R v Hura [2017] NZDC 3206 (17 February 2017)

Last Updated: 27 April 2017

_{EDITORIAL NOTE: NO SUPRESSION APPLIED.}

IN THE DISTRICT COURT AT HAMILTON

CRI-2015-073-000327 [2017] NZDC 3206

THE QUEEN

v

_{BENJAMIN FRANK HURA}

Hearing:	17 February 2017
Appearances:	C Ura for the Crown R Barnsdale for the Defendant
Judgment:	17 February 2017

_{NOTES OF JUDGE M L S F BURNETT ON SENTENCING}

[1] Mr Hura, you are 21 years of age, not turning 22 until 16 May. You appear for sentence, having been found guilty following a jury trial of one charge of wounding with intent to cause grievous bodily harm. You committed this offence on

14 June 2015.

[2] The verdict was delivered at trial on 17 November 2016 and you were given your first strike warning as a consequence. The maximum penalty for your offending is 14 years’ imprisonment and the pre-sentence report sets out a number of personal circumstances and I will refer to that.

[3] The circumstances of the offending were well traversed at trial. You and the victim, considerably older than yourself, were not known to each other at the time of the offending. You both lived, as I understand it, in Te Kuiti. The victim was

_{visually impaired and as a result he was accompanied to various places with an}

R v BENJAMIN FRANK HURA [2017] NZDC 3206 [17 February 2017]

associate. In the early evening of 14 June the victim and his associate were walking up Rora Street. They had been socialising at a friend’s address, they had consumed alcohol and were simply walking home. You were on your bicycle in Rora Street at that time and there was some verbal exchange and there was a comment about your bicycle. It seemed that you were cycling close to or around the victim and he made a comment about your bicycle. Nothing came of that and the victim continued to walk along the roadside, across a car parking area adjacent to the road. His friend was slightly ahead of him so that the victim knew where he was going, being partially sighted. You were angry and it seems that you thought to make a point, whether that was because you had your mates around you or quite what, or maybe that is simply just part of your culture. In any event you crossed the road and you punched him, causing him to fall to the ground. He was completely defenceless and lying prone on the road surface. You then proceeded to stomp on his head about five to seven times as well as punching him whilst he lay on the ground.

[4] The purposes and principles of sentencing in ss 7 and 8 Sentencing Act 2002 are highlighted in the Crown’s written submissions and it is accepted that this offending falls within band 2 of Taueki1 which is the guiding decision for this kind of offending.

[5] Looking at the aggravating factors, the victim was clearly a vulnerable victim. He appeared older than his years, he was partially sighted, and apart from being a bit garrulous, he was otherwise plainly harmless and probably quite unsteady on his feet. You attacked his head and then continued to attack his head when he was defenceless, unconscious on the ground. I do accept that you displayed extreme violence from the evidence, given the complete incapacity of the victim. The lacerations caused by you split his scalp and face open from the force of the stomps. He also sustained of course serious injury and that included the broken nose and extreme loss of blood, unconsciousness, loss of memory and a brain bleed. I have

_{already referred to the serious laceration to his face. Those are aggravating features.}

1 R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA)

[6] On your behalf, Mr Barnsdale cautions against double counting and submits that a term of imprisonment is at the lower end of the Crown starting point. I have outlined the aggravating features.

[7] To assist the Court in identifying the starting points a number of authorities are referred to and I need to refer to those as well. There is Haimona v R 2, King 3, Goulton4, and Skilling5. Mr Barnsdale, on your behalf, also has referred to those decisions.

[8] Mr Barnsdale submits some distinguishing additional features in the case relied on by the Crown and says that the Crown, by relying on those authorities, is seeking a starting point that is higher than is warranted and seeks as I say a lower starting point.

[9] The pre-sentence report assesses you as being at a medium risk of re-offending, given that you have what is regarded as quite a significant history as a young adult and the frequency at which you offended. You are assessed at being at a medium risk of harm, given that this is your first violence conviction, but that it was of a serious nature and demonstrates an escalation in offending.

[10] You were subject to a sentence of supervision at the time of the offending which sentence you completed and you then went on to have a sentence of home detention and community work for a further driving matter. You had not completed that at the time you were remanded in custody following the verdict on the jury trial. I am asked to cancel those sentences, which I do.

[11] Your membership of the Bloods gang is referred to and the entrenched ideology that, whilst you have support within the community, the antisocial attitude and entrenched ideology of the gang, which is a local faction of the Mongrel Mob

_{and often recruits new members from the Bloods gang.}

2 _{[2011] NZCA 375}

3 _{King v R [2015] NZCA 436}

4 _{Goulton v R [2014] NZCA 488}

5 Skilling v R [2011] NZCA 463

[12] As to your compliance on your sentence, that was regarded as minimal and that your behaviour on the programme was due partially to your age and also to your attitude towards your offending and community-based sentences, and that changes in you are yet to be evidenced in a realistic way.

[13] I have the letter that you have written to the victim and I do not know whether it is written in your hand, it may well not be written in your hand, but it does use words like “for inappropriate and disrespectful action”. Could I say that your actions were violent, brutal and gratuitous. You have also talked about your insensitive and careless actions. They were not careless, they were deliberate. You refer to your anger issues, yes I am sure you have anger issues. There were also displays of violence, which are part of gang culture, and so long as you are associated with a gang, that is part of gang culture and is always something that you will have to deal with.

[14] The Crown submits a starting point of seven and a half to eight years and although you have previously appeared, there is no offending warranting an uplift, which I agree with. You were on a sentence of supervision at the time of this offending but it does not warrant an uplift. There are no mitigating features relevant to the offending. There is no discount, as the conviction followed trial. You are 21 years of age, going on 22. I agree that the offending was in 2015, but your age is such that it does not attract the kind of discount that Mr Barnsdale seeks on your behalf. I do accept that a starting point of between seven and a seven and a half years, which does take into account your relative youth. It is only relative though and I settle on an end sentence of seven years and two months.

[15] I record, before you stood down Mr Hura, that the man I take to be your father (which you acknowledge) and who is in full red gear, has banged his way out of the Court using the “F” word liberally. That is unfortunately the legacy that you have been brought up with, and whilst you associate with gangs then that is the culture of violence that will always shadow you throughout your life and is likely to bring you back in to Court.

[16] I record also – is that your mother? [Sorry Your Honour, yes]. Yes, so she has just called me a bitch [Sorry Your Honour]. That is, unfortunately, the legacy of your upbringing. We are all the people that we are brought up to be and that unfortunately is your legacy. So quite frankly my heart goes out to you. It is only you that can change it because your parents are not able to bring you up with prosocial views.

[17] I am afraid there is nothing further that I can add and you are able to stand down.

M L S F Burnett

District Court Judge