Police v Hart [2020] NZDC 13455 (13 July 2020)

Last Updated: 30 December 2024

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS]

IN THE DISTRICT COURT AT PORIRUA I TE KŌTI-Ā-ROHE KI PORIRUA

CRI-2019-083-001040

[2020] NZDC 13455

NEW ZEALAND POLICE

Prosecutor v

JAYDEN KOHERE HART Defendant

Hearing:	13 July 2020
Appearances:	Sergeant K Vaughan for the Prosecutor S Pettett on behalf of S Thistoll for the Defendant
Judgment:	13 July 2020

NOTES OF JUDGE J M KELLY ON SENTENCING

[1] Jayden Hart, you appear for sentencing in respect of the following charges found proved beyond reasonable doubt at a Judge-alone trial:

• (a) Impeding breathing, or strangulation, pursuant to s 189A(b) Crimes Act 1961, which carries a maximum penalty of seven years’ imprisonment;
  
• (b) Assault on a person in a family relationship pursuant to s 194A Crimes Act 1961, which carries a maximum penalty of two years’ imprisonment;
  

NEW ZEALAND POLICE v JAYDEN KOHERE HART [2020] NZDC 13455 [13 July 2020]

(c) Breach of protection order pursuant to s 19(1)(a) and ss 49(1)(b) and 49(3) Domestic Violence Act 1995, which carries a maximum penalty of three years’ imprisonment;

(d) Causing harm by posting digital communications pursuant to s 22 Harmful Digital Communications Act 2015, which carries a maximum penalty of two years’ imprisonment; and

(e) Threatening to kill pursuant to s 306 Crimes Act 1961, which carries a maximum penalty of seven years’ imprisonment.

[2] You also appear for sentencing having pleaded guilty to one charge of unlawful taking pursuant to s 226(1) Crimes Act 1961, which carries a maximum penalty of seven years’ imprisonment.

[3] I sentence having regard to the facts in relation to the family violence charges, which are set out in my decision dated 21 January 2020.

[4] At the Judge-alone trial, the complainant gave evidence that she had previously been in a relationship with you for some time after her son was born in September 2015. She obtained a protection order from the Family Court in May 2017.

[5] In June 2019, you were living at Moana Lodge in Plimmerton. You visited the complainant from time to time and then you stayed with her. At the time, her brother-in-law was living with her as a boarder.

[6] The complainant gave evidence that you strangled her in the kitchen. She says you had your hand on her throat, and she was struggling to breathe. You were saying that you did not care if she died. She said she fell to the ground, and it was “all white.” She said she could not see anything.

[7] She says her brother-in-law came into the kitchen and intervened by taking her baby into the lounge.

[8] She said you started up on her again, choking her, whacking her on the arms, shoulder, and face.

[9] The complainant says another day, when she was sitting on the couch, you rushed at her, held her down with one hand on the collarbone, and punched her on the side of her head. She said she ended up with a lump and a black eye. She said she did not know how many times you punched her.

[10] The complainant says on another day, you went crazy over an argument about food. She says you grabbed a knife out of the drawer and were sharpening it and saying, “This knife is going to get blood on it today, and it’s going to be your blood.”

[11] The complainant said she managed to get out of the house by saying she was going to the dairy. She took her son, and when she got around the corner, she saw a neighbour, ran to her, and the neighbour rang the police.

[12] In relation to the harmful digital communications charge, the complainant said she is on Facebook and so are you. Between 29 July and 1 August 2019, you posted various messages on Facebook. Extracts of those messages read as follows:

• (a) “[The victim] snitched to the pigs. [Address deleted], Porirua. A snitch will catch nothing but a full clip.”
  
• (b) “[The victim] is a framing narking cunt, doesn’t like to see me smiling, just wants to take away my happiness. You’re a snitch, bitch, and you know what happens to snitches. Right.”
  
• (c) “Cos I left her she’s vindictive, she was toxic for me so I left her and she’s trying to take away my happiness. I could be going away for a few years for the bullshit she’s talking. She needs to be put in her proper place.”
  
• (d) “[Victim’s name deleted] yeah you cunt, what the fuck have you told the pigs. Just like you to not want me to have a smile on my face, aye, anything to see me locked up around you, stupid bitch, karma’s a bitch, right, fuck you [name deleted], you’re a piece of work. Hate you.”

