Hall v R [2015] NZCA 249 (16 June 2015)

Last Updated: 25 June 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA557/2014 [2015] NZCA 249
BETWEEN	JORDAN GREGORY HALL Appellant
AND	THE QUEEN Respondent

Hearing:	11 June 2015
Court:	Wild, Venning and Williams JJ
Counsel:	J S Jefferson for Appellant M G Wilkinson for Respondent
Judgment:	16 June 2015 at 2.30 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Venning J)

[1] Following a jury trial in the Gisborne District Court Jordan Hall was convicted on a charge of injuring with intent to injure. Mr Hall had previously pleaded guilty to a separate charge of assault with intent to injure and one of resisting police. Judge Adeane sentenced him to two years and three months’ imprisonment on the charge of injuring with intent to injure and 18 months’ concurrent on the assault with intent to injure charge.^[1] The Judge convicted and discharged Mr Hall on the resisting police charge.
[2] Mr Hall appeals against sentence. He had also appealed against conviction but that has been abandoned.

Background

[3] On the evening of 13 April 2013 Mr Hall and three associates — Mr Sheridan, Mr Andrew Dugdale and Mr Matthew Dugdale — were out and about in Gisborne. The Judge said they “knew very well what the order of business was for that night”.^[2] During the course of the night they assaulted four people between them. The first incident involved a Mr Durrant. He was challenged by Mr Hall’s associates as they drove past him in their vehicle. Mr Durrant was then chased and assaulted. Mr Hall was charged with but acquitted of the assault on Mr Durrant.
[4] After the incident involving the first victim, Mr Hall and his associates then returned to the Smash Palace bar in Bank Street. Mr Hall approached the second victim, Mr MacPherson, while he was talking on his cell phone. Mr Hall asked him if he wanted a “rumble”. Mr MacPherson declined. Mr Hall then walked around the table and punched Mr MacPherson in his face, knocking off his glasses. He then grabbed Mr MacPherson by his shirt, pulling his head down, and began punching him multiple times to his face. Mr Hall was urged on by two of his associates.
[5] Mr Herbert, a bar security staff member, intervened. He grabbed Mr Hall in a headlock and marched him to the front of the bar and pushed him into the garden. While Mr Herbert was doing this, Mr Hall was still holding on to Mr MacPherson, who was dragged out to the front of the bar as well. While trying to evict Mr Hall, Mr Herbert was tackled to the ground by Mr Sheridan.
[6] Mr Hall, Mr Sheridan and Mr Andrew Dugdale then began kicking Mr Herbert about the body and head while he was on the ground. Mr Herbert was knocked out cold and lay prone on the ground. While the attacked continued Ms Pink, who also works at the Smash Palace bar as duty manager, came to the aid of Mr Herbert and asked the attackers to stop. Mr Matthew Dugdale punched her in the side of the head. Mr Hall and his associates eventually left. They were stopped by the police shortly thereafter.
[7] As a result of Mr Hall’s assault Mr MacPherson received a bloody nose, bruising, tenderness and swelling to his head and face. As a result of the attack on him, Mr Herbert received a seven cm long laceration, which had to be stapled together at the Accident and Emergency department at Gisborne Hospital. He suffered dizzy spells and blurred vision. Mr Herbert still suffers from headaches. He previously suffered from post traumatic stress disorder, which was under control until the assault. Following the assault he has begun to suffer from that again. He becomes moody and difficult to deal with.
[8] Mr Hall pleaded guilty to assaulting Mr MacPherson with intent to injure him and was found guilty of injuring Mr Herbert with intent to injure him.

District Court sentence

Mr Hall

[9] Judge Adeane took the injuring with intent to injure charge as the lead offence. He took two years and six months’ imprisonment as the starting point, and reduced that by 10 per cent or three months to take account of Mr Hall’s relative youth (he was 20 years old at time of offending) and remorse.

