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The Queen v Hayes [2006] NZCA 171 (20 July 2006)

Last Updated: 26 July 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA171/06

THE QUEEN

v

DANE HAYES

Hearing: 17 July 2006

Court: Glazebrook, Chisholm and Wild JJ

Counsel: J C Gwilliam and F C Butland for Appellant
S B Edwards for Respondent

Judgment: 20 July 2006

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Chisholm J)

[1] Following trial in the District Court the appellant was found guilty by a jury on a charge of kidnapping and not guilty on a related charge of threatening to kill. Before trial he had pleaded guilty to a charge of male assaults female arising out of the same events. After the jury had returned its verdicts the appellant also pleaded guilty to unrelated charges of driving whilst his licence was suspended, unlawfully getting into a motor vehicle, attempting to pervert the course of justice, assault, intentional damage, and failing to answer District Court bail.
[2] On the charge of kidnapping the appellant was sentenced by Judge Kelly to imprisonment for two and a half years with a concurrent sentence of 18 months imprisonment for male assaults female. A cumulative sentence of six months imprisonment was imposed on the charge of attempting to pervert the course of justice with concurrent sentences of one months imprisonment for unlawfully getting into a motor vehicle and for assault. On the other charges the appellant was convicted and discharged. This is an appeal against the total sentence of three years imprisonment.

The Offending

[3] At the time of the male assaults female and kidnapping the appellant and victim, aged 18 and 17 years respectively, had been in a relationship for approximately two years. During the evening of 12 April 2005 an argument developed about the ending of their relationship. When the victim told the appellant that she did not want to go out with him anymore he placed his hands around her neck and began to strangle her. After about ten seconds he threw her to the floor and when she stood up he head-butted her, causing her to fall again following which he kicked her leg.
[4] The appellant then forced the victim into his car and prevented her from escaping. While they were driving along he punched her on the side of the head and later dragged her back into the car by her hair when she again tried to escape. Eventually the appellant stopped the car in a rural area, went around to the back of the car and opened the boot. Because the victim had earlier been told by the appellant that there was a gun in the boot (in fact there was no gun), she slammed the boot closed and when he was in the process of opening it again she managed to escape into the darkness and obtain help.
[5] These events occupied around three hours from approximately 6pm to about 9pm. Apart from mental trauma, the victim suffered cuts and bruises.
[6] On 9 June 2005 the appellant’s licence was suspended for three months as a result of the demerit points system. When he was stopped for speeding on 23 June 2005 the appellant initially gave false details about his identity. His explanation for the offending was that he was unaware of the suspension.
[7] The charges of unlawfully getting into a motor vehicle and perverting the course of justice arose when the police pursued a stolen vehicle in which the appellant was a passenger on 8 September 2005. Eventually the chase was abandoned, the car was dumped and the occupants made off on foot. When he was located a short time later the appellant gave a false name and address.
[8] Finally, the charges of intentional damage and assault arose on 29 October 2005 while the appellant was in custody. He wrote graffiti on a cell wall and later punched a prison officer in the face at least twice during a cigarette break. Other remand prisoners were present at the time.
[9] The appellant is 19 years of age. He has previous convictions for common assault, possession of an offensive weapon and wilful damage, all in 2004. A letter from his mother indicated that the appellant was diagnosed with attention deficit disorder and oppositional defiance disorder when he was aged 13 years. She said that for the first time the appellant was acknowledging his anger problem and displaying a willingness to help himself. Although this was endorsed by the probation officer, it was reported that a relatively high risk of re-offending would remain until the appellant addressed his anger issues.