[13] Essentially, at the Judge-alone trial, I accepted the evidence of the complainant as credible and reliable. I found her evidence was supported by the photographs that were produced, which showed significant injuries to the complainant’s face, neck, arm and chest. Her evidence was also supported by the Facebook posts that were produced that you accepted you had posted. Her evidence was also supported by the police officer who attended the family violence incident.

[14] The facts in relation to the unlawful taking charge are that on Wednesday, 17 April, around 3.00 pm, the victim parked his bicycle valued at $4,500 at the Wellington railway station. You broke the bike lock and rode away on the victim’s bike. It was recovered by the police at your home address. You had attempted to remove and change parts on the bicycle, and in that process, some damage was caused.

[15] I have a victim impact statement that was made at the time of the offending which talks about the effect of your family violence offending on the victim.

[16] In terms of your personal circumstances, I have read the psychological report prepared by Shelly Lomas, a consultant clinical psychologist, dated 16 June 2020. That report was prepared to consider disposition of these charges.

[17] The report says you are aged 32. You are of Ngāti Kahungunu descent.

[18] You continue to deny the family violence offending and gave the same explanation to the report writer that I rejected in the Judge-alone trial.

[19] When your previous offending was discussed, the report writer states that you said that you had not been charged for violent assaults in the past. However, the report writer says that, in fact, you have six convictions in relation to weapons, six for assault, one for injuring with intent to injure, five for threatening or behaving threateningly, and two for wilful damage.

[20] In terms of your mental health history, the report says you stated that you had not had any engagement with mental health services. However, when you were

questioned about Puketiro Centre, you said you believed you had attended when you were about seven years old for auditory issues.

[21] However, the report writer then goes on to detail your interactions with mental health services, including the fact that you attended Puketiro Centre from 1994 to 1996, when your mother disclosed she had been emotionally and physically abusing you. In 1996, it was also disclosed that you had been sexually assaulted by another family member. You were seen again in 2001, when you were diagnosed with attention deficit hyperactivity disorder, conduct disorder, and oppositional defiant disorder.

[22] You were also reviewed for the purposes of providing a Court report in 2002, when you were 14 years old and before the Court on a range of violence charges. Dr Rawlinson, a consultant psychiatrist, prepared a report at that time, noting your offending included damage to property and assault with weapons.

[23] You were also seen in 2007 and 2008 because of attempted self-harm and suicide threats.

[24] In April 2017, it appears that you were seen in the prison clinic.

[25] In terms of your alcohol and other drugs history, it is apparent that you have a longstanding methamphetamine addiction. You said you started using in 2006 and 2007. Prior to being arrested, you were using one gram a day.

[26] You acknowledged that you were sexually assaulted by a resident when you were in the Weymouth Boys’ Home.

[27] In terms of gang affiliations, the report says that began when you were in Weymouth Boys’ Home You became a Black Power affiliate for 10 years and a patched member for three years. You started affiliating with Nomads in 2017 and stayed with them for two-and-a-half years. You said currently you have little communication with any gangs.

[28] The report writer concludes by saying that you experienced a disrupted childhood where you experienced deprivation and abuse. You had a lack of emotionally stabilising factors in your life, and there is a history of mental health issues in your family.

[29] The report says your attachment to your mother was disrupted by her poor mental health, her propensity towards being violent towards you, and your removal from the family home and your subsequent placement in a number of foster homes.

[30] The report says as a result of these issues, you experience ambivalence towards your mother, with feelings of anger alternating with a desire to have a positive relationship with her.

[31] The report says the sexual abuse that you suffered has never been effectively treated and will continue to contribute to your sense of anger and disengagement from authority or emotional relationships.

[32] The report says these factors place you at high risk of developing significant issues leading to aggressive outbursts, poor impulse control, and general affective dysfunction. Subsequently, you have become dependent on substances to help you manage your mood and emotions.

[33] The report concludes by saying without comprehensive treatment for your childhood issues including the sexual assaults and your use of substances to manage your emotions, you are likely to have further difficulties in managing your life and will most likely reappear in Court.

[34] The report makes various recommendations, including a suggestion that you require treatment to address your propensity for family violence within the settings of your intimate relationships. The report says you would benefit from dialectical behaviour therapy.