Co-offenders

[10] Andrew Dugdale pleaded guilty to two counts of injuring with intent to injure and also to a charge of assaulting a police officer. The victims were Mr Durrant and Mr Herbert. Mr Dugdale accepted that he had kicked Mr Herbert twice while he was on the ground. The Judge took a starting point of three years.^[3] Mr Dugdale appealed the sentence to this Court. The appeal was allowed. This Court noted the Judge’s starting point was not challenged but applied a further 10 per cent discount on account of Mr Dugdale’s youth, remorse and restrictive bail conditions.^[4]
[11] Mr Sheridan also pleaded guilty to two charges of injuring with intent to injure. Again the victims were Mr Durrant and Mr Herbert. In Mr Sheridan’s case the Judge took a starting point of four years’ imprisonment to reflect the totality of the offending.^[5]
[12] Matthew Dugdale also pleaded guilty to charges of injuring with intent to injure, injuring with intent to cause grievous bodily harm and male assaults female. The victims were Mr Durrant, Mr Herbert and Ms Pink respectively. In Mr Dugdale’s case the Judge took an overall starting point of five years and eight months’ imprisonment.^[6]

Appeal

[13] Mr Hall submits the sentence imposed on him was manifestly excessive. He challenges the starting point and submits that further credit should have been given for the very restrictive bail conditions to which he was subject, which required him to live outside the Gisborne district and away from his family for over 13 months.

Decision

[14] The starting point for sentence had to reflect the totality of Mr Hall’s offending, including the unprovoked assault on Mr MacPherson, which precipitated the later and more serious assault on Mr Herbert. In the circumstances the starting point of two years and six months’ imprisonment was open to the Judge. Indeed he could have taken a higher starting point.^[7]
[15] In R v Dugdale this Court observed that the starting point of three years in Mr Andrew Dugdale’s case was right at the bottom of the range of sentences for this offending, despite the fact he had not actually physically assaulted Mr Durrant.^[8] Matthew Dugdale accepted responsibility for kicking Mr Herbert’s head. In his case the Judge took four and a half years for the starting point for that offending alone.^[9]
[16] There were a number of aggravating features to the attack on Mr Herbert. There were multiple attackers, of which Mr Hall was one, and multiple kicks to the head. Ms Pink’s evidence clearly identified Mr Hall as being directly involved in the attack, which attack continued while Mr Herbert was lying unconscious on the ground.
[17] The credit of 10 per cent, or three months, for youth and remorse was sufficient. The credit for remorse might perhaps be seen as generous in the circumstances — despite Mr Hall’s letter to the sentencing Judge in which he expressed remorse and acceptance for his actions, he then sought to appeal his conviction, with one ground being a challenge to identification.
[18] We do not consider there needs to be any further reduction for Mr Hall’s bail conditions. He was not subject to electronically monitored bail. He was required to live away from his home area, but he was able to work and to see his partner. He was only subject to an overnight curfew. The Judge was aware of Mr Hall’s bail conditions, as he referred to them during the course of his sentencing.^[10] He was entitled to not make any further reduction for them. We note the 10 per cent credit provided for remorse and youth was the same percentage this Court gave for all three factors of remorse, youth and restrictive bail conditions in the case of Mr Andrew Dugdale.^[11]
[19] There was no error in the Judge’s approach to either the starting point or the discount for mitigating factors. The end sentence of two years and three months’ imprisonment was not, in the circumstances of this offending and this offender, manifestly excessive.

Result

[20] The appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Hall DC Napier CRI-2013-016-884, 5 September 2014.

^[2] At [7].

^[3] R v Dugdale DC Gisborne CRI-2013-016-884, 19 February 2014.

^[4] Dugdale v R [2014] NZCA 248.

^[5] R v Sheridan DC Gisborne CRI-2013-016-884, 7 November 2013.

^[6] R v Dugdale DC Napier CRI-2013-016-884, 22 November 2013.

^[7] See Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39; and R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA).

^[8] R v Andrew Dugdale, above n 4, at [27].

^[9] R v Dugdale, above n 6, at [15].

^[10] R v Hall, above n 1, at [4].

^[11] Dugdale v R, above n 4.