Sentencing in the District Court

[10] Judge Kelly noted that there had been no previous offending by the appellant against the victim and that no protection order was in place. After traversing the facts relating to the various offences the Judge discussed the impact of the male assaults female and kidnapping on the victim following which she considered the appellant’s longstanding history of behavioural and anger management issues, including his recognition that he had a problem. She also noted that family support was available.
[11] As the Judge saw it the purpose of sentencing in this case was to hold the appellant accountable for the harm inflicted on the victim, to promote a sense of responsibility, to denounce the appellant’s conduct and to deter others. A number of authorities cited by counsel were then considered by the Judge.
[12] Several aggravating factors were identified by Judge Kelly: actual and threatened violence at the high end of the scale of seriousness for a charge of male assaults female; a number of the offences were committed while the appellant was on bail and subject to a suspended sentence; extent of the harm to the victim; and previous convictions. Taking these factors into account the Judge considered that the appropriate starting point was three years nine months imprisonment, being three years for the kidnapping/male assaults female and nine months for the other offending.
[13] Mitigating factors were then assessed. The Judge took into account that at the time of his offending the appellant was 18 years of age, that with the exception of the kidnapping charge he had entered guilty pleas and that he had expressed remorse to the victim. After allowing a discount of nine months for mitigating factors the Judge arrived at the individual sentences totalling three years imprisonment described in [2].

This Appeal

[14] Mr Gwilliam submitted that insufficient credit had been given for the appellant’s age, his early guilty pleas, his remorse and his co-operation with the police. He also submitted that the Judge had failed to give proper weight to the prospects of rehabilitation and reintegration and suggested that in all the circumstances an overall sentence of not more than two years imprisonment would have been appropriate, with leave to apply for home detention.
[15] The second ground of appeal was based on an alleged failure to have regard to the purposes and principles of sentencing and the giving of undue weight to aggravating factors. Reference was made to the fact that the Judge had not specifically mentioned s 8 of the Sentencing Act 2002. In broad terms counsel argued that the Judge had given undue weight to aggravating factors, some of which should have been regarded as neutral, and insufficient weight to the appellant’s age and prospects of rehabilitation.
[16] It was then submitted by Mr Gwilliam that the sentence was manifestly excessive having regard to the overall gravity of the offending. He noted the absence of: previous convictions for offending against the same victim; premeditation or planning; use of weapons; and any sexual or financial motive. He also submitted that the Judge had erred in principle by taking into account aggravating features personal to the appellant before arriving at his starting point and that this error had carried through to the sentence imposed. In Mr Gwilliam’s submission the end result was a "crushing sentence", particularly having regard to the appellant’s age and circumstances.
[17] It was submitted that the sentence was inconsistent with the authorities. This submission was based on the following decisions of this Court: R v Hutcheson CA377/94 23 February 1995; Solicitor-General v Green CA179/99 29 July 1999; R v Mako [2000] 2 NZLR 170; R v Gurnick [2002] NZCA 249; (2002) 19 CRNZ 627; R v Wharton [2003] NZCA 63; (2003) 20 CRNZ 109; and R v Reihana-Ruka CA449/02 5 June 2003. Reference was also made to two decisions of the High Court: R v WN HC DUN T4756/04 5 November 2004; and Griffin v New Zealand Police HC WHA CRI 2005-488-009 & 11 14 April 2005.
[18] Finally, Mr Gwilliam claimed that when summarising the facts Judge Kelly had wrongly used the summary of facts rather than the evidence actually given at trial when she said:

You stopped the car, got out of the car and told the victim you had a gun in the boot. The victim got out of the car, and as you went around to the boot she escaped.

It is not disputed by the Crown that the victim’s account at trial differed from the summary of facts to the extent that she said at trial that she had been told earlier by the appellant that there was a gun in the boot. Mr Gwilliam also argued that the information about the firearm should not have been taken into account because the jury’s verdict of not guilty on the threatening to kill charge meant that the jury must have rejected that evidence.

Discussion

[19] For sentencing purposes Judge Kelly adopted the kidnapping offence as the lead offence for events on 12 April 2005 and the attempting to pervert the course of justice offence as the lead offence in relation to the other offending. As this Court observed in R v Wharton:

[14] It has been long established that the Court may take into account facts and circumstances, which might of themselves constitute separate offences, in order to determine the gravity and appropriate punishment for an offence for which an accused is charged and convicted; Lane v Auckland CC [1975] 1 NZLR 353 (CA). The principle was recently emphasised by this Court in R v Pattison [2002] NZCA 152; (2002) 19 CRNZ 407, that even though factors of aggravation may constitute separate offences it does not mean that they cannot be considered as part of the sentencing exercise.
[15] In terms of s 85 of the Sentencing Act 2002 the Court was required to consider the totality of the offending, and whilst the most serious offence might normally be that which carries the greatest maximum penalty it may, however, be only becoming a more serious offence through the totality of circumstances surrounding it which, as in the case here, involved the commission of the so-called lesser offence of assault with intent to injure.