[35] The report also recommends ACC counselling, alcohol and drug counselling, and anger management counselling.

[36] I have also read the alcohol and other drug assessment dated 2 March 2019.

[37] That report says you have approximately 100 previous convictions. You were sent to prison for the first time at aged 17 and have now served numerous prison sentences. You said that as an adult, you have spent more time in prison than in the community. You acknowledge that you usually relapse to drug use almost immediately upon release.

[38] The report says that given the early onset of your methamphetamine addiction, you will need to attend long-term residential treatment such as at Odyssey House in Auckland or Moana House in Dunedin.

[39] You indicated to the report writer that you would like to attend Tai Aroha residential programme run by Corrections in Hamilton.

[40] I have also read the pre-sentence report dated 28 February 2020.

[41] That report says you showed some motivation to address your drug use and work towards the possibility of having contact with your daughter.

[42] The report says if you were to receive a long sentence of imprisonment, you could complete the drug treatment unit and you may qualify for the special treatment unit for tāne with violent offending or the Māori focus unit.

[43] Probation notes there have been concerns in the past with you threatening Corrections staff in March 2019 and when a home visit was completed at your bail address and, more recently, by threatening a prison nurse.

[44] The report says you are currently in the drug treatment unit, even though you are not a sentenced prisoner, and you have been able to participate in parts of the program. This is supported by the certificate you have presented today from the Rimutaka drug treatment unit dated 21 February 2020.

[45] Probation says while you have been in custody, you have been prescribed medication for depression and anxiety.

[46] You consented to a sentence of home detention and proposed your mother’s address in Gisborne for a sentence of home detention, but Police oppose you being given an electronically monitored sentence, and Probation doubt your ability to comply, given your significant history of non-compliance.

[47] I have also read the letter that you have written for the Court today.

[48] That letter does show a considerable degree of insight in that you say you have used drugs to deal with your grief instead of reaching out for help. You have said that you have made very poor choices, and you acknowledge the very unstable environment you grew up in. You are now acknowledging that sharing your emotions and asking for help is healthy and the right thing to do and will help you not further offend.

[49] You say during the 11 months you have been in custody, you have had the opportunity to do a number of courses as well as be in the drug treatment unit. You have also been attending AA and are looking at further rehab.

[50] I have read the submissions filed on behalf of the prosecution. Essentially, the prosecution submit that a starting point of four years’ imprisonment is appropriate. It is also submitted that there should be a moderate uplift for your previous convictions. A reparation order of $200 for the damage caused to the bicycle is also sought.

[51] I have also read the written submissions filed on your behalf by Ms Thistoll. She submits that a starting point of two years and three months’ imprisonment is appropriate for the lead charge of strangulation. She submits an uplift of seven months’ imprisonment is appropriate to reflect the remain offending and an end sentence of approximately two years and two months’ imprisonment is appropriate once discounts are applied to take into account your methamphetamine addiction, rehabilitative efforts, and mental health.

[52] The purposes of sentencing you today are to hold you accountable for the harm done to the victim and to promote in you a sense of responsibility for, and an

acknowledgement of, that harm. It is also to provide for the interests of the victims and to assist in your rehabilitation and reintegration.

[53] In sentencing you, I must take into account the gravity of your offending, the general desirability of consistency with appropriate sentencing levels, and I must impose the least restrictive outcome that is appropriate in the circumstances.

[54] In terms of the approach to sentencing, I adopt the charge of strangulation as the lead charge for the family violence offending.

[55] I consider the posting digital communication offence to be separate in time and nature, and I will impose a cumulative sentence for that matter.

[56] The unlawfully taking of the bicycle is obviously separate in time and nature.

[57] I now need to consider an appropriate starting point to reflect the nature and seriousness of your offending and your culpability.

[58] The aggravating factors of your family violence offending are as follows:

• (a) The victim was your partner at the time, and the offending occurred in her home, where she should feel safe;
  
• (b) She had a protection order in place;
  
• (c) Your offending occurred in the presence of the victim’s child;
  
• (d) You threatened to kill her; and
  
• (e) She suffered injuries, although those injuries were not long-term.
  

