THE QUEEN v MICHAEL JOHN HETHERINGTON [2001] NZCA 262 (27 September 2001)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca227/01

THE QUEEN

V

MICHAEL JOHN HETHERINGTON

Hearing:	26 September 2001
Coram:	Gault J Keith J Salmon J
Appearances:	P Mabey QC for the Appellant M R Heron for the Crown
Judgment:	27 September 2001

judgment of the court DELIVERED BY KEITH J

[1] The appellant was convicted, after pleading guilty, on charges of kidnapping, threatening to kill, unlawful taking of a motor vehicle, commission of a crime with a firearm, and unlawful possession of a sawn-off double-barrel shotgun. He was sentenced to concurrent sentences of six years imprisonment for kidnapping and committing a crime with a firearm, three years for threatening to kill and one year for the other two offences.He appeals against the sentences.

[2] The appellant called an escort agency and ordered the services of an escort.The victim was the escort who accepted the job to visit the appellant at his home, an isolated rural address.After the victim's visit was complete she went to leave the premises in her car.As she began to drive off the appellant signalled for her to stop.She rolled down the passenger's window at which point he produced a sawn-off double-barrel 12-gauge shotgun and pointed it directly at her head through the open window.The appellant told her to get out of the car and, after the victim argued, repeated his demand.She got out of the vehicle and went back into the house with him where he seated her on a couch and continued to point the gun at her head.She begged him not to hurt her.During this time he broke open the gun and showed her that it was loaded.

[3] The appellant then forced the victim back outside into the car and instructed her to drive while he jabbed the shotgun in her ribs.As they drove along he was drinking beer and continued to hold the shotgun towards her chest. He forced her to drive north until the car was nearly empty of fuel at which point he directed her to stop at a 24-hour service station.There he told her not to attract attention or he would shoot the service station attendant. While the appellant was opening the petrol cap the victim ran from the vehicle and begged the attendant to let her in the locked front door.According to the victim, the appellant made several threats to kill at that stage and earlier. He was finally disturbed by a third person and that led him to drive off alone. He eventually abandoned the car, hitchhiked some distance and was picked up by a family member and taken to an Auckland address where the Armed Offenders Squad located him.

[4] In respect of the principal sentences of kidnapping and commission of a crime with a firearm, the Judge referred to the aggravating factors as being to a degree inherent in the offences themselves.In this case there was the prolonged and terrifying ordeal for the victim and the ongoing effect on her, the inherent violence and potential violence of the offences, the continued confinement for half an hour, the continued presentation of a loaded firearm and the continual threats to kill.The mitigating factors to be taken into account were the early guilty plea, the appellant's genuine remorse, his empathy for the victim, an absence of relevant prior convictions and to some extent his personal circumstances as set out in a report prepared by a clinical psychologist.

[5] Having mentioned R v Baynes-Carter (CA60/98, judgment of 8 May 1998) where this Court upheld a six year sentence for a similar range of offences, the Judge took six years imprisonment as the starting point.But, he continued, weight should be given to aggravating factors.He added two years on that account referring to the prolonged nature of the terror, the serious lasting effects for the victim and the need for deterrence.He then gave a two year discount to reflect the mitigating factors.That led to the concurrent sentences of six years imprisonment on each of the principal charges.

[6] Mr Mabey QC, for the appellant, submitted that in all the circumstances the sentence was too long.While accepting the six year starting point adopted by the Judge, Mr Mabey contended that that starting point should have included the aggravating features of the offending.Next, he submitted that insufficient credit was given to the appellant's personal circumstances, which included a depressive illness and mild brain damage.In support of the latter submission Mr Mabey cited the recent case of R v Dick (CA 177/01, 18 July 2001). He suggested that four years imprisonment was a more appropriate sentence for the appellant.

[7] For the Crown, Mr Heron supported the Judge's approach and the sentence by reference to the overall seriousness of the offending.The effect on the victim was extreme and there was the particular element of danger to the public at the service station.He submitted that an allowance of two years was a reasonable allowance for the mitigating features of the case given that the appellant had little option but to enter a guilty plea.So far as the appellant's illness was concerned, he stressed that no discernible link between it and the offending was established.

[8] We consider that there is force in Mr Mabey's submission about the starting point.The sentencing notes suggest elements of double counting of the aggravating features.The offences of kidnapping, committing an offence with a firearm and threatening to kill will generally have inherent in them the particular aggravating factors weighed by the Judge (para [5] above), as indeed he accepted (para [4] above).There is also some, if limited, force in the submission that, given the appellant's illness, general deterrence should play a lesser role in a case such as this, as indicated in R v Tsiaras [1996] 1 VR 398, 400, quoted in R v Dick.The strength of that argument does depend however on the nature and extent of that illness.But it does assist the appellant here in the contention either that the starting point was adjusted to a level that was too high seemingly by reference to factors already taken into account or (the preferable position) that the mitigating factors should have had greater proportionate weight.

[9] We now turn to those mitigating factors.As the sentencing Judge said the guilty pleas assist, but detention was probably inevitable given that the appellant had contacted the victim by telephone and she had gone to his address.The report by the clinical psychologist concludes with this summary comment:

This strikes me as a sad case where an individual has suffered an untreated depressive disorder for a significant period, which in combination with his alcohol-abuse and previous head-injury (carbon monoxide poisoning), has resulted in him feeling increasingly distressed over time.Mr Hetherington is not skilled in communicating to others regarding his emotional stage and tends to internalise his feelings.On this occasion, it would seem that his "bottling-up" of his feelings reached explosive proportions.His past efforts to communicate his depression through a serious suicide attempt, remained largely unattended and surprisingly, he has never been referred for treatment.

Mr Hetherington demonstrates a genuine sense of sorrow and remorse for his actions.He has an active conscience and an empathic attitude.He most likely will learn from his experience and will benefit from psychological interventions that are proffered to him.I am of the opinion that Mr Hetherington requires anti-depressant medication and that his suicide-risk is moderate until such treatment is initiated or during the initial period of any incarceration.

[10] The submission based on this report cannot be made as strongly as it was in the Dick case, but it does provide reason for a somewhat greater discount than the more or less inevitable guilty plea alone would justify.

[11] We conclude that the appropriate starting point, taking into account the particular aggravating features of this offending (especially the serious impact on the victim), could well have been seven years.For the reasons indicated there should have been a greater proportionate deduction for the mitigating factors.We consider that the appropriate sentence for the major offences is five years rather than six.There is no reason to alter the other sentences.

[12] The appeal is accordingly allowed and the concurrent sentences of six years imprisonment for the offences of kidnapping and committing a crime with a firearm are quashed and replaced by concurrent sentences of five years.The other sentences remain unchanged.

Solicitors

John Smith, Tauranga for the Appellant

Crown Solicitor, Auckland.