[20] Having presided over the trial the Judge was, of course, well placed to assess the overall gravity of the offending on 12 April 2005 which was, of course, the most serious component of the offending for which he was to be sentenced.
[21] The Judge considered that the actual and threatened violence upon the victim was at the high end of the scale of seriousness for a charge of male assaults female. We agree. We also accept that in all the circumstances the starting point of three years imprisonment for the kidnapping and male assaults female charges was well within the range available to the Judge. Although the Judge’s comment about the gun in the boot was not entirely accurate, we do not accept that this alters the overall criminality of the appellant’s conduct on 12 April 2005. Regardless of the precise point in time at which the appellant made reference to a gun, it was inevitable that reference to a gun would increase the victim’s terror. We also reject the proposition that this information should not have been taken into account by the Judge. In our view it does not inevitably follow from the jury’s verdict that it did not accept this evidence.
[22] Judge Kelly proceeded on the basis that the offending unrelated to events on 12 April 2005 should be treated separately and that a cumulative sentence was justified. Given the separation in time and the different nature of the other offending we accept that this was appropriate. We also accept that the starting point of nine months for the other offending was within the range available to the Judge. In particular, the Judge was entitled to take the view that the offences of attempting to pervert the course of justice and assault upon a prison officer in the presence of other prisoners warranted a stern response.
[23] While we accept Mr Gwilliam’s point that the approach adopted by the Judge on this occasion (taking into account aggravating factors personal to the particular offender before arriving at a starting point) was not in accord with R v Taueki [2005] 3 NZLR 372 at [8], we do not believe that this has led to a sentence that is manifestly excessive. We should also add that in our view the Judge properly took into account the aggravating factors identified by her which, of course, added to the overall seriousness of the offending.
[24] Having arrived at an overall starting point of three years and nine months the Judge allowed a 20% reduction of nine months for mitigating factors. In our view that reduction was appropriate. The appellant was not entitled to any credit for a guilty plea in relation to the kidnapping and although he had indicated in November 2004 that he would plead guilty to the male assaults female, any credit for that early indication was nullified when he failed to answer bail. As it was he only entered his plea shortly before trial. He was, of course, entitled to some credit for the guilty plea and to credit for the other guilty pleas. We are satisfied that the Judge took these matters into account.
[25] We do not accept that the Judge failed to take into account any relevant provisions of the Sentencing Act or the appellant’s age and rehabilitative prospects. Despite his age the appellant subjected his victim to a prolonged episode of violence and terror. To make matters worse, he was also involved in a spate of unrelated offending, some of which arose while he was on bail and subject to a suspended sentence. It is clear from the sentencing remarks that the Judge carefully weighed these factors when arriving at the sentence.
[26] Stepping back and viewing the matter on a totality basis we do not consider that the sentence is manifestly excessive. Nor is it out of step with the authorities cited to us.

Outcome

[27] The appeal is dismissed.