[59] In relation to the strangulation charge I accepted the victim’s evidence that you strangled her in the kitchen. She says you had your hand on her throat, and she was struggling to breathe. You were saying that you did not care if she died. She said she fell to the ground, and it was “all white.” She said she could not see anything.

[60] Having regard to the decisions of Ackland v Police, Houkamau v Police, T v Police, and the other decisions referred to in Ms Thistoll’s submissions, I am of the view that a starting point of 24 months’ imprisonment is appropriate for the strangulation charge. 1

[61] I consider an uplift of seven months is appropriate for the other family violence offending.

[62] I consider that a further six months’ imprisonment is appropriate for the posting digital communications offending, which is serious in its own right. In particular, that you posted the victims full name and address and threatened her for having made a complaint to the police.

[63] That takes the overall starting point to three years, one month’s imprisonment.

[64] I now need to consider whether your offending was aggravated or mitigated by your personal circumstances.

[65] The aggravating factors relating to you are your previous convictions, which I have already mentioned. I consider an uplift of three months to be appropriate, which takes the overall starting point to 40 months’ imprisonment, or three years, four months.

[66] The mitigating factors relating to you are the cultural and personal circumstances as outlined in the psychological report, the alcohol and other drug report, and the pre-sentence report that I have referred to. Also, the remorse you have shown in the letter you have written that I have referred to.

[67] I am of the view that an overall discount for mitigating factors of 20 percent is appropriate.

1 Ackland v Police [2019] NZHC 312; Houkamau v Police [2019] NZHC 2743; T v Police [2019] NZHC

3375.

[68] That reduces your sentence by eight months, which leaves an end point sentence of 32 months’ imprisonment, or two years, eight months.

[69] Because the family violence matters went to a Judge-alone trial, you are not entitled to any discount in respect of those matters. I do not think the guilty plea for the unlawful taking of the bicycle warrants any further discount given the strength of the evidence that is apparent on the face of the summary of facts in relation to that matter and the fact that I have not added any uplift for that charge.

[70] Standing back and looking in a broad way at the totality of your offending, I am satisfied that an overall sentence of two years, eight months’ imprisonment is appropriate in the circumstances.

[71] Release conditions will be set by the Parole Board, which I think is appropriate, particularly with regard to the reports I have referred to.

[72] I authorise release of the psychological report and the alcohol and other drug report to any treatment providers.

[73] Therefore, the sentence will be allocated as follows.

[74] On the charge of strangulation, you are convicted and sentenced to imprisonment for two years and three months, which I take as the lead sentence for the family violence matters.

[75] On the charge of assault on a person in a family relationship, you are convicted and sentenced to imprisonment for six months, which is concurrent.

[76] On the charge of breach of protection order, you are convicted and sentenced to imprisonment for six months, which is concurrent.

[77] On the charge of threatening to kill, you are convicted and sentenced to imprisonment for six months, which is concurrent.

[78] On the charge of posting a harmful digital communication, you are convicted and sentenced to imprisonment for five months, which is cumulative on the two years, three months imposed on CRN 1547.

[79] On the charge of unlawfully taking a bicycle, you are convicted and discharged. I am satisfied you do not have the means to pay reparation and therefore no order for reparation is made.

[80] Mr Hart, I acknowledge that you seem to have started on a journey, and it is not going to be an easy one. There are lots of very difficult and deep-seated issues for you to deal with. But I am really heartened that it seems from the time you have been able to spend in the drug treatment unit while on remand, that you have finally started to acknowledge the underlying causes of your offending. Until you do something about those, you know that you will just relapse into using methamphetamine so that you do not have to deal with all that stuff. And you know once you start using methamphetamine, you will be back here again, and we will just go around and around again.

[81] I really encourage you to make the most of any opportunities that are offered, either to complete the programme in the drug treatment unit as a sentenced prisoner, so you can fully participate, or see if you can be transferred to one of the specialist units. I really encourage you to take any opportunities for psychological counselling, ACC counselling, et cetera.

[82] I wish you all the best. I have been dealing with you for a very long time, and I really feel quite heartened today that for the first time in all the years I have been dealing with you, I think you have made some real acknowledgement of the causes of your offending and shown some real insight.

Judge J M Kelly

District Court Judge

Date of authentication: 20/07/2020

In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.