant guilty plea immediately thereafter. As the Crown says, it had been open for the defendant to plead to the charge of wounding with intent to injure for five months before the scheduled trial. The Crown also submits that it had a very strong case. There were witnesses who heard the assault; it was not in issue that the defendant was at the scene; the defendant admitted to an associate what he had done, and he provided details of the offending. The Crown submits that, in these circumstances, a discount of five per cent only is appropriate.

[33] I allow a three-month discount equating to 8.33 per cent.

[34] This brings me to a final sentence of two years and nine months’ imprisonment. This is not within the range that would allow me to consider a community based sentence. I would not, in any event, have regarded that as appropriate.

Minimum period of imprisonment

[35] The Crown submits that a minimum period of imprisonment is required to denounce Mr Te Huia’s offending and, having regard to his high risk of re-offending, to provide for the protection of the public.

[36] The Court may impose a minimum period of imprisonment that is longer than the normal non-parole period if satisfied that this period would be insufficient to hold the offender accountable, denounce their conduct, deter the offender and others from similar offending, or protect the community.¹⁰

[37] I consider that the term of imprisonment I have imposed is sufficient to satisfy those purposes. I decline to impose a minimum period of imprisonment. Mr Te Huia’s release will in that context be a matter for Parole Board consideration.

Conclusion

[38] Mr Te Huia, please stand.

[39] On the charge of wounding with intent to injure, I sentence you to two years and nine months’ imprisonment.

[40] Please stand down.

Muir J

¹⁰ Sentencing Act 2002, s 86(2).

ANNEXURE A

Name	Citation	Starting Point	Facts	Comments
Hetherington v Police	[2015] NZHC 1829	18 months	Appeal from DC: H approached a man outside a bank in the early hours of the morning; punched victim to the head once and then several times to the body and head as the victim fell to the ground; victim attempted to defend himself with an empty bottle, but H grabbed it and hit victim twice to the back of the head with it.	Starting point reduced from 2 years 3 months. Band 2 Nuku.
Poi v R	[2015] NZCA 300	3.5 years	Appeal from DC: An argument erupted after a party at Mr Poi's address, Mr Poi's flatmate began the fight. It was not provoked by the victim. Mr Poi joined in. The victim was knocked to the ground. The defendants punched and kicked him repeatedly. They detained him, despite his attempts to escape, to ensure he did not lay a complaint. The punching, kicking and stomping continued. Mr Poi hit the back of the victim's head repeatedly with a bottle. The beating continued after that for another half hour. Once the defendants were satisfied the victim would not call the police, he was made to shower (to wash off the blood). He was then released. He had seven lacerations to his scalp, a fractured rib, a broken tooth and other more minor injuries.	Court of Appeal said this was lower level band 3. Starting Point upheld on appeal.
Wynd v Police	[2013] NZHC 1270	2 Years 9 months	Appeal from DC: The victim had an unremarkable exchange with a female at the bar. Mr Wynd took exception to this exchange and became very angry with the victim. When the victim went outside Mr Wynd, who had been waiting, attacked the victim with a kick to the head that knocked him off his feet. As the victim lay curled up on the ground, he proceeded to punch him	Starting point upheld on appeal. Band 3 Nuku.
Name	Citation	Starting Point	Facts	Comments
			several times about the face and head. He took hold of an empty beer bottle and rubbed it in the victim's face. He suffered severe injuries
Williams v Police	[2017] NZHC 1299	2.5 years (for the wounding charge)	Appeal from DC: Mr Williams rushed at the victim, hitting him in the head with a bottle. This caused significant wounds to the victim's face and neck. The wound was proximate to arteries.	Starting point not challenged on appeal. France J did not consider where the facts fell in the Nuku bands.
Sheppard v R	[2013] NZCA 639	2.5 years	Appeal from DC: Mr Sheppard grabbed the back of the victim's neck, pulled the victim towards him, and at the same time thrust a small screwdriver into the neck of the victim. The victim sustained a small puncture wound to his throat, which was cleaned and dressed by medical staff. Bruising associated with the attack made it difficult for him to eat solids for about a week and the victim was also emotionally harmed by the experience.	Starting point reduced from 3 years on appeal. Band 2 Nuku.
Sadiq v R	[2012] NZCA 396	2 years 9 months	Appeal from DC: in the course of a confrontation instigated by him, S picked up a plank which he brandished in the direction of the opposing group; thinking that the plank would be used against his younger brother, a member of that group ran towards S who dropped the piece of wood, kneed the other person in the chest, then drew a small knife from his pocket and stabbed him three times, in the chest, the upper back and upper arm; stab wounds relatively minor but required several stitches and caused significant blood loss; victim required pain medication for about two weeks and had to take four days off work; suffered no long-term ill effects	Starting point held to be appropriate. (Before Nuku).
Frelih v Police	[2014] NZHC 2217	3 years.	Appeal from DC: the appellant received a massage from the victim who is a	Nuku band 3. Starting point was within the
Name	Citation	Starting Point	Facts	Comments
			masseuse working from her home address. At the completion of the massage, and for seemingly unknown reasons, the appellant pinned the victim to the massage table and stabbed her head six times using a Swiss Army pocket knife. When the victim attempted to stand up to defend herself the appellant pushed her against a wardrobe, breaking the wardrobe door off its hinges. It appears that the attack was halted by the intervention of the victim's partner who was upstairs in the premises when the massage was provided.	available range, but at the top end of the available range.
MacDonald v R	[2011] NZCA 446	2 years 3 months	Appeal from DC: While the victim was bending over to pick up a carton of beer, the defendant struck him several times on the back of the head, using a sock containing heavy objects or a walking stick (disputed at trial). The injuries could fairly be described as moderate.	Reduced from 3 years on Appeal. Before Nuku.