Solicitors:
John Gwilliam & Co, Upper Hutt
Crown Law Office, Wellington

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[3]	At the time of the male assaults female and kidnapping the appellant and victim, aged 18 and 17 years respectively, had been in a relationship for approximately two years. During the evening of 12 April 2005 an argument developed about the ending of their relationship. When the victim told the appellant that she did not want to go out with him anymore he placed his hands around her neck and began to strangle her. After about ten seconds he threw her to the floor and when she stood up he head-butted her, causing her to fall again following which he kicked her leg.
[4]	The appellant then forced the victim into his car and prevented her from escaping. While they were driving along he punched her on the side of the head and later dragged her back into the car by her hair when she again tried to escape. Eventually the appellant stopped the car in a rural area, went around to the back of the car and opened the boot. Because the victim had earlier been told by the appellant that there was a gun in the boot (in fact there was no gun), she slammed the boot closed and when he was in the process of opening it again she managed to escape into the darkness and obtain help.
[5]	These events occupied around three hours from approximately 6pm to about 9pm. Apart from mental trauma, the victim suffered cuts and bruises.
[6]	On 9 June 2005 the appellant’s licence was suspended for three months as a result of the demerit points system. When he was stopped for speeding on 23 June 2005 the appellant initially gave false details about his identity. His explanation for the offending was that he was unaware of the suspension.
[7]	The charges of unlawfully getting into a motor vehicle and perverting the course of justice arose when the police pursued a stolen vehicle in which the appellant was a passenger on 8 September 2005. Eventually the chase was abandoned, the car was dumped and the occupants made off on foot. When he was located a short time later the appellant gave a false name and address.
[8]	Finally, the charges of intentional damage and assault arose on 29 October 2005 while the appellant was in custody. He wrote graffiti on a cell wall and later punched a prison officer in the face at least twice during a cigarette break. Other remand prisoners were present at the time.
[9]	The appellant is 19 years of age. He has previous convictions for common assault, possession of an offensive weapon and wilful damage, all in 2004. A letter from his mother indicated that the appellant was diagnosed with attention deficit disorder and oppositional defiance disorder when he was aged 13 years. She said that for the first time the appellant was acknowledging his anger problem and displaying a willingness to help himself. Although this was endorsed by the probation officer, it was reported that a relatively high risk of re-offending would remain until the appellant addressed his anger issues.

[10]	Judge Kelly noted that there had been no previous offending by the appellant against the victim and that no protection order was in place. After traversing the facts relating to the various offences the Judge discussed the impact of the male assaults female and kidnapping on the victim following which she considered the appellant’s longstanding history of behavioural and anger management issues, including his recognition that he had a problem. She also noted that family support was available.
[11]	As the Judge saw it the purpose of sentencing in this case was to hold the appellant accountable for the harm inflicted on the victim, to promote a sense of responsibility, to denounce the appellant’s conduct and to deter others. A number of authorities cited by counsel were then considered by the Judge.
[12]	Several aggravating factors were identified by Judge Kelly: actual and threatened violence at the high end of the scale of seriousness for a charge of male assaults female; a number of the offences were committed while the appellant was on bail and subject to a suspended sentence; extent of the harm to the victim; and previous convictions. Taking these factors into account the Judge considered that the appropriate starting point was three years nine months imprisonment, being three years for the kidnapping/male assaults female and nine months for the other offending.
[13]	Mitigating factors were then assessed. The Judge took into account that at the time of his offending the appellant was 18 years of age, that with the exception of the kidnapping charge he had entered guilty pleas and that he had expressed remorse to the victim. After allowing a discount of nine months for mitigating factors the Judge arrived at the individual sentences totalling three years imprisonment described in [2].

[14]	Mr Gwilliam submitted that insufficient credit had been given for the appellant’s age, his early guilty pleas, his remorse and his co-operation with the police. He also submitted that the Judge had failed to give proper weight to the prospects of rehabilitation and reintegration and suggested that in all the circumstances an overall sentence of not more than two years imprisonment would have been appropriate, with leave to apply for home detention.
[15]	The second ground of appeal was based on an alleged failure to have regard to the purposes and principles of sentencing and the giving of undue weight to aggravating factors. Reference was made to the fact that the Judge had not specifically mentioned s 8 of the Sentencing Act 2002. In broad terms counsel argued that the Judge had given undue weight to aggravating factors, some of which should have been regarded as neutral, and insufficient weight to the appellant’s age and prospects of rehabilitation.
[16]	It was then submitted by Mr Gwilliam that the sentence was manifestly excessive having regard to the overall gravity of the offending. He noted the absence of: previous convictions for offending against the same victim; premeditation or planning; use of weapons; and any sexual or financial motive. He also submitted that the Judge had erred in principle by taking into account aggravating features personal to the appellant before arriving at his starting point and that this error had carried through to the sentence imposed. In Mr Gwilliam’s submission the end result was a "crushing sentence", particularly having regard to the appellant’s age and circumstances.
[17]	It was submitted that the sentence was inconsistent with the authorities. This submission was based on the following decisions of this Court: R v Hutcheson CA377/94 23 February 1995; Solicitor-General v Green CA179/99 29 July 1999; R v Mako [2000] 2 NZLR 170; R v Gurnick [2002] NZCA 249; (2002) 19 CRNZ 627; R v Wharton [2003] NZCA 63; (2003) 20 CRNZ 109; and R v Reihana-Ruka CA449/02 5 June 2003. Reference was also made to two decisions of the High Court: R v WN HC DUN T4756/04 5 November 2004; and Griffin v New Zealand Police HC WHA CRI 2005-488-009 & 11 14 April 2005.
[18]	Finally, Mr Gwilliam claimed that when summarising the facts Judge Kelly had wrongly used the summary of facts rather than the evidence actually given at trial when she said:

[20]	Having presided over the trial the Judge was, of course, well placed to assess the overall gravity of the offending on 12 April 2005 which was, of course, the most serious component of the offending for which he was to be sentenced.
[21]	The Judge considered that the actual and threatened violence upon the victim was at the high end of the scale of seriousness for a charge of male assaults female. We agree. We also accept that in all the circumstances the starting point of three years imprisonment for the kidnapping and male assaults female charges was well within the range available to the Judge. Although the Judge’s comment about the gun in the boot was not entirely accurate, we do not accept that this alters the overall criminality of the appellant’s conduct on 12 April 2005. Regardless of the precise point in time at which the appellant made reference to a gun, it was inevitable that reference to a gun would increase the victim’s terror. We also reject the proposition that this information should not have been taken into account by the Judge. In our view it does not inevitably follow from the jury’s verdict that it did not accept this evidence.
[22]	Judge Kelly proceeded on the basis that the offending unrelated to events on 12 April 2005 should be treated separately and that a cumulative sentence was justified. Given the separation in time and the different nature of the other offending we accept that this was appropriate. We also accept that the starting point of nine months for the other offending was within the range available to the Judge. In particular, the Judge was entitled to take the view that the offences of attempting to pervert the course of justice and assault upon a prison officer in the presence of other prisoners warranted a stern response.
[23]	While we accept Mr Gwilliam’s point that the approach adopted by the Judge on this occasion (taking into account aggravating factors personal to the particular offender before arriving at a starting point) was not in accord with R v Taueki [2005] 3 NZLR 372 at [8], we do not believe that this has led to a sentence that is manifestly excessive. We should also add that in our view the Judge properly took into account the aggravating factors identified by her which, of course, added to the overall seriousness of the offending.
[24]	Having arrived at an overall starting point of three years and nine months the Judge allowed a 20% reduction of nine months for mitigating factors. In our view that reduction was appropriate. The appellant was not entitled to any credit for a guilty plea in relation to the kidnapping and although he had indicated in November 2004 that he would plead guilty to the male assaults female, any credit for that early indication was nullified when he failed to answer bail. As it was he only entered his plea shortly before trial. He was, of course, entitled to some credit for the guilty plea and to credit for the other guilty pleas. We are satisfied that the Judge took these matters into account.
[25]	We do not accept that the Judge failed to take into account any relevant provisions of the Sentencing Act or the appellant’s age and rehabilitative prospects. Despite his age the appellant subjected his victim to a prolonged episode of violence and terror. To make matters worse, he was also involved in a spate of unrelated offending, some of which arose while he was on bail and subject to a suspended sentence. It is clear from the sentencing remarks that the Judge carefully weighed these factors when arriving at the sentence.
[26]	Stepping back and viewing the matter on a totality basis we do not consider that the sentence is manifestly excessive. Nor is it out of step with the authorities cited to us.